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THE SUCCESSION ACT 1925
CONTENTS
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PART I
Preliminary
1. Short title
2. Definitions
3. Power of Provincial Government to exempt any race, sect or tribe in the Province from
operation of Act
PART II
Of Domicile.
4. Application of Part
5. Law regulating succession to deceased person’s immoveable and moveable property
respectively
6. One domicile only affects succession to moveables
7. Domicile of origin of person of legitimate birth
8. Domicile of origin of illegitimate child
9. Continuance of domicile of origin.
10. Acquisition of new domicile
11. Special mode of acquiring domicile in Pakistan
12. Domicile not acquired by residence as representative of foreign government, or as part of his
family
13. Continuance of new domicile
Page 1 of 133
14. Minor’s domicile
15. Domicile acquired by woman on marriage
16. Wife’s domicile during marriage
17. Minor’s acquisition of new domicile
18. Lunatic’s acquisition of new domicile
19. Succession to moveable property in Pakistan, in absence of proof of domicile elsewhere
PART III
Marriage
20. Interests and powers not acquired nor lost by marriage
21. Effect of marriage between person domiciled and one not domiciled in Pakistan.
22. Settlement of minor’s property in contemplation of marriage
PART IV
Of Consanguinity
23. Application of Part
24. Kindred or consanguinity
25. Lineal consanguinity
26. Collateral consanguinity
27. Persons held for purpose of succession to be similarly related to deceased
28. Mode of computing of degrees of kindred
PART V
Intestate succession
CHAPTER I
PRELIMINARY
29. Application of Part
30. As to what property deceased considered to have died intestate
31. Chapter not to apply to Parsis
CHAPTER II
RULES IN CASES OF INTESTATES OTHER THAN PARSIS
32. Devolution of such property
Page 2 of 133
33. Where intestate has left widow and lineal descendants, or widow and kindred only, or
widow and no kindred
33A. Special provision where intestate has left widow and no lineal descendants
34. Where intestate has left no widow, and where he has left no kindred
35. Rights of widower
36. Rules of distribution
37. Where intestate has left child or children only
38. Where intestate has left no child, but grandchild or grandchildren
39. Where intestate has left only great-grandchildren or remoter lineal descendants.
40. Where intestate leaves lineal descendants not all in same degree of kindred to him, and those
through whom the more remote are descended are dead
41. Rules of distribution where intestate has left no lineal descendants
42. Where intestate’s father living. If the intestate’s father is living, he shall succeed to the
property
43. Where intestate’s father dead but his mother, brothers and sisters living
44. Where intestate’s father dead and his mother, a brother or sister, and children of any deceased
brother or sister, living
45. Where intestate’s father is dead and his mother and children of any deceased brother or sister
living
46. Where intestate’s father is dead, but his mother living and no sister, brother, nephew or niece
47. Where intestate has left neither lineal descendant, nor father, nor mother
48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister
49. Children’s advancements not brought into hotchpot
CHAPTER III
SPECIAL RULES FOR PARSI INTESTATES
50. General principles relating to intestate succession
51. Division of a male intestate’s property among his widow, children and parents.
52. Division of a female intestate’s property among her widower and children
53. Division of share of predeceased child of intestate leaving lineal descendants
Page 3 of 133
54. Division of property where intestate leaves no lineal descendant but leaves a widow or
widower or a widow of any lineal descendant
55. Division of property where intestate leaves neither lineal descendants nor a widow or
widower nor a widow of any lineal descendant
56. Division of property where there is no relative entitled to succeed under the other provisions
of this Chapter
PART VI
Testamentary succession
CHAPTER I
INTRODUCTORY
57. Application of certain provisions
58. General application of Part
CHAPTER II.
