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Section 138

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Chapter IPreliminary

1Short title
2Definitions
3Power of State Government to exempt any race, sect or tribe in the State from operation of Act

Chapter IIOf Domicile

4Application of Part
5Law regulating succession to deceased person?s immoveable and moveable property, respectively
6One domicile only affects succession to moveables
7Domicile of origin of person of legitimate birth
8Domicile of origin of illegitimate child
9Continuance of domicile of origin
10Acquisition of new domicile
11Special mode of acquiring domicile in India
12Domicile not acquired by residence as representative of foreign Government, or as part of his family
13Continuance of new domicile
14Minor?s domicile
15Domicile acquired by woman on marriage
16Wife?s domicile during marriage
17Minor?s acquisition of new domicile
18Lunatic?s acquisition of new domicile
19Succession to moveable property in India in absence of proof of domicile elsewhere

Chapter IIIMarriage

20Interests and powers not acquired nor lost by marriage
21Effect of marriage between person domiciled and one not domiciled in India
22Settlement of minor?s property in contemplation of marriage

Chapter IVOf Consanguinity

23Application of Part
24Kindred or consanguinity
25Lineal consanguinity
26Collateral consanguinity
27Persons held for purpose of succession to be similarly related to deceased
28Mode of computing of degrees of kindred

Chapter VChapter I.--Preliminary · Chapter II.--Rules in cases of Intestates other than Parsis · Distribution where there are lineal descendant · Distribution where there are no lineal descendants · Chapter III.--Special Rules for Parsi Intestates

Chapter I.--Preliminary

29Application of Part
30As to what property deceased considered to have died intestate

Chapter II.--Rules in cases of Intestates other than Parsis

31Chapter not to apply to Parsis
32Devolution of such property
33Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred
33ASpecial provision where intestate has left widow and no lineal descendants
34Where intestate has left no widow, and where he has left no kindred
35Rights of widower

Distribution where there are lineal descendant

36Rules of distribution
37Where intestate has left child or children only
38Where intestate has left no child, but grandchild or grandchildren
39Where intestate has left only great-grandchildren or remoter lineal descendants
40Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead

Distribution where there are no lineal descendants

41Rules of distribution where intestate has left no lineal descendants
42Where intestate?s father living
43Where intestate?s father dead, but his mother, brothers and sisters living
44Where intestate?s father dead and his mother, a brother or sister, and children of any deceased brother or sister, living
45Where intestate?s father dead and his mother and children of any deceased brother or sister living
46Where intestate?s father dead, but his mother living and no brother, sister, nephew or niece
47Where intestate has left neither lineal descendant, nor father, nor mother
48Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister
49Children?s advancements not brought into hotchpot

Chapter III.--Special Rules for Parsi Intestates

50General principles relating to intestate succession
51Division of intestate?s property among widow, widower, children and parents
53Division of share of predeceased child of intestate leaving lineal descendants
54Division of property where intestate leaves no lineal descendant but leaves a widow or widower or a widow or widower of any lineal descendant
55Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendant
56Division of property where there is no relative entitled to succeed under the other provisions of this Chapter

Chapter VIChapter I.--Introductory · Chapter II--Of Wills and Codicils · Chapter III.--Of the Execution of unprivileged Wills · Chapter IV.--Of privileged Wills · Chapter V.--Of the Attestation, Revocation, Alteration and Revival of Wills · Chapter VI.--Of the construction of Wills · Chapter VII.--Of void Bequests · Chapter VIII.--Of the vesting of Legacies · Chapter IX.--Of Onerous Bequests · Chapter X.--Of Contingent Bequests · Chapter XI.--Of Conditional Bequests · Chapter XII.--Of Bequests with Directions as to Application or Enjoyment · Chapter XIII.--Of Bequests to an Executor · Chapter XIV.--Of Specific Legacies · Chapter XV.--Of Demonstrative Legacies · Chapter XVI.--Of Ademption of Legacies · Chapter XVIII.--Of Bequests of Things described in General Terms · Chapter XIX.--Of Bequests of the Interest or Produce of a Fund · Chapter XX.--Of Bequests of Annuities · Chapter XXI.--Of Legacies to creditors and Portioners · CHAPTER--XXII.--Of Election · Chapter XXIII.--Of Gifts in Contemplation of Death

Chapter I.--Introductory

57Application of certain provisions of Part to a class of wills made by Hindus, etc
58General application of Part

