The Indian Succession Act, 1925

Section 259. Rules as to grants of effects unadministered

In granting letters of administration of an estate not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall grant letters of administration to those persons only to whom original grants might have been made.

 

Section 260. Administration when limited grant expired and still some part of estate unadministered

When a limited grant has expired, by efflux of time, or the happening of the event or contingency on which it was limited, and there is still some part of the deceased’s estate unadministered, letters of administration shall be granted to those persons to whom original grants might have been made.

 

Chapter III – Alteration and Revocation of Grants

Section 261. What errors may be rectified by Court

Errors in names and descriptions, or in setting forth the time and place of the deceased’s death or the purpose in a limited grant, may be rectified by the Court and the grant of probate or letters of administration may be altered and amended accordingly.

 

Section 262. Procedure where codicil discovered after grant of administration with will annexed

If, after the grant of letters of administration with the will annexed, a codicil is discovered, it may be added to the grant on due proof and identification, and the grant may be altered and amended accordingly.

 

Section 263. Revocation or annulment for just cause

The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation.–Just cause shall be deemed to exist where–

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

Illustrations

(i) The Court by which the grant was made had no jurisdiction.

(ii) The grant was made without citing parties who ought to have been cited.

(iii) The will of which probate was obtained was forged or revoked.

(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.

(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.

(vi) Since probate was granted, a later will has been discovered.

(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.

(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind.

 

Chapter IV – Practice in granting and revoking Probates and Letters of Administration

Section 264. Jurisdiction of District Judge in granting and revoking probates, etc

(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.

(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, 1 shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.

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1. The words “and the province of Burma” omitted by the A. O. 1937.

 

Section 265. Power to appoint delegate of District Judge to deal with non-contentious cases

(1) The High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe:

Provided that, in the case of High Courts not established by Royal Charter, such appointments shall not be without the previous sanction of the State Government.

(2) Persons so appointed shall be called “District Delegates”.

 

Section 266. District Judge’s powers as to grant of probate and administration

The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.

 

Section 267. District Judge may order person to produce testamentary papers

(1) The District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.

(3) Such person shall be bound to answer truly such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit and had made such default.

(4) The costs of the proceeding shall be in the discretion of the Judge.

 

Section 268. Proceedings of District Judge’s Court in relation to probate and administration

The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. (5 of 1908.)

 

Section 269. When and how District Judge to interfere for protection of property

(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.

(2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate.

 

Section 270. When probate or administration may be granted by District Judge

Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.

 

Section 271. Disposal of application made to Judge of district in which deceased had no fixed abode

When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction.

 

Section 272. Probate and letters of administration may be granted by Delegate

Probate and letters of administration may, upon application for that purpose to any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the testator or intestate, as the case may be, at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

 

Section 273. Conclusiveness of probate or letters of administration

Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:

Provided that probates and letters of administration granted–

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees,

shall, unless otherwise directed by the grant, have like effect throughout 1[the other States 2].

3[The proviso to this section shall apply in 4[India] 5 after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.]

6[The proviso shall also apply in 4[India] 7 8 after the separation of Pakistan from India to probates and letters of administration granted before the date of the separation, or after that date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan.]

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1. Subs. by the A.O. 1948 for “the whole of British India”.

2. The words “of India” omitted by the A.O. 1950.

3. Ins. by the A.O. 1937.

4. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

5. 1st April, 1937.

6. Added by the A.O. 1948.

7. The words “of India” omitted by Act 42 of 1953, s. 4 and Sch. III.

8. 15th August, 1947.

 

Section 274. Transmission to High Courts of certificate of grants under proviso to section 273

(1) Where probate or letters of administration has or have been granted by a High Court or District Judge with the effect referred to in the proviso to section 273, the High Court or District Judge shall send a certificate thereof to the following Courts, namely:–

(a) when the grant has been made by a High Court, to each of the other High Courts;

(b) when the grant has been made by a District Judge, to the High Court to which such District Judge is subordinate and to each of the other High Courts.

(2) Every certificate referred to in sub-section (1) shall be made as nearly as circumstances admit in the form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.

(3) Where any portion of the assets has been stated by the petitioner, as hereinafter provided in sections 276 and 278, to be situate within the jurisdiction of a District Judge in another State, the Court required to send the certificate referred to in sub-section (1) shall send a copy thereof to such District Judge, and such copy shall be filed by the District Judge receiving the same.

 

Section 275. Conclusiveness of application for probate or administration if properly made and verified

The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court.

 

Section 276. Petition for probate

(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating–

(a) the time of the testator’s death.

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,–

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

 

Section 277. In what cases translation of will to be annexed to petition. Verification of translation by person other than Court translator

In cases wherein the will, copy or draft, is written in any language other than English or than that in ordinary use in proceedings before the Court, there shall be a translation thereof annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed; or, if the will, copy or draft, is in any other language, then by any person competent to translate the same, in which case such translation shall be verified by that person in the following manner, namely:–

“I (A.B.) do declare that I read and perfectly understand the language and character of the original, and that the above is a true and accurate translation thereof.”

 

Section 278. Petition for letters of administration

(1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating–

(a) the time and place of the destator’s death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner’s hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

 

Section 279. Addition to statement in petition, etc., for probate or letters of administration in certain cases

(1) Every person applying to any of the Courts mentioned in the proviso to section 273 for probate of a will or letters of administration of an estate intended to have effect throughout 1[India], shall state in his petition, in addition to the matters respectively required by section 276 and section 278, that to the best of his belief no application has been made to any other Court for a probate of the same will or for letters of administration of the same estate, intended to have such effect as last aforesaid,

or, where any such application has been made, the Court to which it was made, the person or persons by whom it was made and the proceedings (if any) had thereon.

(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks fit, reject the same.

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1. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

Section 280. Petition for probate, etc., to be signed and verified

The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner, namely:–

“I (A.B.), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.”

Section 281. Verification of petition for probate, by one witness to will

Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:–

“I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that

Section 282. Punishment for false averment in petition or declaration

If any petition or declaration which is hereby required to be verified contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under section 193 of the Indian Penal Code. (45 of 1860.)

