VOID BEQUESTS

INTRODUCTION

Bequests are the transfers of wealth that occur upon a donor's death and that include transfers by the means

of a will or a trust. Bequests can take several forms such as:

Specific bequest - A certain amount of cash, securities, or property.

General bequest - Property that is similar to all other items distributed, usually cash.

Percentage bequest - A stated percentage of the donor's estate.

Residual bequest - All or a portion of what remains of the estate after specific and general bequests

are distributed.

Besides a straight bequest, you can also set up a trust that will benefit charitable organizations during or

after your lifetime. Another way to leave money is to name one or more nonprofit organizations as

beneficiaries of an insurance policy or as the recipient of your retirement fund. The Indian Succession Act,

1925 explains bequest upon impossible conditions under Sections 112 to 118.

LEGAL ASPECTS AND SECTIONS INVOLVED

SECTION 112

Bequest to person by particular description, who is not in existence at testator's death.-Where a

bequest is made to a person by a particular description, and there is no person in existence at the testator's

death who answers the description, the bequest is void.

Exception.--If property is bequeathed to a person described as standing in a particular degree of kindred to a

specified individual, but his possession of it is deferred until a time later than the death of the testator, by

reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the

testator, or comes into existence between that event and such later time, the property shall, at such later time,

go to that person, or, if he is dead, to his representatives.

Illustrations

(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is

void.

(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the

testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B's death the legacy goes to

C's son.

(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the

testator, C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies.

The legacy goes to the representative of D.

(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of C. Up to the

death of B, C has had no son. The bequest to C's eldest son is void.

(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of

the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B's death. C's

son is entitled to the 1,000 rupees.

SECTION 113

Bequest to person not in existence at testator's death subject to prior bequest.- Where a bequest is made

to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will,

the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the

thing bequeathed.

Illustrations

(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of

the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest

son is a bequest to a person not in existence at the testator's death. It is not bequest of the whole interest that

remains to the testator. The bequest to A's eldest son for his life is void.

(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has

daughters some of whom were not in existence at the testator's death. The bequest to A's daughters

comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A's

daughters is valid.

(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any of

them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life

and may be divisible among her children after her death. A has no daughters living at the time of the

testator's death, but has daughters born afterwards who survive him.

Here the direction for a settlement has the effect in the case of each daughter who marries under eighteen of

substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a

person not in existence at the time of the testator's death of something which is less than the whole interest

that remains to the testator in the thing bequeathed. The direction to settle the fund is void.

(iv) A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled

upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided

among her children after her death. B has no daughter living at the time of the testator's death. In this case

the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction

amounts to a bequest to persons not yet born, of a life-interest in the fund, that is to say, of something which

is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the

fund upon the daughters of B is void.

SECTION 114

Rule against perpetuity.- No bequest is valid whereby the vesting of the thing bequeathed may be delayed

beyond the life-time of one or more persons living at the testator's death and the minority of some person

who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing

bequeathed is to belong.

Illustrations

(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B's death to such of

the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first

attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more

than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may

thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B's

death is void.

(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B's death to such of

B's sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In

this case the sons of B are persons living at the time of the testator's decease, and the time when either of

them will attain 25 necessarily falls within his own lifetime. The bequest is valid.

(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B's

death it shall be divided amongst such of B's children as shall attain the age of 18, but that, if no child of B

shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest

at the expiration of 18 years from the death of B, a person living at the testator's decease. All the bequests

are valid.

(iv) A fund is bequeathed to trustees for the benefit of the testator's daughters, with a direction that, if any of

them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her

children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in

existence at his decease, and any portion of the fund which may eventually be settled as directed must vest

not later than 18 years from the death of the daughters whose share it was. All these provisions are valid.

SECTION 115

Bequest to a class some of whom may come under rules in sections 113 and 114.- If a bequest is made to

a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113 or

section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.

Illustrations

(i) A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A

survives the testator, and has some children living at the testator's death. Each child of A's living at the testator's

death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after

the testator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after

the decease of A. The bequest to A's children, therefor, is inoperative as to any child born after the testator's

death; and in regard to those who do not attain the age of 25 within 18 years after A's death, but is operative in

regard to the other children of A.

(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shall

attain the age of 25. B, C, D are children of A living at the testator's decease. In all other respects the case is

the same as that supposed in Illustration (i). Although the mention of B, C and D does not prevent the

bequest from being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the

children B, C or D, who attains the age of 25 within 18 years after A's death.

SECTION 116

Bequest to take effect on failure of prior bequest.- Where by reason of any of the rules contained in

sections 113 and 114, any bequest in favor of a person or of a class of persons is void in regard to such

person or the whole of such class, any bequest contained in the same will and intended to take effect after or

upon failure of such prior bequest is also void.

Illustrations

(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of

25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is

intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which

bequest is void under section 114. The bequest to B is void.

(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age

of 25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is

intended to take effect upon failure of the bequest to such of A's sons as shall first attain the age of 25, which

bequest is void under section 114. The bequest to B is void

SECTION 117

Effect of direction for accumulation.- (1) Where the terms of a will direct that the income arising from any

property shall be accumulated either wholly or in part during any period longer than a period of eighteen

years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent

to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of

such period of eighteen years the property and the income thereof shall be disposed of as if the period during

which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of--

(i) the payment of the debts of the testator or any other person taking any interest under the will, or

(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any

interest under the will, or

(iii) the preservation or maintenance of any property bequeathed; and such direction may be made

accordingly.