Chapter II--Of Wills and Codicils

59Person capable of making wills
60Testamentary guardian
61Will obtained by fraud, coercion or importunity
62Will may be revoked or altered

Chapter III.--Of the Execution of unprivileged Wills

63Execution of unprivileged wills
64Incorporation of papers by reference

Chapter IV.--Of privileged Wills

65Privileged wills
66Mode of making, and rules for executing, privileged wills

Chapter V.--Of the Attestation, Revocation, Alteration and Revival of Wills

67Effect of gift to attesting witness
68Witness not disqualified by interest or by being executor
69Revocation of will by testator?s marriage
70Revocation of unprivileged will or codicil
71Effect of obliteration, interlineation or alteration in unprivileged will
72Revocation of privileged will or codicil
73Revival of unprivileged will

Chapter VI.--Of the construction of Wills

74Wording of wills
75Inquiries to determine questions as to object or subject of will
76Misnomer or misdescription of object
77When words may be supplied
78Rejection of erroneous particulars in description of subject
79When part of description may not be rejected as erroneous
80Extrinsic evidence admissible in cases of patent ambiguity
81Extrinsic evidence inadmissible in case of patent ambiguity or deficiency
82Meaning or clause to be collected from entire Will
83When words may be understood in restricted sense, and when in sense wider than usual
84Which of two possible constructions preferred
85No part rejected, if it can be reasonably construed
86Interpretation of words repeated in different parts of will
87Testator?s intention to be effectuated as far as possible
88The last of two inconsistent clauses prevails
89Will or bequest void for uncertainty
90Words describing subject refer to property answering description at testator?s death
91Power of appointment executed by general bequest
92Implied gift to objects of power in default of appointment
93Bequest to ?heirs,? etc., of particular person without qualifying terms
94Bequest to “representatives”, etc., of particular person
95Bequest without words of limitation
96Bequest in alternative
97Effect of words describing a class added to bequest to person
98Bequest to class of persons under general description only
99Construction of terms
100Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate
101Rules of construction where will purports to make two bequests to same person
102Constitution of residuary legatee
103Property to which residuary legatee entitled
104Time of vesting legacy in general terms
105In what case legacy lapses
106Legacy does not lapse if one of two joint legatees die before testator
107Effect of words showing testator’s intention to give distinct shares
108When lapsed share goes as undisposed of
109When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s lifetime
110Bequest to A for benefit of B does not lapse by A’s death
111Survivorship in case of bequest to described class

Chapter VII.--Of void Bequests

112Bequest to person by particular description, who is not in existence at testator?s death
113Bequest to person not in existence at testator?s death subject to prior bequest
114Rule against perpetuity
115Bequest to a class some of whom may come under rules in sections 113 and 114
116Bequest to take effect on failure of prior bequest
117Effect of direction for accumulation
118Bequest to religious or charitable uses

Chapter VIII.--Of the vesting of Legacies

119Date of vesting of legacy when payment or possession postponed
120Date of vesting when legacy contingent upon specified uncertain event
121Vesting of interest in bequest to such members of a class as shall have attained particular age

Chapter IX.--Of Onerous Bequests

122Onerous bequests
123One of two separate and independent bequests to same person may be accepted, and other refused

Chapter X.--Of Contingent Bequests

124Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence
125Bequest to such of certain persons as shall be surviving at some period not specified

Chapter XI.--Of Conditional Bequests

126Bequest upon impossible condition
127Bequest upon illegal or immoral condition
128Fulfilment of condition precedent to vesting of legacy
129Bequest to A and on failure of prior bequest to B
130When second bequest not to take effect on failure of first
131Bequest over, conditional upon happening or not happening of specified uncertain event
132Condition must be strictly fulfilled
133Original bequest not affected by invalidity of second
134Bequest conditioned that it shall cease to have effect in case a specified uncertain event shall happen, or not happen
135Such condition must not be invalid under section 120
136Result of legatee rendering impossible or indefinitely postponing act for which no time specified, and on non-performance of which subject-matter to go over
137Performance of condition, precedent or subsequent, within specified time. Further time In case of fraud

Chapter XII.--Of Bequests with Directions as to Application or Enjoyment

138Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person
139Direction that mode of enjoyment of absolute bequest is to be restricted, to secure specified benefit for legatee
140Bequest of fund for certain purposes, some of which cannot be fulfilled

Chapter XIII.--Of Bequests to an Executor

141Legatee named as executor cannot take unless be shows intention to act as executor