Section 283. Powers of District Judge

(1) In all cases the District Judge or District Delegate may, if he thinks proper,–

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;

(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

(2) The citation shall be fixed up in some conspicuous part of the court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation.

Section 284. Caveats against grant of probate or administration

(1) Caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate.

(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge.

(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.

Form of caveat.

(4) The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V.

Section 285. After entry of caveat, no proceeding taken on petition until after notice to caveator

No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some other Delegate, until after such notice to the person by whom the same has been entered as the Court may think reasonable.

Section 286. District Delegate when not to grant probate or administration

A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.

Explanation.–“Contention” means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.

Section 287. Power to transmit statement to District Judge in doubtful cases where no contention

In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge.

Section 288. Procedure where there is contention, or District Delegate thinks probate or letters of administration should be refused in his Court

In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purposes of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge.

Section 289. Grant of probate to be under seal of Court

When it appears to the District Judge or District Delegate that probate of a will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI.

Section 290. Grant of letters of administration to be under seal of Court

When it appears to the District Judge or District Delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VII.

Section 291. Administration-bond

(1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person–

(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate.

(b) the District Judge may demand a like bond from any person to whom probate is granted.

Section 292. Assignment of administration-bond

The Court may, on application made by petition and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as the Court may think fit, assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all person interested, the full amount recoverable in respect of any breach thereof.

Section 293. Time for grant of probate and administration

No probate of a will shall be granted until after the expiration of seven clear

days, and no letters of administration shall be granted until after the expiration of fourteen clear days, from the day of the testator or intestate’s death.

Section 294. Filing of original wills of which probate or administration with will annexed granted

(1) Every District Judge, or District Delegate, shall file and preserve all original wills, of which probate or letters of administration with the will annexed may be granted by him, among the records of his Court, until some public registry for wills is established.

(2) The State Government shall make regulations for the preservation and inspection of the wills so filed.

 

Section 295. Procedure in contentious cases

In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908.) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

 

Section 296. Surrender of revoked probate or letters of administration

(1) When a grant of probate or letters of administration is revoked or annulled under this Act, the person to whom the grant was made shall forthwith deliver up the probate or letters to the Court which made the grant.

(2) If such person wilfully and without reasonable cause omits so to deliver up the probate or letters, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months, or with both.

 

Section 297. Payment to executor or administrator before probate or administration revoked

When a grant of probate or letters of administration is revoked, all payments bona fide made to any executor or administrator under such grant before the revocation thereof shall, notwithstanding such revocation, be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration may after wards be granted might have lawfully made.

 

Section 298. Power to refuse letters of administration

Notwithstanding anything hereinbefore contained, it shall, where the deceased was a Muhammadan, Buddhist or exempted person, or a Hindu, Sikh or Jaina to whom section 57 does not apply, be in the discretion of the Court to make an order refusing, for reasons to be recorded by it in writing, to grant any application for letters of administration made under this Act.

 

Section 299. Appeals from orders of District Judge

Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908.), applicable to appeals.

 

Section 300. Concurrent jurisdiction of High Court

(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay 1 shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.

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1. The words “and the province of Burma” omitted by the A. O. 1937.

Section 301. Removal of executor or administrator and provision for successor

The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.

 

Section 302. Directions to executor or administrator

Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof

 

Chapter V – Executors of their own Wrong

Section 303. Executor of his own wrong

A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong.

Exceptions.–(1) Intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property, does not make an executor of his own wrong.

(2) Dealing in the ordinary course of business with goods of the deceased received from another does not make an executor of his own wrong.

Illustrations

(i) A uses or gives away or sells some of the goods of the deceased, or takes them to satisfy his own debt or legacy or receives payment of the debts of the deceased. He is an executor of his own wrong.

(ii) A, having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods, continues to do so after he has become aware of his death. He is an executor of his own wrong in respect of acts done after he has become aware of the death of the deceased.

(iii) A sues as executor of the deceased, not being such. He is an executor of his own wrong.

 

Section 304. Liability of executor of his own wrong

When a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator, and payments made in due course of administration.

 

Chapter VI – Powers of an Executor or Administrator

Section 305. In respect of causes of action surviving deceased and debts due at death

An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased has when living.

 

Section 306. Demands and rights of action of or against deceased survive to and against executor or administrator

All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, (45 of 1860.) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

Illustrations

(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.

(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.

 

Section 307. Power of executor or administrator to dispose of property

(1) Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit.

Illustrations

(i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The bale is valid.

(ii) The executor in the exercise of his discretion mortgages a part of the immoveable estate of the deceased. The mortgage is valid.

(2) If the deceased was Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by subsection (1) shall be subject to the following restrictions and conditions, namely:–

(i) The power of an executor to dispose of immoveable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.

(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,–

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immoveable property for the time being vested in him under section 211, or

(b) lease any such property for a term exceeding five years.

(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person interested in the property.

(3) Before any probate or letters of administration is or are granted in such a case, there shall be endorsed thereon or annexed thereto a copy of sub-section (1) and clauses (i) and (iii) of subsection (2) or of sub-section (1) and clauses (ii) and (iii) of subsection (2), as the case may be.

(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by subsection (3) not having been made thereon or attached thereto, not shall the absence of such an endorsement or annexure authorise an executor or administrator to act otherwise than in accordance with the provisions of this section.

Section 308. General powers of administration

An executor or administrator may, in addition to, and not in derogation of, any other powers of expenditure lawfully exercisable by him incur expenditure–

(a) on such acts as may be necessary for the proper care or management of any property belonging to any estate administered by him, and

(b) with the sanction of the High Court, on such religious, charitable and other objects, and on such improvements, as may be reasonable and proper in the case of such property.

Section 309. Commission or agency charges

An executor or administrator shall not be entitled to receive or retain any commission or agency charges at a higher rate than that for the time being fixed in respect of the Administrator-General by or under the Administrator-General’s Act, 1913 (3 of 1913).

 

Section 310. Purchase by executor or administrator of deceased’s property

If any executor or administrator purchases, either directly or indirectly, any part of the property of the deceased, the sale is voidable at the instance of any other person interested in the property sold.