SECTION 118

Bequest to religious or charitable uses.- No man having a nephew or niece or any nearer relative shall

have power to bequeath any property to religious or charitable uses, except by a will executed not less than

twelve months before his death, and deposited within six months from its execution in some place provided

by law for the safe custody of the wills of living persons:

"Provided that nothing in this section shall apply to a Parsi."

Illustrations

A having a nephew makes a bequest by a will not executed and deposited as required

(i) For the relief of poor people;

(ii) For the maintenance of sick soldiers;

(iii) For the erection or support of a hospital;

(iv) For the support of scholars;

(v) For the erection or support of a school;

(vi) For the building and repairs of a bridge;

(vii) For the making of roads;

(viii) For the erection or support of a church;

(ix) For the repairs of a church;

(x) For the benefit of ministers of religion;

(xi) For the formation or support of a public garden;

All these bequests are void.

BEQUEST TO PERSON BY PARTICULAR DESCRIPTION, WHO IS NOT IN EXISTENCE AT

TESTATOR'S DEATH

Section 112 of the act deals with bequests to persons not in existence at the testators death and lays down

that such bequest are absolutely void. Where a gift is made to a person by a particular description, this

section requires, not only that they must have been in existence at the testator's death, but must also answer

the description at the testator's death. If on the face of a will, testator or testatrix has omitted certain words

and those words can be collected without reasonable doubt from the context and are necessary to effectuate

that intention, they can be supplied as a matter of construction. Where however the words in the will are

clear and unambiguous, no additional words can be added to cut down their plain meaning.

Bequest void for uncertainty - A Bequest in favor of a son of L or G is void for uncertainty and

extraneous evidence is not admissible to show which particular son of L or G was intended to be

benefited by the testator. Bequest void for uncertainty is well explained in Nakshetramali Dei v.

Brajasunder Das [A.I.R. 1933 Pat. 647].

An Unborn persons successive live, not inexistence - Successive life interests in favour of heirs of legatee

is void. The creation of succession life estates in favour of Bretons not in existence is not legally

permissible. An Unborn persons successive live, not inexistence is well explained in G. Narayanv. R.N.

Rafagpalan [A.I.R. 1987 Mad. 75]

Exception - Person answering the description was alive at the death of the life - Estate holder - A

testator by his will appointed his wife and nephew as his trustees and executors and gave all his properties to

the trustees upon certain trusts under which the wife was to enjoy the free use and income of his estate for

life. The will further empowered the wife to dispose of at the time of Tier death one-third share in the whole

estate in favor of any person and in any manner she chose as if that disposition had been made by the

testator himself. As regards the 2/3 estate remaining undisposed at the time of the wife's death, the will

directed that the surviving trustee should divide that 2/3 estate equally among all the brothers and sisters of

the testator alive when the will was made and that, should any of these predecease his wife, then the share

which the deceased would have received if alive should be given to child or children of the deceased. One of

the sisters of the testator who had survived the testator died unmarried and without issue during the lifetime

of the testators widow. On the death of the widow, the period of distribution of the 2/3 of the residuary estate

given to the testator's brothers and sisters having arrived, a question arose whether the estate of the deceased

sister was entitled to share in the distribution. Held, that the deceased sister's share of the residue vested in

her on the death of the testator subject to divestiture only in the event of her predeceasing the testator's

widow leaving child or children and such event not having occurred, her representative was entitled to her

share. Phillip Graham v. Philip Graham [A.I.R. 1939 P.C. 78] and Browne v. Moody [1936 A.C. 63 :

105 L.J.P.C] and Smitherv Willoek [1804 Ves. Jur. 233 : 32 E.R. 592] explains the concept very well. In

Debi Prosad v. Mst Krishna Kunwar, A testator devised his properties to his sons without power of

alienation and on their death to their sons and on their death to other persons. Held. that the bequest in so far

as it created life-estates in favor of his sons and in so far as it created life-estates on the death of those sons

in favor of those son's sons was good.

In Mathuranath v. Lakhi Narain, A Hindu made a will according to which after leaving certain

properties to his daughter he made provision for the performance of his Shradh and dedicated certain

properties to religious uses. He appointed his wife his executrix and Shebait and gave her power to appoint

her successor. The widow of the testator left a will by which she appointed a great-nephew of her deceased

husband, born after his death as shebait The heirs of the testator brought a suit for the construction of this

will. Judge Sanderson in his judgment said that it is applicable to hereditary office and endowment as well

as to other immovable property. In this case however in his judgment having regard to its terms, this will did

not create any hereditary office or endowment. Consequently in his judgment, the fact that the first

defendant was not alive at the time of the death of the testator does not make the appointment of the first

defendant as Shebait invalid.

Residuary bequest - It is well settled in England that a residuary gift of personal property comprises a

legacy of personal property which has failed by lapse or by being void ab inito. A case in reference is Smith

v. Smith

BEQUEST TO PERSON NOT IN EXISTENCE AT TESTATOR'S DEATH SUBJECT TO PRIOR

BEQUEST

Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior

bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining

interest of the testator in the thing bequeathed. By this section, a gift to an unborn person subject to a prior

bequest is void, unless it be an absolute gift of the whole remaining interest of the testator

A Successive life estates - Creation of successive life estates in favor of persons not in existence is not

permissible in law. [G.Narayanan v. R.N. Rqjagopalan, A.I.R. 1987 Mad. 75]

In Putlibai v. Sorabji, the testator by clause (9) of his will disposed of certain houses along with certain

furniture to his executors upon trust to permit his daughter during her life and until death or marriage,

whichever shall first happen, and also all his sons and also their respective families during as well as after

the respective lifetime of such respective sons, including the widow of any of his male lineal descendants, to

occupy the said houses and make use of the said furniture free of rent during their respective lifetime and

until the youngest of his grandsons living at the death of the last survivors of his sons shall attain the age of