Chapter XIV.--Of Specific Legacies

142Specific legacy defined
143Bequest of certain sum where stocks, etc., in which invested are described
144Bequest of stock where testator had, at date of will, equal or greater amount of stock of same kind
145Bequest of money where not payable until part of testator?s property disposed of in certain way
146When enumerated articles not deemed specifically bequeathed
147Retention, in form, of specific bequest to several persons in succession
148Sale and investment of proceeds of property bequeathed to two or more persons in succession
149Where deficiency of assets to pay legacies, specific legacy not to abate with general legacies

Chapter XV.--Of Demonstrative Legacies

150Demonstrative legacy defined
151Order of payment when legacy directed to be paid out of fund the subject of specific legacy

Chapter XVI.--Of Ademption of Legacies

152Ademption explained
153Non-ademption of demonstrative legacy
154Ademption of specific bequest of right to receive something from third party
155Ademption pro tanto by testator?s receipt of part of entire thing specifically bequeathed
156Ademption pro tanto by testator?s receipt of portion of entire fund of which portion has been specically bequeathed
157Order of payment where portion of fund specifically bequeathed to one legatee, and legacy charged on same fund to another, and, testator having received portion of that fund, remainder insufficient to pay both legacies
158Ademption where stock, specifically bequeathed, does not exist at testator?s death
159Ademption pro tanto where stock, specifically bequeathed, exists in part only at testator's death
160Non-ademption of specific bequest of goods described as connected with certain place, by reason of removal
161When removal of thing bequeathed does not constitute ademption
162When thing bequeathed is a valuable to be received by testator from third person; and testator himself, or his representative, receives it
163Change by operation of law of subject of specific bequest between date of will and testator?s death
164Change of subject without testator?s knowledge
165Stock specifically bequeathed lent to third party on condition that it be replaced
166Stock specifically bequeathed sold but replaced, and belonging to testator at his death
167Non-liability of executor to exonerate specific legatees
168Compeletion of testator?s title to things bequeathed to be at cost of his estate
169Exoneration of legatee?s immoveable property for which land-revenue or rent payable periodically
170Exoneration of specific legatee?s stock in joint-stock company

Chapter XVIII.--Of Bequests of Things described in General Terms

171Bequest of thing described in general terms

Chapter XIX.--Of Bequests of the Interest or Produce of a Fund

172Bequest of interest or produce of fund

Chapter XX.--Of Bequests of Annuities

173Annuity created by will payable for life only unless contrary intention appears by will
174Period of vesting where will directs that annuity be provided out of proceeds of property, or out of property generally, or where money bequeathed to be invested in purchase of annuity
175Abatement of annuity
176Where gift of annuity and residuary gift, whole annuity to be first satisfied

Chapter XXI.--Of Legacies to creditors and Portioners

177Creditor prima facie entitled to legacy as well as debt
178Child prima facie entitled to legacy as well as portion
179No ademption by-subsequent provision for legatee

CHAPTER--XXII.--Of Election

180Circumstances in which election takes place
181Devolution of interest relinquished by owner
182Testator?s belief as to his ownership immaterial
183Bequest for man?s benefit how regarded for purpose of election
184Person deriving benefit indirectly not put to election
185Person taking in individual capacity under will may In other character elect to take in opposition
186Exception to provisions of last six sections
187When acceptance of benefit given by will constitutes election to take under will
188Circumstances in which knowledge or waiver is presumed or inferred
189When testator?s representatives may call upon legatee to elect
190Postponement of election in case of disability

Chapter XXIII.--Of Gifts in Contemplation of Death

191Property transferable by gift made in contemplation of death

Chapter VIIProtection of Property of Deceased

192Person claiming right by succession to property of deceased may apply for relief against wrongful possession
193Inquiry made by Judge
194Procedure
195Appointment of curator pending determination of proceeding
196Powers conferrable on curator
197Prohibition of exercise of certain powers by curators
198Curator to give security and may receive remuneration
199Report from Collector where estate includes revenue paying land
200Institution and defence of suits
201Allowances to apparent owners pending custody by curator
202Accounts to be filed by curator
203Inspection of accounts and right of interested party to keep duplicate
204Bar to appointment of second curator for same property
205Limitation of time for application for curator
206Bar to enforcement of Part against public settlement or legal directions by deceased
207Court of Wards to be made curator in case of minors having property subject to its jurisdiction
208Saving of right to bring suit
209Effect of decision of summary proceeding
210Appointment of public curators