 

Section 311. Powers of several executors or administrators exercisable by one

When there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration.

Illustrations

(i) One of several executors has power to release a debt due to the deceased.

(ii) One has power to surrender a lease.

(iii) One has power to sell the property of the deceased whether moveable or immoveable.

(iv) One has power to assent to a legacy.

(v) One has power to endorse a promissory note payable to the deceased.

(vi) The will appoints A, B, C and D to be executors, and directs that two of them shall be a quorum. No act can be done by a single executor.

 

Section 312. Survival of powers on death of one of several executors or administrators

Upon the death of one or more of several executors or administrators, in the absence of any direction to the contrary in the will or grant of letters of administration, all the powers of the office become vested in the survivors or survivor.

 

Section 313. Powers of administrator of effects unadministered

The administrator of effects unadministered has, with respect to such effects, the same powers as the original executor or administrator.

 

Section 314. Powers of administrator during minority

An administrator during minority has all the powers of an ordinary administrator.

 

Section 315. Powers of married executrix or administratrix

When a grant of probate or letters of administration has been made to a married woman, she has all the powers of an ordinary executor or administrator.

 

Chapter VII – Duties of an Executor or Administrator

Section 316. As to deceased’s funeral

It is the duty of an executor to provide funds for the performance of the necessary funeral ceremonies of the deceased in a manner suitable to his condition, if he has left property sufficient for the purpose.

 

Section 317. Inventory and account

(1) An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the Court which granted the probate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner, within one year from the grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of.

(2) The High Court may prescribe the form in which an inventory or account under this section is to be exhibited.

(3) If an executor or administrator, on being required by the Court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition, he shall be deemed to have committed an offence under section 176 of the Indian Penal Code (45 of 1860.).

(4) The exhibition of an intentionally false inventory or account under this section shall be deemed to be an offence under section 193 of that Code.

 

Section 318. Inventory to include property in any part of India in certain cases

In all cases where a grant has been made of probate or letters of administration intended to have effect throughout 1[India] 2, the executor or administrator shall include in the inventory of the effects of the deceased all his moveable and immoveable property situate in 1[India], and the value of such property situate in each state shall be separately stated in such inventory, and the probate or letters of administration shall be chargeable with a fee corresponding to the entire amount or value of the property affected thereby wheresoever situate within 1[India].

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1. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

2. The words “of India” omitted by Act 48 of 1952, s. 3 and Sch. II.

 

Section 319. As to property of, and debts owing to, deceased

The executor or administrator shall collect, with reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.

 

Section 320. Expenses to be paid before all debts

Funeral expenses to a reasonable amount, according to the degree and quality of the deceased, and death-bed charges, including fees for medical attendance, and board and lodging for one month previous to his death, shall be paid before all debts.

 

Section 321. Expenses to be paid next after such expenses

The expenses of obtaining probate or letters of administration, including the costs incurred for or in respect of any judicial proceedings that may be necessary for administering the estate, shall be paid next after the funeral expenses and death-bed charges.

 

Section 322. Wages for certain services to be next paid, and then other debts

Wages due for services rendered to the deceased within three months next preceding his death by any labourer, artizan or domestic servant shall next be paid, and then the other debts of the deceased according to their respective priorities (if any).

 

Section 323. Save as aforesaid, all debts to be paid equally and rateably

Save as aforesaid, no creditor shall have a right of priority over another; but the executor or administrator shall pay all such debts as he knows of, including his own, equally and rateably as far as the assets of the deceased will extend.

 

Section 324. Application of moveable property to payment of debts where domicile not in India

(1) If the domicile of the deceased was not in 1[India], the application of his moveable property to the payment of his debts is to be regulated by the law of 1[India].

(2) No creditor who has received payment of a part of his debt by virtue of sub-section (1) shall be entitled to share in the proceeds of the immoveable estate of the deceased unless he brings such payment into account for the benefit of the other creditors.

(3) This section shall not apply where the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person.

Illustration

A dies, having his domicile in a country where instruments under seal have priority over instruments not under seal leaving moveable property to the value of 5,000 rupees, and immoveable property to the value of 10,000 rupees, debts on instruments under seal to the amount of 10,000 rupees, and debts on instruments not under seal to the same amount. The creditors holding instruments under seal receive half of their debts out of the proceeds of the moveable estate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not under seal until one-half of such debts has been discharged. This will leave 5,000 rupees which are to be distributed rateably amongst all the creditors without distinction, in proportion to the amount which may remain due to them.

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1. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

 

Section 325. Debts to be paid before legacies

Debts of every description must be paid before any legacy.

 

Section 326. Executor or administrator not bound to pay legacies without indemnity

If the estate of the deceased is subject to any contingent liabilities, an executor or administrator is not bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due.

 

Section 327. Abatement of general legacies

If the assets, after payment of debts, necessary expenses and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal proportions, and, in the absence of any direction to the contrary in the will, the executor has no right to pay one legatee in preference to another, or to retain any money on account of a legacy to himself or to any person for whom he is a trustee.

 

Section 328. Non-abatement of specific legacy when assets sufficient to pay debts

Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the thing specified must be delivered to the legatee without any abatement.

 

Section 329. Right under demonstrative legacy when assets sufficient to pay debts and necessary expenses

Where there is a demonstrative legacy, and the assets are sufficient for the payment of debts and necessary expenses, the legatee has a preferential claim for payment of his legacy out of the fund from which the legacy is directed to be paid until such fund is exhausted and if, after the fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder against the general assets as for a legacy of the amount of such unpaid remainder.

Section 330. Rateable abatement of specific legacies

If the assets are not sufficient to answer the debts and the specific legacies, an abatement shall be made from the latter rateably in proportion to their respective amounts.

Illustration

A has bequeathed to B a diamond ring valued at 500 rupees, and to C a horse, valued at 1,000 rupees. It is found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only 1,000 rupees. Of this sum rupees 333-5-4 are to be paid to B, and rupees 666-10-8 to C.