18 years. By clause (10) provision was made for the maintenance and upkeep of all such of his children and

their respective families entitled to the right of residue as aforsaid, until the expiration of ten years from his

death or until the death of his last surving son, whichever should first happen. Clause (11) of the will

directed that on the expiration of 10 years or after the death of the last surviving son, whichever should first

happen, the properties (subject to the rights of residence already referred to) were to be divided into five

shares of which one was to go to each son, but for life only. If he died, the persons presumptively entitled to

the corpus under subsequent provisions were to have the income till the death of the last survivor of the five

sons. Then by clause (12) each son might by deed or will appoint in favour of his own sons or their lineal

descendants, and on failure of such issue in favour of his widow and daughters or their lineal descendants.

By clause (13), in default of the exercise of this power, the share of each son, if he had left a son or issue of

such son living at the death of the last survivor of the testators sons, was to be held for the sons of such son

and the issue of his predeceased sons per stirpes and if the son of the testator left no such son or issue then

for his widow and daughter and the issue of predeceased daughters. Viscount Haldone in delivering the

judgment observed: "Their Lordships concur in the view expressed in the judgments of the Court of Appeal

that these limitations contravene the provisions of Section 100. The bequests to the sons, daughters, widows

and issue of the testator's sons thus made do not in all possible instances dispose of the subject-matter to

which they apply, and so fail to comprise the whole of the remaining interest of the testator. It is obvious

that he has reserved contingent rights which might well prove to be of value. The unborn beneficiaries do

not take the whole interest indisposed of by reason of the title of his own sons being only for their lives. But

the difficulties are not exhausted by these considerations.

Clause 15 gives over the share in income and corpus alike of any beneficiary who alienates, in any of a

number of ways, and in that event creates a discretionary trust, which may extend, so far as the income is

concerned, only to a part of it, for the benefit according to the selection by the Trustees of some others, of a

class of beneficiaries somewhat wider than that of those who are to take under the clauses just referred to.

The sixteenth clause also puts an end to the title of every beneficiary who ceases to profess, or marries any

one not professing Zoroastrian faith, and gives the interest over in favor of those who take on the death of

such beneficiary. In the face of this clause it cannot be contended successfully that Section 100 is complied

with. For the whole of the remaining interest need not pass out of the hands of the Trustee if there is

forfeiture of the income of the sons of the testator". So the deferred bequest must comprise the whole of the

remaining interest of the testator in the thing bequeathed.

English law - The principle of this section is quite in conformity with the rule of English law. A case is

Vide Hay v. Earl of Coventry.

More than one prior bequest is permissible - In Damodar v. Aruna, the testator who had no male issue

but only daughter, K of ten years of age said : "The aforesaid K born to me by my wife Paru, becomes

entitled to all my properties and the proceeds thereof He then went on to say that he would manage the

property for the remainder of his life, that he and his wife during their lifetime would enjoy the property, and

that after they were dead their property "should be enjoyed by the daughter K and that the issues that might

be born to her," Held, that after the life-interest of the widow K obtained the property absolutely and that

the Will could not be interpreted as making a joint gift to K and such of her children as might be alive when

she came to enjoy the property. The bequest after the intervention of the life-interest as set out in this

exception vests in each member of the class as and when he or she comes into being and this is so although

he or she may die before the period of distribution in which case the representatives of such as have died

since the death of the testator would be entitled along with those alive at the period of distribution.

RULE AGAINST PERPETUITY

No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one

or more persons living at the testator's death and the minority of some person who shall be in existence at

the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

Bequest void of Remoteness - In England, there is no rule of law more absolute than that all property,

whatever be its nature, must be alienable within a life in being and 21 years after. The rule is of recent

growth and its terms were definitely laid down in the case of Cadell v. Palmer But under this section, the

additional period allowed after lives in being is not only dependent upon minority, but is allowed only for

the benefit of the infant who takes.

State of things at testator's death - In deciding the question of remoteness the state of things at the death of

the testator is only to be considered and not their state at the date of the will is to be considered. As in the

case Vanderplank v. King.

Lifetime of one or more persons - Here the life must be of a human being. But in England the rule can be

extended to the lives of animals as in case Re Dean [41 Ch. D. 552]. The contingency must happen within

the compass of a life or lives in being.

Successive life-estates - In a Madras case life estate was conferred on the legatee (which was valid).

Successive life estates were further created in favor of heirs of the legatee were held to be not valid.

Alienation and partition made by the legatee was not finding on the heirs (sons) of the legatee after his

death. Sons of the legatee would succeed to the properties after lifetime of life-estate succession life interest

cannot be created in favor of a person not in existence of G.N. Arayanan v. R.B. Rqjagopan [A.I.R. 1987].

Where Enjoyment is postponed - A gift is not void under this section where it vests within the prescribed

limits but its enjoyment is merely postponed. A gift to A for like and after his death to his children to be

divided share and share alike, when and as they should respectively attain the age of 24 years, etc. is a valid

gift. Here the child living at the death of the life-estate holder takes the gift as in Farmer v. Francis.

Rule against perpetuities and charitable gifts - A provision in will for the creation of trust and spending of

the income in scholarship for the children of three named families offends the rule against perpetuities and

is therefore void. Powell v. Compton. But a gift in trust for poor relations is a valid charitable gift.