Chapter VIIIRepresentative Title to Property of Deceased on Succession

211Character and property of executor or administrator as such
212Right to intestate?s property
213Right as executor or legatee when established
214Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons
215Effection certificate of subsequent probate or letters of administration
216Grantee of probate or administration alone to sue, etc., until same revoked

Chapter IXProbate, Letters of Administration and Administration of Assets of Deceased

217Application of Part
218To whom administration may be granted, where deceased is a Hindu, Muhammadan, Budhist, Sikh, Jaina or exempted person
219Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person
220Effect of letters of administration
221Acts not validated by administration
222Probate only to appointed executor
223Persons to whom probate cannot be granted
224Grant of probate to several executors simultaneously or at different times
225Separate probate of codicil discovered after grant of probate
226Accrual of representation to surviving executor
227Effect of probate
228Administration, with copy annexed, of authenticated copy of will proved abroad
229Grant of administration where executor has not renounced
230Form and effect of renunciation of executorship
231Procedure where executor renounces or fails to accept within time limited
232Grant of administration to universal or residuary legatees
233Right to administration of representative of deceased residuary legatee
234Grant of administration where no executor, nor residuary legatee nor representative of such legatee
235Citation before grant of administration to legatee other than universal or residuary
236To whom administration may not be granted
236ALaying of rules before State Legislature
237Probate of copy or draft of lost will
238Probate of contents or lost of destroyed will
239Probate of copy where original exists
240Administration until will produced
241Administration, with will annexed, to attorney of absent executor
242Administration, with will annexed to attorney of a absent person who, if present, would be entitled to administer
243Administration to attorney of absent person entitled to administer in case of intestacy
244Administration during minority of sole executor or residuary legatee
245Administration during minority of several executors or residuary legatee
246Administration for use and benefit of lunatic or minor
247Administration pendente lite
248Probate limited to purpose specified in will
249Administration, with will annexed, limited to particular purpose
250Administration limited to property in which person has beneficial interest
251Administration limited to suit
252Administration limited to purpose of becoming party to suit to be brought against administrator
253Administration limited to collection and preservation of deceased’s property
254Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration
255Probate or administration, with will annexed, subject to exception
256Administration with exception
257Probate or administration of rest
258Grant of effects unadministered
259Rules as to grants of effects unadministered
260Administration when limited grant expired and still some part of estate unadministered
261What errors may be rectified by Court
262Procedure where codicil discovered after grant of administration with will annexed
263Revocation or annulment for just cause
264Jurisdiction of District Judge in granting and revoking probates, etc
265Power to appoint delegate of District Judge to deal with non-contentious cases
266District Judge’s powers as to grant of probate and administration
267District Judge may order person to produce testamentary papers
268Proceedings of District Judge’s Court in relation to probate and administration
269When and how District Judge to interfere for protection of property
270When probate or administration may be granted by District Judge
271Disposal of application made to Judge of district in which deceased had no fixed abode
272Probate and letters of administration may be granted by Delegate
273Conclusiveness of probate or letters of administration
274Transmission to High Courts of certificate of grants under proviso to section 273
275Conclusiveness of application for probate or administration if properly made and verified
276Petition for probate
277In what cases translation of will to be annexed to petition. Verification of translation by person other than Court translator
278Petition for letters of administration
279Addition to statement in petition, etc., for probate or letters of administration in certain cases
280Petition for probate, etc., to be signed and verified
281Verification of petition for probate, by one witness to will
282Punishment for false averment in petition or declaration
283Powers of District Judge
284Caveats against grant of probate or administration
285After entry of caveat, no proceeding taken on petition until after notice to caveator
286District Delegate when not to grant probate or administration
287Power to transmit statement to District Judge in doubtful cases where no contention
288Procedure where there is contention of District Delegate thinks probate or letters of administration should be refused in his Court
289Grant of probate to be under seal of Court
290Grant of letters of administration to be under seal of Court
291Administration-bond
292Assignment of administration-bond
293Time for grant of probate and administration
294Filing of original wills of which probate or administration with will annexed granted
295Procedure in contentious cases
296Surrender of revoked probate or letters of administration
297Payment to executor or administrator before probate or administration revoked
298Power to refuse letters of administration
299Appeals from orders of District Judge
300Concurrent jurisdiction of High Court
301Removal of executor or administrator and provision for successor
302Directions to executor or administrator
303Executor of his own wrong
304Liability of executor of his own wrong
305In respect of causes of action surviving deceased and debts due at death
306Demands and rights of action of or against deceased survive to and against executor or administrator
307Power of executor or administrator to dispose of property
308General powers of administration
309Commission or agency charges
310Purchase by executor or administrator of deceased’s property
311Powers of several executors or administrators exercisable by one
312Survival of powers on death of one of several executors or administrators
313Powers of administrator of effects unadministered
314Powers of administrator during minority
315Powers of married executrix or administratrix
316As to deceased’s funeral
317Inventory and account
318Inventory to include property in any part of India in certain cases
319As to property of, and debts owing to, deceased
320Expenses to be paid before all debts
321Expenses to be paid next after such expenses
322Wages for certain services to be next paid, and then other debts
323Save as aforesaid, all debts to be paid equally and rateably
324Application of moveable property to payment of debts where domicile not in India
325Debts to be paid before legacies
326Executor or administrator not bound to pay legacies without indemnity
327Abatement of general legacies
328Non-abatement of specific legacy when assets sufficient to pay debts
329Right under demonstrative legacy when assets sufficient to pay debts and necessary expenses
330Rateable abatement of specific legacies
331Legacies treated as general for purpose of abatement
332Assent necessary to complete legatee’s title
333Effect of executor’s assent to specific legacy
334Conditional assent
335Assent of executor to his own legacy
336Effect of executor’s assent
337Executor when to deliver legacies
338Commencement of annuity when no time fixed by will
339When annuity, to be paid quarterly or monthly, first falls due
340Dates of successive payments when first payment directed to be made within a given time or on day certain: death of annuitant before date of payment
341Investment of sum bequeathed, where legacy, not specific, given for life
342Investment of general legacy, to be paid at future time: disposal of intermediate, interest
343Procedure when no fund charged with, or appropriated to, annuity
344Transfer to residuary legatee of contingent bequest
345Investment of residue bequeathed for life, without direction to invest in particular securities
346Investment of residue bequeathed for life, with direction to invest in specified securities
347Time and manner of conversion and investment
348Procedure where minor entitled to immediate payment or possession of bequest, and no direction to pay to person on his behalf
349Legatee’s title to produce of specific legacy
350Residuary legatee’s title to produce of residuary fund
351Interest when no time fixed for payment of general legacy
352Interest when time fixed
353Rate of interest
354No interest on arrears of annuity within first year after testator’s death
355Interest on sum to be invested produce annuity
356Refund of legacy paid under Court’s orders
357No refund if paid voluntarily
358Refund when legacy has become due on performance of condition within further time allowed under section 137
359When each legatee compellable to refund in proportion
360Distribution of assets
361Creditor may call upon legatee to refund
362When legatee, not satisfied or compelled to refund under section 361, cannot oblige one paid in full to refund
363When unsatisfied legatee must first proceed against executor, if solvent
364Limit to refunding of one legatee to another
365Refunding to be without interest
366Residue after usual payments to be paid to residuary legatee
367Transfer of assets from India to executor or administrator in country of domicile for distribution
368Liability of executor or administrator for devastation
369Liability of executor or administrator for neglect to get any part of property