 

Section 331. Legacies treated as general for purpose of abatement

For the purpose of abatement, a legacy for life, a sum appropriated by the will to produce an annuity, and the value of an annuity when no sum has been appropriated to produce it, shall be treated as general legacies.

 

Chapter VIII – Assent to a Legacy by Executor or Administrator

Section 332. Assent necessary to complete legatee’s title

The assent of the executor or administrator is necessary to complete a legatee’s title to his legacy.

Illustrations

(i) A by his will bequeaths to B his Government paper which is in deposit with the Imperial Bank of India. The Bank has no authority to deliver the securities, nor B a right to take possession of them, without the assent of the executor.

(ii) A by his will has bequeathed to C his house in Calcutta in the tenancy of B. C is not entitled to receive the rents without the assent of the executor or administrator.

 

Section 333. Effect of executor’s assent to specific legacy

(1) The assent of the executor or administrator to a specific bequest shall be sufficient to divest his interest as executor or administrator therein, and to transfer the subject of the bequest of the legatee, unless the nature or the circumstances of the property require that it shall be transferred in a particular way.

(2) This assent may be verbal, and it may be either express or implied from the conduct of the executor or administrator.

Illustrations

(i) A horse is bequeathed. The executor requests the legatee to dispose of it, or a third party proposes to purchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied.

(ii) The interest of a fund is directed by the will to be applied for the maintenance of the legatee during his minority. The executor commences so to apply it. This is an assent to the whole of the bequest.

(iii) A bequest is made of a fund to A and after him to B. The executor pays the interest of the fund to A. This is an implied assent to the bequest to B.

(iv) Executors die after paying all the debts of the testator, but before satisfaction of specific legacies. Assent to the legacies may be presumed.

(v) A person to whom a specific article has been bequeathed takes possession of it and retains it without any objection on the part of the executor. His assent may be presumed.

Section 334. Conditional assent

The assent of an executor or administrator to a legacy may be conditional, and if the condition is one which he has a right to enforce, and it is not performed, there is no assent.

Illustrations

(i) A bequeaths to B his lands of Sultanpur, which at the date of the will, and at the death of A, were subject to a mortgage for 10,000 rupees. The executor assents to the bequest, on condition that B shall within a limited time pay the amount due on the mortgage at the testator’s death. The amount is not paid. There is no assent.

(ii) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The payment is not made. The assent is nevertheless valid.

 

Section 335. Assent of executor to his own legacy

(1) When the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to it, in the same way as it is required when the bequest is to another person, and his assent may, in like manner, be expressed or implied.

(2) Assent shall be implied if in his manner of administering the property he does any act which is referable to his character of legatee and is not referable to his character of executor or administrator.

Illustration

An executor takes the rent of a house or the interest of Government securities bequeathed to him, and applies it to his own use. This is assent

 

Section 336. Effect of executor’s assent

The assent of the executor or administrator to a legacy gives effect to it from the death of the testator.

Illustrations

(i) A legatee sells his legacy before it is assented to by the executor. The executor’s subsequent assent operates for the benefit of the purchaser and completes his title to the legacy.

(ii) A bequeaths 1,000 rupees to B with interest from his death. The executor does not assent to his legacy until the expiration of a year from A’s death. B is entitled to interest from the death of A.

 

Section 337. Executor when to deliver legacies

An executor or administrator is not bound to pay or deliver any legacy until the expiration of one year from the testator’s death.

Illustration

A by his will directs his legacies to be paid within six months after his death. The executor is not bound to pay them before the expiration of a year.

 

Chapter IX – Payment and Apportionment of Annuities

Section 338. Commencement of annuity when no time fixed by will

Where an annuity is given by a will and no time is fixed for its commencement, it shall commence from the testator’s death, and the first payment shall be made at the expiration of a year next after that event.

 

Section 339. When annuity, to be paid quarterly or monthly, first falls due

Where there is a direction that the annuity shall be paid quarterly or monthly, the first payment shall be due at the end of the first quarter or first month, as the case may be, after the testator’s death; and shall, if the executor or administrator thinks fit, be paid when due, but the executor or administrator shall not be bound to pay it till the end of the year.

 

Section 340. Dates 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

(1) Where there is a direction that the first payment of an annuity shall be made within one month or any other division of time from the death of the testator, or on a day certain, the successive payments are to be made on the anniversary of the earliest day on which the will authorises the first payment to be made.

(2) If the annuitant dies in the interval between the times of payment, an apportioned share of the annuity shall be paid to his representative.

 

Chapter X – Investment of Funds to provide for Legacies

Section 341. Investment of sum bequeathed, where legacy, not specific, given for life

Where a legacy, not being a specific legacy, is given for life, the sum bequeathed shall at the end of the year be invested in such securities as the High Court may by any general rule authorise or direct, and the proceeds thereof shall be paid to the legatee as the same shall accrue due.

 

Section 342. Investment of general legacy, to be paid at future time: disposal of intermediate interest

(1) Where a general legacy is given to be paid at a future time, the executor or administrator shall invest a sum sufficient to meet it in securities of the kind mentioned in section 341.

(2) The intermediate interest shall form part of the residue of the testator’s estate.

 

Section 343. Procedure when no fund charged with, or appropriated to, annuity

Where an annuity is given and no fund is charged with its payment or appropriated by the will to answer it, a Government annuity of the specified amount shall be purchased, or, if no such annuity can be obtained, then a sum sufficient to produce the annuity shall be invested for that purpose in securities of the kind mentioned in section 341.

 

Section 344. Transfer to residuary legatee of contingent bequest

Where a bequest is contingent, the executor or administrator is not bound to invest the amount of the legacy, but may transfer the whole residue of the estate to the residuary legatee, if any, on his giving sufficient security for the payment of the legacy, if it shall become due.

 

Section 345. Investment of residue bequeathed for life, without direction to invest in particular securities

(1) Where the testator has bequeathed the residue of his estate to a person for life without any direction to invest it in any particular securities, so much thereof as is not at the time of the testator’s decease invested in securities of the kind mentioned in section 341 shall be converted into money and invested in such securities.

(2) This section shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person.