Testamentary devises can be made in perpetuity by a Hindu testator for charitable and religious purposes. A

gift to family idol is valid.

Gift to an Idol not in existence - A Hindu deity is, in the contemplation of the Hindu, always in existence;

the establishment and consideration of a visible image is merely a manifestation. Hence the principle of

Hindu law which invalidates a gift other than to sentiment being capable of accepting it does not apply to

bequest to trustees for the establishment of an image and a worship of a Hindu deity after the testators death.

Under the English law is well settled that a gift for the advancement of religion in general terms, as for

instance, a gift to be employed 'in the service of our Lord and Master/ or 'for the worship of God' are valid.

In support of this proposition reference may be made to the decision in In re Darling (1896) 1 Ch. 50, and

Attorney-General v. Pearson. A bequest in favor of an unnamed deity is void for uncertainty.

Charge for Worship - Properties can be conferred to a legatee subject to a charge of worship Gopal Lai Sett

v. Purna Chundra.

Doctrine of Cypres - In construing a will bequeathing properties to a charity the primary rule is to ascertain

whether the object aimed at by the testator could be carried out without making a new will for him.

Although there may be vagueness in the selection of the places or in the allocation of the funds, so long as it

is ascertainable that the testator had a particular object in view and that he intended the funds left by him

should be appropriated to that object, courts are bound to see that the persons appointed by the testator do

not misappropriate the funds. If the court can ascertain that there was a general charitable intention, the fact

that the particular object for which the charity was intended did not exist or that the fund intended for that

charity could not exhaust the whole income will not be any reason for holding that the bequest failed either

wholly or in part. The doctrine of Cypres should receive as extended an application as possible so as to give

effect to the true intent and aim of the donor. His lapses, his ignorance, and his failure to understand the

situations should not fetter the courts so long as the purposes specified by him are not violated.

If a testator has manifested a general intention to give to charity, whether in general terms, or to charities of

a defined character or quality, the failure of the particular mode in which charitable intention is to be

effectuated shall not imperil the charitable gift. If the substantial intention is charitable the court will

substitute some other mode of carrying it into effect. If on the proper construction of the will the mode of

application is such an essential part of the gift that you cannot distinguish any general purpose of charity but

are obliged to say that the prescribed mode of doing the charitable act is the only one the testator intended or

at all contemplated, than the court cannot, if that mode fails, apply the money. Shaw v. Wills

Mohammedan Law - With the exception of a Waqf or a charitable gift, Mohammedan law does not favor

perpetuity. Where an estate was created which postponed the postponing the legacy beyond the minority of

the legatee was inoperative. Huseinbhoy v. Ahmedbhoy.

BEQUEST TO A CLASS SOME OF WHOM MAY COME UNDER RULES IN SECTIONS 113

AND 114

If a bequest Is made to a class of persons with regard to some of whom It Is Inoperative by reason of the

provisions of section 113 or section 114, such bequest shall be void In regard to those persons only, and not

in regard to the whole class.

Acceleration of Subsequent Bequest.This section is applicable only in cases where a prior bequest fails by

reason of any of the provisions of sections 113, 114 & 115.

Bequest to take effect on failure of prior bequest - Where by reason of any rules contained in section 113

and 114, any bequest in favor of a person or of a class of persons is void in regard to such person or of a

class of persons is void in regard to such persons or the whole of such class, any bequest contained in the

same will and intended to take effect after or upon failure of such prior bequest is also void

Effect of direction for accumulation - Where the terms of a will direct that the income arising from any

property shall be accumulated either wholly or in part during any period longer than a period of eighteen

years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent

to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of

such period of eighteen years the property and the income thereof shall be disposed of as if the period during

which the accumulation has been directed to be made, had elapsed.

This section shall not affect any direction/or accumulation/or the purpose of

(i) the payment of the debts of the testator or any other person taking any interest under the will or

(ii) the provision of portions for children or remoter issues of the testator or of any other person taking any in-

terest under the will or

(iii) the preservation or maintenance of any property bequeathed; and such direction may be made accord-

ingly.

Similar Law - This amended section corresponds to Sections 17 and 18 of the Transfer of Property Act,

which were substituted by Act XX of 1929.

Reason for the Amendment of 1929 - This section before its amendment and Section 17 of the T.P. Act

before its amendment allowed accumulations for a period of any year only in certain cases. In England, the

Thelluson Act allowed a much longer period. Moreover, in certain cases, the restriction against

accumulation was not applicable at all. Thus that Act allowed accumulations for the payment of debts and

for providing funds for children. Accumulations are also allowed in English law for maintaining property in

good repair, (1891) 2 Ch. 13. By the Accumulation Act, 1892, and by the Property Act, 1922, some more

exceptions were added to the rule enacted in the Thelluson Act. The whole law is now consolidated in

Sections 164-166 of the Property Act, 1925 (15 Geo. 5, c. 20). "In their report the second Indian Law

Commission remarked: As to the rule prohibiting accumulation we all should prefer the more liberal

enactments of the Thelluson Act (39 & 40 Geo. 3, c. 98), which allow an accumulation for 21 years and do

not affect provisions for payment of debts or for raising portions. But as the rule embodied in the Indian

Succession Act (1865), Section 104, has now been in force for 14 years, Mr. Stokes and Mr. West do not

pass for its alteration, Sir Charles Turner was, however, of opinion that the above exemptions were

frequently required by the circumstances of large zamindari properties. "It is, however, difficult to adopt the

English law contained in the Property Act, 1925, in its entirety. Section 164 prescribes four periods during

which accumulation can validly by directed, viz.,

(a) the life of the grantor or settler ;

(b) a term of 21 years from the death of the grantor, settler or testator

(c) the duration of the minority or respective minorities only of any person or persons living or en ventre sa

mere at the death of the grantor, settler or testator

(d) the duration of the minority or respective minorities only of any person or persons who under the

limitations of the instrument directing the accumulation would, for the time being, if of full age, be entitled

to the income directed to be accumulated.