Chapter XSuccession Certificates

370Restriction on grant of certificates under this part
371Court having jurisdiction to grant certificate
372Application for certificate
373Procedure on application
374Contents of certificate
375Requisition of security from grantee of certificate
376Extension of certificate
377Forms of certificate and extended certificate
378Amendment of certificate in respect of powers as to securities
379Mode of collecting court-fees on certificates
380Local extent of certificate
381Effect of certificate
382Effect of certificate granted or extended by Indian representative in Foreign State and in certain other cases
383Revocation of certificate
384Appeal
385Effect on certificate of previous certificate, probate or letters of administration
386Validation of certain payments made in good faith to holder of invalid certificate
387Effect of decisions under this Act, and liability of holder of certificate thereunder
388Investiture of inferior courts with jurisdiction of District Court for purposes of this Act
389Surrender of superseded and invalid certificates
390Provisions with respect to certificates under Bombay Regulation VIII of 1827

Chapter XIMiscellaneous

391Saving
392[Repealed.]

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IS Act 138Chapter VI · Chapter XII.--Of Bequests with Directions as to Application or Enjoyment

Section 138 · Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person

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Where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.

Illustration

A sum of money is bequeathed towards purchasing a country residence for A, or to purchase an annuity for A, or to place A in any business. A choses to receive the legacy in money. He is entitled to do so.

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