 

Section 346. Investment of residue bequeathed for life, with direction to invest in specified securities

When the testator has bequeathed the residue of his estate to a person for life with a direction that it shall be invested in certain specified securities, so much of the estate as is not at the time of his death invested in securities of the specified kind shall be converted into money and invested in such securities.

 

Section 347. Time and manner of conversion and investment

Such conversion and investment as are contemplated by sections 345 and 346 shall be made at such times and in such manner as the executor or administrator thinks fit; and, until such conversion and investment are completed, the person who would be for the time being entitled to the income of the fund when so invested shall receive interest at the rate of 4 per cent. per annum upon the market-value (to be computed as at the date of the testator’s death) of such part of the fund as has not been so invested:

Provided that the rate of interest prior to completion of investment shall be six per cent. per annum when the testator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person.

 

Section 348. Procedure where minor entitled to immediate payment or possession of bequest, and no direction to pay to person on his behalf

(1) Where, by the terms of a bequest, the legatee is entitled to the immediate payment or possession of the money or thing bequeathed, but is a minor, and there is no direction in the will to pay it to any person on his behalf, the executor or administrator shall pay or deliver the same into the Court of the District Judge, by whom or by whose District Delegate the probate was, or letters of administration with the will annexed were, granted to the account of the legatee, unless the legatee is a ward of the Court of Wards.

(2) If the legatee is a ward of the Court of Wards, the legacy shall be paid to the Court of Wards to his account.

(3) Such payment into the Court of the District Judge, or to the Court of Wards, as the case may be, shall be a sufficient discharge for the money so paid.

(4) Money when paid in under this section shall be invested in the purchase of Government securities, which, with the interest thereon, shall be transferred or paid to the person entitled thereto, or otherwise applied for his benefit, as the Judge or the Court of Wards, as the case may be, may direct.

 

Section 349. Legatee’s title to produce of specific legacy

The legatee of a specific legacy is entitled to the clear produce thereof, if any, from the testator’s death.

Exception.–A specific bequest, contingent in its terms, does not comprise the produce of the legacy between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the residue of the testator’s estate.

Illustrations

(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep are shorn or some of the ewes produce lambs. The wool and lambs are the property of B.

(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest which falls due between the death of A and the death of C belongs to B, and must, unless he is a minor, be paid to him as it is received.

(iii) The testator bequeaths all his four per cent. Government promissory notes to A when he shall complete the age of 18. A, if he completes that age, is entitled to receive the notes, but the interest which accuse in respect of them between the testator’s death and A’s completing 18, form part of the residue.

 

Chapter XI – Produce and Interest of Legacies

Section 350. Residuary legatee’s title to produce of residuary fund

The legatee under a general residuary fund from the testator’s death.

Exception.–A general residuary bequest contingent in its terms does not comprise the income which may accrue upon the fund bequeathed between the death of the testator and the vesting of the legacy. Such income goes as undisposed of.

Illustrations

(i) The testator bequeaths the residue of his property to A, a minor, to be paid to him when he shall complete the age of 18. The income from the testator’s death belongs to A.

(ii) The testator bequeaths the residue of his property to A when he shall complete the age of 18. A, if he completes that age, is entitled to receive the residue. The income which has accrued in respect of it since the testator’s death goes as undisposed of.

 

Section 351. Interest when no time fixed for payment of general legacy

Where no time has been fixed for the payment of a general legacy, interest beings to run from expiration of one year from the testator’s death.

Exception.–(1) Where the legacy is bequeathed in satisfaction of a debt, interest runs from the death of the testator.

(2) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee, the legacy shall bear interest from the death of the testator.

(3) Where a sum is bequeathed to a minor with a direction to pay for his maintenance out of it, interest is payable from the death of the testator.

 

Section 352. Interest when time fixed

Where a time has been fixed for the payment of a general legacy, interest begins to run from the time so fixed. The interest up to such time forms part of the residue of the testator’s estate.

Exception.–Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee and the legatee is a minor, the legacy shall bear interest from the death of the testator, unless a specific sum is given by the will for maintenance, or unless the will contains a direction to the contrary.

 

Section 353. Rate of interest

The rate of interest shall be four per cent. per annum in all cases except when the testator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, in which case it shall be six per cent. per annum.

 

Section 354. No interest on arrears of annuity within first year after testator’s death

No interest is payable on the arrears of an annuity within the first year from the death of the testator, although a period earlier than the expiration of that year may have been fixed by the will for making the first payment of the annuity.

 

Section 355. Interest on sum to be invested to produce annuity

Where a sum of money is directed to be invested to produce an annuity, interest is payable on it from the death of the testator.

 

Chapter XII – Refunding of Legacies

Section 356. Refund of legacy paid under Court’s orders

When an executor or administrator has paid a legacy under the order of a Court, he is entitled to call upon the legatee to refund in the event of the assets proving insufficient to pay all the legacies.

 

Section 357. No refund if paid voluntarily

When an executor or administrator has voluntarily paid a legacy, he cannot call upon a legatee to refund in the event of the assets proving insufficient to pay all the legacies.

 

Section 358. Refund when legacy has become due on performance of condition within further time allowed under section 137

When the time prescribed by the will for the performance of a condition has elapsed, without the condition having been performed, and the executor or administrator has thereupon, without fraud, distributed the assets; in such case, if further time has been allowed under section 137 for the performance of the condition, and the condition has been performed accordingly, the legacy cannot be claimed from the executor or administrator, but those to whom he has paid it are liable to refund the amount.

 

Section 359. When each legatee compellable to refund in proportion

When the executor or administrator has paid away the assets in legacies, and he is afterwards obliged to discharge a debt of which he had no previous notice, he is entitled to call upon each legatee to refund in proportion.

 

Section 360. Distribution of assets

Where an executor or administrator has given such notices as the High Court may, by any general rule, prescribe or, if no such rule has been made, as the High Court would give in an administration-suit, for creditors and others to send in to him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets, or any part thereof, in discharge of such lawful claims as he knows of, and shall not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of such distribution:

Provided that nothing herein contained shall prejudice the right of any creditor or claimant to follow the assets, or any part thereof, in the hands of the persons who may have received the same respectively.