"Rules regarding accumulation are closely connected with the rule against perpetuities. (Cheshire on

Modern Real Property, p. 482; Fearne on Contingent Remainders, p. 537.). The English rule of perpetuities

has a historical origin and has not been wholly adopted in India. According to the English law, the perpetuity

period is the life of any person of the survivor of any number of persons, who is or who are alive or en

ventra sa mere at the moment when the deed or the will which creates the interest begins to operate, plus a

period of 21 years from the time when such designated person dies [Cadell v. Palmer, (1833) 1 C.L. & F.

372]. The rules against perpetuities in India so far as transfer inter vivos is concerned are contained in

Sections 13 and 14. Under Section 14 no transfer of property can operate to create an interest which is to

take effect after the lifetime of one or more persons living at the date of such transfer and the minority of

some persons who shall be in existence at the expiration of that period, and to whom, if he attains full age,

the interest created is to belong. The periods in Section 164 of the Property Act, 1825, cannot be

incorporated in its entirety in the Transfer of Property Act without affecting the provisions of Sections 13

and 14. We, therefore, consider it desirable to permit accumulations during the following periods only

(1) the life of the transferor ; or

(2) a period of 18 years thereafter.

"This would avoid difficulty of construction. At the same time we think it desirable to accept certain well-

recognized exceptions in law such as those relating to provisions for the payment of debts, raising portions

for children and the repairs of the property transferred. Section 18, therefore, should be amended

accordingly" - Report o f the Select Committee.

Origin - Formerly the rule that fixed the period for which the vesting of property might be suspended,

regulated also the power of deferring its enjoyment; it being then permitted to a settler or testator to create

an accumulating trust absorbing the entire income during the full period for which the vesting might be

protracted, and whether it was or was not who proteracted. And no inconvenience appears to have been felt

in allowing so wide a range of accumulation, few persons having availed themselves of the permission to a

mischievous extent, until Mr. Thelluson made the extraordinary and well-known disposition of his immense

property, by virtue of which every child or more remote descendant born or rather procreated in his lifetime

were excluded from enjoyment, for the purpose of swelling to a princely magnitude, the fortune of some

remote and unascertained scions of the stock. The necessity then becomes apparent, of some preventing, by

legislative enactment the repetition of a scheme of disposition fraught with so much mischief and hardship.

This led to the Stat. 39 & 40, Geo. 3, 6, 38 (d) known as the Thelluson Act". Jarman on Wills,This section is

based on that Act. [Thelluson v. Woodford, 4 Ves. 227; 11 Ves. 112.]

Accumulate - The use of the word "accumulate" is not necessary to come within the rule. Neither express

direction to accumulate is necessary. Morgan v. Morgan, 4 De G. & S. 164; Tench v. Chases, 6 6 De. M &

G. 453; Macdon v. Boyce, 2 2 Ku. 276. A direction to "invest" or "capitalise" income, or to form a reserve

or guarantee fund, or the like, maybe sufficient. Mathews v. Keble, L.R. 3 Ch. 691; Re Dawson, 13 R. 633 :

Re Mason, L.R. (1891) 3 Ch. 467; Re Cox, (1900) W.N. 89. Indirect direction to accumulate comes within

the section. [Saw v. Rhodes, 1 My. & Cr. 135; Euans v. Hellier, 5 CI. & F. 114.]

Death of the testator - The period of eighteen years is to be calculated exclusive of the day of the testator's

death.

Such direction shall be void - It is well settled that a direction for accumulation exceeding the statutory

period, is good portent. The accumulation would be good for one year from the death of the testator though

void for the subsequent period. Langdonv. Simson. In the above case Sir William Grant M.R., decided that

the trust was good for the period allowed by the Statute, ie., twenty-one years. He further observed that if the

accumulation should continue twenty-four years, that would be good for twenty-one years.

BEQUEST TO TAKE EFFECT ON FAILURE OF PRIOR BEQUEST

Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or

of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the

same will and intended to take effect after or upon failure of such prior bequest is also void.

It is settled that any limitation depending or expectant upon a prior limitation which is void for remoteness is

invalid. The reason appears to be that the persons entitled under the subsequent limitation are not intended to

take unless and until the prior limitation exhausted : and as the prior limitation which is void for remoteness

can never come into operation, much less be exhausted, it is impossible to give effect to the intentions of the

settler in favour of the beneficiaries under the subsequent limitation." Where a gift over is void for

remoteness, all limitations ulterior to and dependent upon such invalid gift are also void. Proctor v. Bishop

of Bath and Wales. In Palmer v. Holford, 4 Russ. 403, a testator directed his trustees to transfer his funds to

the children of his son C.T.H., who should be living at the expiration of twenty-eight years from the

testator's decease except and eldest only son ; and in case no child should be then living over, Sir J. Leach,

M.R., said : "The expressed intention of the testator is that all the children of his son C.T.H, other than an

eldest son, should take, who were living at the expiration of twenty-eight years, and that no person should

take before the period. If C.T.H. had such children born to him at any time within seven years from the

testator's death, then the vesting of the interests of such children who were unborn at the death of the testator

would have been suspended for more than twenty-one years, and the gift therefore, is too remote and void ;

and the gifts over not being to take effect after the same period, which is too remote, are necessarily void

also." So the real reason of the gifts over not taking effect is not based upon the intention of the testator but

it is void for remoteness. As such the gift over would not take effect even if C.T.H. had no children. Miles v.

Harford. But there is a distinction where the gift over is to arise on an alternative event, one branch of which

is within, and the other is not within, the prescribed limits. Thus: A bequeaths B a house in case C die

without leaving sons, or in case such sons die without issue. C dies without leaving sons. The first

contingency having happened, the bequest to B is valid without reference to the other contingency. The rule

in this section is substantially in accord with English law by which, as a general rule, limitations following

upon limitations, void for perpetuity, are themselves void, whether within the line of perpetuity or not.

Where a bequest was made to great grandsons on their attaining majority, the testator not having any at his

death and in default of them in daughter's sons it was held that the latter was dependent upon and not

alternative to the first gift and therefore void under this section. Brojonath v. Ananda

EFFECT OF DIRECTION FOR ACCUMULATION

Where the terms of a will direct that the income arising from any property shall be accumulated either

wholly or in part during any period longer than a period of eighteen years from the death of the testator, such

direction shall, save as hereinafter provided, be void to the extent to which the period during which the

accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the

property and the income thereof shall be disposed of as if the period during which the accumulation has been

directed to be made, had elapsed.

Reason for the Amendment of 1929 - This section before its amendment and Section 17 of the T.P. Act

before its amendment allowed accumulations for a period of any year only in certain cases. In England, the

Thelluson Act allowed a much longer period. Moreover, in certain cases, the restriction against

accumulation was not applicable at all. Thus that Act allowed accumulations for the payment of debts and

for providing funds for children. Accumulations are also allowed in English law for maintaining property in

good repair, (1891) 2 Ch. 13. By the Accumulation Act, 1892, and by the Property Act, 1922, some more

exceptions were added to the rule enacted in the Thelluson Act. The whole law is now consolidated in

Sections 164-166 of the Property Act, 1925.

The English rule of perpetuities has a historical origin and has not been wholly adopted in India. According

to the English law, the perpetuity period is the life of any person of the survivor of any number of persons,

who is or who are alive or en ventra sa mere at the moment when the deed or the will which creates the

interest begins to operate, plus a period of 21 years from the time when such designated person dies [Cadell

v. Palmer, (1833) 1 C.L. & F. 372]. The rules against perpetuities in India so far as transfer inter vivos is

concerned are contained in Sections 13 and 14. Under Section 14 no transfer of property can operate to

create an interest which is to take effect after the lifetime of one or more persons living at the date of such

transfer and the minority of some persons who shall be in existence at the expiration of that period, and to

whom, if he attains full age, the interest created is to belong. The periods in Section 164 of the Property Act,

1825, cannot be incorporated in its entirety in the Transfer of Property Act without affecting the provisions

of Sections 13 and 14. We, therefore, consider it desirable to permit accumulations during the following

periods only:

(1) the life of the transferor ; or

(2) a period of 18 years thereafter.

"This would avoid difficulty of construction. At the same time we think it desirable to accept certain well-

recognised exceptions in law such as those relating to provisions for the payment of debts, raising portions

for children and the repairs of the property transferred. Section 18, therefore, should be amended

accordingly"

Such direction shall be void, etc - It is well settled that a direction for accumulation exceeding the statutory

period, is good protanto. The accumulation would be good for one year from the death of the testator though

void for the subsequent period. (Langdonv. Simson, 12 Ves. 295). In the above case Sir William Grant

M.R., decided that the trust was good for the period allowed by the Statute, ie., twenty-one years. He further

observed that if the accumulation should continue twenty-four years, that would be good for twenty-one

years.

In Oddie v. Brown , the testator directed his trustees to accumulate the interest until the principal together

with accumulation of interest should amount to "3,000 or thereabouts" and then to place out the same at

interest, and pay the interest equally amount certain specified legatees named in the will in equal shares

during their lives and the life of the survivor, etc. In the above case Lord Chancellor, Lord Chelmsford said :

"The trust for accumulation is good, to the extent of twenty-one years from the death of the testator.

Debts whether include future debts - Debts mentioned in this clause include not only debts due at the

testator's death, but also future debts accruing within the period mentioned in the section. Varlo v. Faden

Sub-section 2 (i) - Payment of debts - Section 164(2) of the Law of Property of the Accumulations Act,

1800, also provides that the said section does not extend to any provision for the payment of the debts of the

testator or any other person. So in this respect the Indian law is the same as the English law. So it is clear

that a direction for accumulation for payment of debts of the testator does not contravene the rule, against

perpetuities, and is therefore good, though its duration be unlimited.

Subsection (2) (ii) - The second exception which does not fall within the rule against accumulation is as

regards "the provision of portion for portion for children or remoter issue of the testator of any person taking

any interest under the will." In this respect the rule as laid down in Section 2 of Thelluson Act is the same.

Section 2 provides "that nothing in this Act contained shall extend to any provision for payment of debts to

any grantor, settler, or devisor, or other person or persons or to any provision for raising portions for any

child or children of any grantor, settler, or devisor, or any child or children of any person taking any interest

under any such conveyance, settlement, or devise, or to any direction touching the produce of timber or

wood, upon any lands or tenements ; but that all such provisions and directions shall and may be made and

given as if this Act had not been passed." This rule of the Thelluson Act was re-enacted by Section 164(2) of

the Law of Property Act, 1925. All that is required under this clause is that the children or remoter issue

must be children or remoter issue either of the testator or of a person taking an interest under the will, and as

such if the accumulation is for the portion of a class of children, some of whom take nothing under the will,

the exception does not apply.