 

Section 361. Creditor may call upon legatee to refund

A creditor who has not received payment of his debt may call upon a legatee who has received payment of his legacy to refund, whether the assets of the testator’s estate were or were not sufficient at the time of his death to pay both debts and legacies; and whether the payment of the legacy by the executor or administrator was voluntary or not.

 

Section 362. When legatee, not satisfied or compelled to refund under section 361, cannot oblige one paid in full to refund

If the assets were sufficient to satisfy all the legacies at the time of the testator’s death, a legatee who has not received payment of his legacy, or who has been compelled to refund under section 361, cannot oblige one who has received payment in full to refund, whether the legacy were paid to him with or without suit, although the assets have subsequently become deficient by the wasting of the executor.

 

Section 363. When unsatisfied legatee must first proceed against executor, if solvent

If the assets were not sufficient to satisfy all the legacies at the time of the testator’s death, a legatee who has not received payment of his legacy must, before he can call on a satisfied legatee to refund, first proceed against the executor or administrator if he is solvent; but if the executor or administrator is insolvent or not liable to pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion.

 

Section 364. Limit to refunding of one legatee to another

The refunding of one legatee to another shall not exceed the sum by which the satisfied legacy ought to have been reduced if the estate had been properly administered.

Illustration

A has bequeathed 240 rupees to B, 480 rupees to C, and 720 rupees to D. The assets are only 1,200 rupees and, if properly administered, would give 200 rupees to B. 400 rupees to C and 600 rupees to D. C and D have been paid their legacies in full, leaving nothing to B. B can oblige C to refund 80 rupees, and D to refund 120 rupees.

 

Section 365. Refunding to be without interest

The refunding shall in all cases be without interest.

 

Section 366. Residue after usual payments to be paid to residuary legatee

The surplus or residue of the deceased’s property, after payment of debts and legacies, shall be paid to the residuary legatee when any has been appointed by the will.

 

Section 367. Transfer of assets from India to executor or administrator in country of domicile for distribution

Where a person not having his domicile in 1[India] has died leaving assets both in 1[India] and in the country in which he had his domicile at the time of his death, and there has been a grant of probate or letters of administration in 1[India] with respect to the assets there and a grant of administration in the country of domicile with respect to the assets in that country, the executor or administrator, as the case may be, in 1[India], after having given such notices as are mentioned in section 360, and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of, may, instead of himself distributing any surplus or residue of the deceased’s property to persons residing out of 1[India] who are entitled thereto, transfer, with the consent of the executor or administrator, as the case may be, in the country of domicile, the surplus or residue to him for distribution to those persons.

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1. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

 

Chapter XIII – Liability of an Executor or Administrator for Devastation

Section 368. Liability of executor or administrator for devastation

When an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned.

Illustrations

(i) The executor pays out of the estate an unfounded claim. He is liable to make good the loss.

(ii) The deceased had a valuable lease renewable by notice which the executor neglects to give at the proper time. The executor is liable to make good the loss.

(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss.

 

Section 369. Liability of executor or administrator for neglect to get any part of property

When an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount.

Illustrations

(i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount.

(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation and the debt is thereby lost to the estate. The executor is liable to make good the amount.

 

Part X – Succession Certificates

Section 370. Restriction on grant of certificates under this Part

(1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate:

Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.

(2) For the purposes of this Part, “security” means–

(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;

(b) any bond, debenture, or annuity charged by Act of Parliament 1[of the United Kingdom] on the revenues of India;

(c) any stock or debenture of, or share in, a company or other incorporated institution;

(d) any debenture or other security for money issued by, or on behalf of, a local authority;

(e) any other security which the 2[State Government] may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.

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1. Ins. by the A. O. 1950.

2. The words “G.-G.-in-C.” have been successively amended by the A. O. 1937 and the A. O. 1950 to read as above.

 

Section 371. Court having jurisdiction to grant certificate

The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.

 

Section 372. Application for certificate

(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:–

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased

within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code. (45 of 1860.)

1[(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.]

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1. Added by Act 14 of 1928, s. 2.

 

Section 373. Procedure on application

(1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing–

(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and

(b) to be posted on some conspicuous part of the court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.

 

Section 374. Contents of certificate

When the District Judge grants a certificate, he shall therein specify the debts and securities set forth in the application for the certificate, and may thereby empower the person to whom the certificate is granted–

(a) to receive interest or dividends on, or

(b) to negotiate or transfer, or

(c) both to receive interest or dividends on, and to negotiate or transfer, the securities or any of them.

 

Section 375. Requisition of security from grantee of certificate

(1) The District Judge shall in any case in which he proposes to proceed under sub-section (3) or sub-section (4) of section 373, and may, in any other case, require, as a condition precedent to the granting of a certificate, that the person to whom he proposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or other sufficient security, for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities.

(2) The Judge may, on application made by petition and on cause shown to his satisfaction, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as he thinks fit, assign the bond or other security to some proper person, and that person shall thereupon be entitled to sue thereon in his own name as if it had been originally given to him instead of to the Judge of the Court, and to recover, as trustee for all persons interested, such amount as may be recoverable thereunder.

 

Section 376. Extension of certificate

(1) A District Judge may, on the application of the holder of a certificate under this Part, extend the certificate to any debt or security not originally specified therein, and every such extension shall have the same effect as if the debt or security to which the certificate is extended had been originally specified therein.

(2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividends on, or the negotiation or transfer of, any security to which the certificate has been extended may be conferred, and a bond or further bond or other security for the purposes mentioned in section 375 may be required, in the same manner as upon the original grant of a certificate.

 

Section 377. Forms of certificate and extended certificate

Certificates shall be granted and extensions of certificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.

 

Section 378. Amendment of certificate in respect of powers as to securities

Where a District Judge has not conferred on the holder of a certificate any power with respect to a security specified in the certificate, or has only empowered him to receive interest or dividends on, or to negotiate or transfer, the security, the Judge may, on application made by petition and on cause shown to his satisfaction, amend the certificate by conferring any of the powers mentioned in section 374 or by substituting any one for any other of those powers.