The Indian Legislature has omitted the words "raising portions" and for these words substituted the words

"of portions"; as there is no difficulty as was pointed out in Garrington v. Liddel.

Sub-section (2) (iii) - Accumulations for preservation of any property - This clause is added in this

section to get over the difficulty to be raised in cases like Bassil v. Lister, 9 Hare 177, and commented upon

by Jarman at pp. 393-394 of his Law of Wills, 6th edn. In that case there was a direction in the will to apply

a sufficient part of the income of the testator's property in keeping up certain policies which he had effected

on the lives of his children in their names, and which in case of their marriage he directed to be settled on his

wives and children. In that case it was decided by Turner, V C , that it was not a trust for accumulation

within the Statute, and was, therefore, valid beyond the period of twenty-one years from his death. In that

case Turner, V C , said : "It was said in argument that the company were recipients of the income for the

purpose of accumulation; that what was done was the same thing as if the rents were paid to an individual, to

accumulate in his hands, and to be paid over at the death of the life insured; and the case was presented to

the court in many similar points of view; but I do not see how the payment of the premiums to the Insurance

Company out of the income is an accumulation of the income. The premiums, when paid to the Insurance

Company, become part of their general funds, subject to all their expenses; and although it is true that the

funds in the hands of the companies do generally produce accumulations, it is impossible to say what

accumulations arise from any particular premium." But according to Mr. Jarman the sum is no less the result

of accumulation because it is of certain amount.

Application of the Section to Will of Hindu - Before the amendment this section was not applicable to

Hindus, Buddhists, etc the substituted section now applies to the wills of the Hindus as by Section 14 of Act

XXI of 1929 and in Schedule III, Section 117 is inserted.

BEQUEST TO RELIGIOUS OR CHARITABLE USES

No man having a nephew or niece or any nearer relative shall have power to bequeath any property to

religious or charitable uses, except by a will executed not less than twelve months before his death, and

deposited within six months from its execution in some place provided by law for the safe custody of the

wills of living persons. Section 118 is not applicable to Hindus, Mohammadans, Buddhists, Sikhs or Jains as

per Section 58 of the Act. By Act 51 of 1991, a proviso was added to exclude Parsis also. Section 118 of the

Act is based on English Mortmain Act. That Act has now been repealed and replaced by the Mortmain and

Charitable Uses Act, 1888. Under that Act, every assurance of any hereditaments of any tenure, for any

charitable uses, is void aimless made with the requirement of the Act, and prohibited the gift by Will to a

charity of any interests in land. But by an amending Act of 1891, land maybe assured by will to or for the

benefit of any charitable use; but in such case it is required to be sold, as a rule, within one year from the

testator's death. The object of the above provision and the intention of the legislature in enacting this section

was to prevent deathbed bequests to charitable truths by persons having near relatives, and the section must

be construed in a sense which is in harmony with that intention and so as to give real meaning to each part of

the section, if that can be done without doing violence to the plain language thereof. The section plainly

means that to the extent to which the bequest is for religious or charitable uses, the application of this section

is attracted despite the fact that the bequest is only a part of the property or some interest in such property.

As already observed the section has no application in the case of Hindus and such a bequest made by a

Hindu for charitable and religious purposes is not governed by this Section, who are the near relations for

the purpose of Section 118 is to be determined according the Table of Consanguinity, vide Section 28,

Schedule 1. The term any nearer relative includes father mother, son, daughter, grandfather, grandmother,

grandson, granddaughter, brother or sister. The word relative' means legitimate relative and has no

application to any relationship by marriage. It includes adopted son also. So a Christian testator having a

nephew or niece or nearer relations must execute the Will at least 12 months before his death, otherwise the

bequest for religious or charitable use would be void. It must also be deposited according to the provisions

of this section, within six months of its execution in some place provided by law for the safe custody of wills

of living persons.

It was contended that Section 118 owes its origin to the statute of Mortmain and since the latter statue

is no more in force, there is no justification in retaining the impugned provision in the statute book.

Moreover, after the commencement of the Indian Constitution in 1950, it is contended that a pre-constitution

statute can remain in operation only if it is consistent with the provisions of the constitution. It is pointed out

that a Muhammadan can validly bequeath one third of his his net assets, when there are heirs. There is no

restriction on bequeathing property for relivious or charitable purposes. They only restriction as regards the

legators is that he should be of sound mind and he should not be minor. As regards the legatee it is stated

that if the legatee causes the death of the legator the will becomes void and ineffective. Under Muhammadan

law a Will can be lawfully made in favour of an individual, an institution, a non-Muslim, a minor and an

insane.

As regards the subject- matter, any property can form the subject of a will, and both corpus and usufructs

can be bequeathed. In the case of Hindus the founding of a temple or a charitable institution is considered as

an act of religious duty and has all the aspects of Dharma.

It was further contended that as per Section 118 of the Indian Succession Act 1925 bequest of property

for religious and charitable use fails, if, for any reason, the testator does not suffer from the misfortune of

death within 12 months of execution of the Will or if it is not deposited in the place provided by law within

six months, and that since as per the impugned provision a testator who lives beyond the statutory period of

12 months is not able to effectuate his wishes in relation to his property, the impugned provision defeats the

object of the will and is harsh, unjust and arbitrary. According to the petitioners, in order to survive the

challenge under Article 14, it must be established that the classification arising out of the impugned

provision is reasonable and that it has a nexus with the object sought to be achieved, and since in the instant

case the classification between bequests for religious and charitable use and bequests for other purposes is

unreasonable and since it has no nexus with the object sought to be achieved, the impugned provision is his

by Article 14 of the Constitution of India.

To stand the test of the Constitutional mandate of equality before law and equal protection of law in the

context of avoiding discrimination, the Act requires an amendment. If the Parliament does not remove the

discrimination, the Courts in exercise of their jurisdiction and to remedy violation of fundamental rights, are

bound to declare the impugned provision as invalid.

It is not merely a procedure but it is substantive law plus procedure. A substantive restriction is

imposed based on uncertain events over which the testator has no control. As pointed out by the Supreme

Court in Re Special Courts Bill, 1978 (AIR 1979 SC 478), whether an enactment providing for special

procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 of the

Constitution of India must be determined in each case and no general rule applicable to ail cases can safely

be laid. Practical assessment of the operation of the law in the particular circumstances is necessary. In the

instant case, Section 118 of the Act regarding religious bequests of all testators, viz. of Hindus, Mohani-

madans, Parsis, Jaina, etc. are not subjected to this procedure and the bequests by Chiistians alone is singled

out. Therefore, held that Section 118 of the Indian Su c c es si on Ac t regarding relegious and charitable

bequests is discriminatory and violative of Article 14 and 15 of the Constitution of India and it is necessary

that all testators who are similarly situated should be subjected to the same procedure. As the law stands

today, a christian cannot make a bequest for religious or charitable purposes without satisfying the

conditions and procedures prescribed by Section 118 of the Act. Such a burden, procedural burden and

substantive law burden is not falling upon Hindu, Muhammadan, Jains or Parsis testators. Articles 25, 26 (c)

and 26 (d) deal with the fundamental rights of freedom of conscience and free profession, practice and

propagation of religion and administering movable and immovable property by any religious denomination.

Such rights can be regulated by Secular Law.

In the above noted circumstances the court concluded as under:

(a) Discriminates against a Christain vis-a-vis non-Christain;

(b) Discriminates against testamentary disposition by a Christian vis-a-vis non-testamentary disposition;

(c) Discriminates against religious and charitable use of property vis-a-vis all other uses including not so

desirable purposes;

(d) Discriminates against a Christian who has a nephew, niece or nearest relative vis-a-vis a Christian who

has no relative at all; and

(e) discriminates against a Christian who dies within 12 months of actuation of the Will, of which he has no

control.

Therefore, Section 118 of Indian Succession Act held to be anomalous and anachronistic being violative of

Articles 14, 15, 25 and 26 of the Constitution of India and therefore, struck down as unconstitutional.

[Preman v. Union of India and others, AIR 1999 Ker. 93.]

It is well settled law that the word 'near relative' means legitimate relative'. The word has no application to

relationship by marriage. The object of Section 118 of the Act is to prohibit the death bed bequest to

religious or charitable uses by the persons having near relations such as father, mother, son, daughter,

grandson, grandmother, grandfather, grand-daughter, brother, sister, nephew, niece, except under the

conditions imposed by the Section. Therefore, it is clear that Section 118 of the Act refers to persons who

come within the relationship, only the near relatives mentioned above and none other. Under the

circumstances, the first contention of the petitioner that he is either the nephew or the nearer relative has to

be rejected. Similarly, the Executrix and her sister also cannot be treated as the nieces of the deceased. In

other words, they are not the nearer relations than the petitioner himself.

Where the petitioners and executors have failed to establish that they are either nephew or niece or the near

relatives. They have not contended in that petition that the Will is a forged one or that the testator was not in

sound state of mind. In other words, the validity of the Will has not been questioned on any other ground,

except the ground found under Section 118 of the Act. In view of this, it is now necessary to find out, as to

whether this will in invalid or void as the requirement of Section 118 of the Act was not satisfied. In AIR

1943 Bom. 317, Bai Cursetbai C. Dossabhoy v. Bai Hamabai Jehangir Wadia the Division Bench of the

Bombay High Court has beld:

"any bequest to charity is void under Section 118 unless the conditions laid down therein are complied

with. The bequest may be a direct bequest or contingent bequest. So long as it is a bequest to charity, the

words used in Section 118 are wide enough to make it applicable to bequests of any kind. But before a

bequest to charity can be held to be good under Section 118, the following conditions must be fulfilled:

(1) the testator has nephew or niece or any nearer relative and he is alive at the time of the death of the

testator

(2) the Will must be executed not less than 12 months before the death of the testator; and (3) it must be

deposited within six months from its execution in some place provided by law."

According to Section 118 of the Act if any one of the condition is not satisfied, the Will becomes void. But

that question would arise only if nephew, niece or nearer relatives are alive, and for other reasons, the

petitioner, and the executrix are not nephew, niece or nearer relative. On the other hand they are distant

relatives and they cannot invoke or seek assistance of Section 118 of the Act to question the validity of the

Will.

The respondent being a charitable institution was not aware of the relationship of the deceased with

any other persons. However, the petitioner stated that there is no other nearer relative than himself alive as

far as the deceased testatrix is concerned. While discussing the relationship of the petitioner and the

executrix with the deceased, it was found that they do not come within the purview of relations referred to in

Section 118 of the Act. Therefore both of them have no locus standi to question the validity of the will on

the ground that the deceased died within 12 months from the date of execution of the said Will and it was

not deposited as provided under law, etc. cannot be made available to the petitioner. Omission to issue cita-

tion to the petitioner cannot be a ground for revocation of Will.