 

Section 379. Mode of collecting Court-fees on certificates

(1) Every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870, (7 of 1870.) in respect of the certificate or extension applied for.

(2) If the application is allowed, the sum deposited by the applicant shall be expended, under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid.

(3) Any sum received under sub-section (1) and not expended under sub-section (2) shall be refunded to the person who deposited it.

 

Section 380. Local extent of certificate

A certificate under this Part shall have effect throughout 1[India] 2.

3[This section shall apply in 4[India] 5 after the separation of Burma and Aden from India to certificates granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.]

6[It shall also apply in 4[India] 7 8 after the separation of Pakistan from India to certificates granted before the date of the separation, or after that date in proceedings pending at that date in any of the territories which on that date constituted Pakistan.]

——————–

1. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

2. The words “of India” omitted by the A. O. 1950.

3. Ins. by the A. O. 1937.

4. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

5. 1st April, 1937.

6. Added by the A. O. 1948.

7. The words “of India” omitted by Act 48 of 1952, s. 3 and Sch. II.

8. 15th August, 1947.

 

Section 381. Effect of certificate

Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. Effect of certificate granted or extended by Indian representative in foreign State and in certain other cases.

 

Section 382. Effect of certificate granted or extended by Indian representative in foreign State and in certain other cases

1[Effect of certificate granted or extended by Indian representative in foreign State and in certain other cases. Where a certificate in the form, as nearly as circumstances admit, of Schedule VIII–

(a) has been granted to a resident within a foreign State by an Indian representative accredited to that State, or

(b) has been granted before the commencement of the Part B States (Laws) Act, 1951, (3 of 1951.) to a resident within any Part B State by a district judge of that State or has been extended by him in such form, or

(c) has been granted after the commencement of the Part B States (Laws) Act, 1951, to a resident within the State of Jammu and Kashmir by the district judge of that State or has been extended by him in such form, the certificate shall, when stamped in accordance with the provisions of the Court-fees Act, 1870, (7 of 1870.) with respect to certificates under this Part, have the same effect in India as a certificate granted or extended under this Part.]

——————–

1. Subs. by Act 34 of 1957, s. 2, for the former section.

 

Section 383. Revocation of certificate

A certificate granted under this Part may be revoked for any of the following causes, namely:–

(a) that the proceedings to obtain the certificate were defective in substance;

(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;

(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;

(d) that the certificate has become useless and inoperative through circumstances;

(e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked.

 

Section 384. Appeal

(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.

(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908. (5 of 1908).

(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (5 of 1908.) as applied by section 141 of that Code, an order of a District Judge under this Part shall be final.

 

Section 385. Effect on certificate of previous certificate, probate or letters of administration

Save as provided by this Act, a certificate granted thereunder in respect of any of the effects of a deceased person shall be invalid if there has been a previous grant of such a certificate or of probate or letters of administration in respect of the estate of the deceased person and if such previous grant is in force.

 

Section 386. Validation of certain payments made in good faith to holder of invalid certificate

Where a certificate under this Part has been superseded or is invalid by reason of the certificate having been revoked under section 383, or by reason of the grant of a certificate to a person named in an appellate order under section 384, or by reason of a certificate having been previously granted, or for any other cause, all payments made or dealings had, as regards debts and securities specified in the superseded or invalid certificate, to or with the holder of that certificate in ignorance of its supersession or invalidity, shall be held good against claims under any other certificate.

 

Section 387. Effect of decisions under this Act, and liability of holder of certificate thereunder

No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.

 

Section 388. Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act

(1) The State Government may by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.

(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:

Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.

(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (5 of 1908.) as applied by section 141 of that Code, be final.

(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.

(5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area.

(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge.

 

Section 389. Surrender of superseded and invalid certificates

(1) When a certificate under this Part has been superseded or is invalid from any of the causes mentioned in section 386, the holder thereof shall, on the requisition of the Court which granted it, deliver it up to that Court.

(2) If he wilfully and without reasonable cause omits so to deliver it up, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months or with both.

 

Section 390. Provisions with respect to certificates under Bombay Regulation 8 of 1827

Notwithstanding anything in Bombay Regulation No. VIII of 1827 the provisions of section 370, sub-section (2), section 372, sub-section (1), clause (f), and sections 374, 375, 376, 377, 378, 379, 381, 383, 384, 387, 388 and 389 with respect to certificates under this Part and applications therefor, and of section 317 with respect to the exhibition of inventories and accounts by executors and administrators, shall, so far as they can be made applicable, apply, respectively, to certificates granted under that Regulation and applications made for certificates thereunder, after the 1st day of May, 1889, and to the exhibition of inventories and accounts by the holders of such certificates so granted.

 

Section 391. Saving

Nothing in Part VIII, Part IX or Part X shall–

(i) validate any testamentary disposition which would otherwise have been invalid;

(ii) invalidate any such disposition which would otherwise have been valid;

(iii) deprive any person of any right of maintenance to which he would otherwise have been entitled; or

(iv) affect the Administrator General’s Act, 1913. (3 of 1913.)

 

Section 392. Repeals

[Repeals.] Rep. by the Repealing Act, 1927 (12 of 1927), s. 2 and Sch.

 

Schedule I.

SCHEDULE I

(See section 28.)

TABLE OF CONSANGUINITY

   Great

Grandfather’s

Father.  

 

   4

  Great

Grandfather.Great

Great Uncle.    35  Grandfather.  Great Uncle.    24  Father.Uncle.     Great Uncle’s

son.135   THE PERSON

WHOSE

RELATIVES

ARE TO BE

RECKONED.

Brother.

        Cousin-

 

german.        Second

Cousion.

2

             46    Son.         Son of the

 

Nephew.     Cousin-

german.13           5  Grandson.

Son of the

Nephew

       or

Brother’s

Grandson

Grandson of

 

the cousin-

german.      2   Great

Grandson.

 Schedule II.

1[SCHEDULE II

PART I

(See section 54)

(1) Father and mother.

(2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.

(3) Paternal and maternal grandparents.

(4) Children of paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.

(5) Paternal and maternal grandparents’ parents.

(6) Paternal and maternal grandparents’ parents’ children and the lineal descendants of such of them as have predeceased the intestate.

PART II

(See section 55)

(1) Father and mother.

(2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.

(3) Paternal and maternal grandparents.

(4) Children of paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.

(5) Paternal and maternal grandparents’ parents.

(6) Paternal and maternal grandparents’ children and the lineal descendants of such of them as have predeceased the intestate.

(7) Half brothers and sisters and the lineal descendants of such of them as have predeceased the intestate.

(8) Widows of brothers or half brothers and widowers of sisters or half sisters.

(9) Paternal or maternal grandparents’ children’s widows or widowers.

(10) Widows or widowers of deceased lineal descendants of the intestate who have not married again before the death of the intestate.]

——————–

 

1. Subs. by Act 51 of 1991, s. 7

Schedule III.

SCHEDULE III

(See section 57.)

PROVISIONS OF PART VI APPLICABLE TO CERTAIN WILLS AND CODICILS

DESCRIBED IN SECTION 57

Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77, 78,

79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 95, 96, 98, 101, 102,

103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116,

1[117,] 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130,

131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144,

145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158,

159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172,

173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186,

187, 188, 189 and 190.

Restrictions and modifications in application of foregoing sections.

1. Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of these sections, he could not deprive them by will.

2. Nothing therein contained shall authorise any Hindu, Buddhist, Sikh or Jaina, to create in property any interest which he could not have created before the first day of September, 1870.

3. Nothing therein contained shall affect any law of adoption or intestate succession.

4. In applying section 70 the words “than by marriage or” shall be omitted.

5. In applying any of the following sections, namely, sections seventy-five, seventy-six, one hundred and five, one hundred and nine, one hundred and eleven, one hundred and twelve, one hundred and thirteen, one hundred and fourteen, one hundred and fifteen, and one hundred and sixteen to such wills and codicils the words “son,” “sons,” “child,” and “children” shall be deemed to include an adopted child; and the word “grand-children” shall be deemed to include the children, whether adopted or natural-born, of a child whether adopted or natural-born; and the expression “daughter-in-law” shall be deemed to include the wife of an adopted son.

——————–

 

1. Ins. by Act 21 of 1929, s. 14.

Schedule IV.

SCHEDULE IV

[See section 274(2).]

FORM OF CERTIFICATE

I, A. B., Registrar (or as the case may be) of the High Court of Judicature at (or as the case may be) hereby certify that on the day of, the High Court of Judicature at (or as the case may be) granted probate of the will (or letters of administration of the estate) of C. D., late of, decreased, to E. F. of and G. H. of, and that such probate (or letters) has (or have) effect over all the property of the deceased throughout 1[India] 2.

——————–

 

1. Subs. by Act 3 of 1951, s. 3 and Sch., for “the States”.

2. The words “of India” omitted by the A. O. 1950.

Schedule V.

SCHEDULE V

[See section 284(4).]

FORM OF CAVEAT

Let nothing be done in the matter of the estate of A. B., late of , deceased, who died on the day of at, without notice to C. D. of

 

Schedule VI.

SCHEDULE VI

(See section 289.)

FORM OF PROBATE

I,

Judge of the District of

[or Delegate appointed for granting probate or letters of administration in (here insert the limits of the Delegate’s jurisdiction)], hereby make known that on the day of in the year, the last will of, late of, a copy whereof is hereunto annexed, was proved and registered before me, and that administration of the property and credits of the said deceased, and in any way concerning his will was granted to, the executor in the said will named, he having undertaken to administer the same, and to make a full and true inventory of the said property and credits and exhibit the same in this Court within six months from the date of this grant or within such further time as the Court may, from time to time, appoint, and also to render to this Court a true account of the said property and credits within one year from the same date, or within such further time as the Court may, from time to time, appoint.

 

Schedule VII.

SCHEDULE VII

(See section 290.)

FORM OF LETTERS OF ADMINISTRATION

I,

Judge of the District of

[or Delegate appointed for granting probate or letters of administration in (here insert the limits of the Delegate’s jurisdiction)], hereby make known that on the day of letters of administration (with or without the will annexed, as the case may be), of the property and credits of, late of, deceased, were granted to, the father (or as the case may be) of the deceased, he having undertaken to administer the same and to make a full and true inventory of the said property and credits and exhibit the same in this Court, within six months from the date of this grant or within such further time as the Court may, from time to time, appoint, and also to render to this Court a true account of the said property and credits within one year from the same date, or within such further time as the Court may, from time to time, appoint.

 

Schedule VIII.

SCHEDULE VIII

(See section 377.)

FORMS OF CERTIFICATE AND EXTENDED CERTIFICATE

In the Court of

To A. B.

Whereas you applied on the day of for a certificate under Part X of the Indian Succession Act, 1925, in respect of the following debts and securities, namely:–

Debts

Serial Number 1[Name] of debtor Amount of debt, including interest, on date of application for certificate Description and date of instrument, if any, by which the debt is secured

Securities

DESCRIPTION

Serial Number Distinguishing number or letter of Name, title or class of security Amount or par value of security Market-value of security on date of application for certificate

 This certificate is accordingly granted to you and empowers you to collect those debts [and] [to receive] [interest] [dividends] [on] [to negotiate] [to transfer] [those securities].

 Dated this              day of

 

District Judge.

 In the Court of

On the application of A. B. made to me on the day of , I hereby extend this certificate to the following debts and securities, namely:–

Debts

Serial Number Name of debtor Amount of debt, incuding interest, on date of application for certificate Description and date of instrument, if any, by which the debt is secured

 Securities

DESCRIPTION

Serial Number Distinguishing number or letter of Name, title or class of security Amount or par value of security Market-value of security on date of application for certificate

This extension empowers A. B. to collect those debts [and] [to receive] [interest] [dividends] [on] [to negotiate] [to transfer] [those securities].

Dated this              day of

 

District Judge.

SCHEDULE IX.–[Enactments Repealed.] Rep. by the Repealing Act,

1927 (12 of 1927), s. 2 and Sch.

——————–

1. Subs. by Act 48 of 1952, s. 3 and Sch. II, for “Number”.