WILLS AND CODICILS
59. Person capable of making wills
60. Testamentary guardian
61. Will obtained by fraud, coercion or importunity
62. Will may be revoked or altered
CHAPTER III
THE EXECUTION OF UNPRIVILEGED WILLS
63. Execution of unprivileged wills
64. Incorporation of papers by reference
CHAPTER IV
OF PRIVILEGED WILLS
65. Privileged wills
66. Mode of making, and rules for executing, privileged wills
CHAPTER V
OF THE ATTESTATION, REVOCATION, ALTERATION AND REVIVAL OF WILLS
67. Effect of gift to attesting witness
68. Witness not disqualified by interest or by being executor
Page 4 of 133
69. Revocation of will by testator’s marriage
70. Revocation of unprivileged will or codicil
71. Effect of obliteration, interlineation or alteration in unprivileged will
72. Revocation of privileged will or codicil.
73. Revival of unprivileged will
PART VI
Testamentary succession
CHAPTER VI
OF THE CONSTRUCTION OF WILLS
74. Wording of will
75. Inquiries to determine questions as to object or subject of will
76. Misnomer or misdescription of object
77. When words may be supplied
78. Rejection of erroneous particulars in description of subject
79. When part of description may not be rejected as erroneous
80. Extrinsic evidence admissible in cases of patent ambiguity
81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency
82. Meaning of clause to be collected from entire will
83. When words may be understood in restricted sense, and when in sense wider than usual.
84. Which of two possible constructions preferred
85. No part rejected, if can be it reasonably construed
86. Interpretation of words repeated in different parts of will
87. Testator’s intention to be effectuated, as far as, possible
88. The last of two inconsistent clauses prevails
89. Will or bequest void for uncertainty
90. Words describing subject refer to property answering description at testator’s death.
91. Power of appointment executed by general bequest
92. Implied gift to objects of power in default of appointment
Page 5 of 133
93. Bequest to “heirs”, etc., of particular person without qualifying terms
94. Bequest to “representatives”, etc., of particular person
95. Bequest without words of limitation
96. Bequest in alternative
97. Effect of words describing a class added to bequest to person
98. Bequest to class of persons under general description only
99. Construction of terms
100. Words expressing relationship denote only legitimate relatives or failing such relatives
reputed legitimate
101. Rules of construction where will purports to make two bequests to same person
102. Constitution of residuary legatee
103. Property to which residuary legatee entitled
104. Time of vesting legacy in general terms
105. In what case legacy lapses
106. Legacy does not lapse if one of two joint legatees die before testator
107. Effect of words showing testator’s intention to give distinct shares
108. When lapsed share goes as undisposed of
109. When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s
lifetime
110. Bequest to A for benefit of B does not lapse by A’s death
111. Survivorship in case of bequest to described class
CHAPTER VII
OF VOID BEQUETS
112. Bequest to person by particular description, who is not in existence at testator’s death
113. Bequest to person not in existence at testator’s death subject to prior bequest
114. Rule against perpetuity
115. Bequest to a class some of whom may come under rule in Section 113 and 114
116. Bequest to take effect on failure of prior bequest
Page 6 of 133
117. Effect of direction for accumulation
118. Bequest to religious or charitable uses
CHAPTER VIII
OF THE VESTING OF LEGACIES
119. Date of vesting of legacy when payment or possession postponed
120. Date of vesting when legacy contingent upon specified uncertain event
121. Vesting of interest in bequest to such members of a class as shall have attained particular age.
CHAPTER IX
OF ONEROUS BEQUESTS
122. Onerous bequests
123. One of two separate and independent bequests to same person may be accepted, and other
refused
CHAPTER X
OF CONTINGENT BEQUESTS
124. Bequest contingent upon specified uncertain event, no time being mentioned for its
occurrence
125. Bequest to such of certain persons as shall be surviving at some period not specified
CHAPTER XI
OF CONDITIONAL BEQUESTS
126. Bequest upon impossible condition
127. Bequest upon illegal or immoral condition
128. Fulfilment of condition precedent to vesting of legacy
129. Bequest to A and on failure of prior bequest to B
130. When second bequest not to take effect on failure of first
131. Bequest over conditional upon happening or not happening of specified uncertain event.
132. Condition must be strictly fulfilled
133. Original bequest not affected by invalidity of second
134. Bequest conditioned that it shall cease to have effect in case a specified uncertain event shall
happen, or not happen
135. Such condition must not be invalid under section 120
Page 7 of 133
136. Result of legatee rendering impossible or indefinitely postponing act for which no time
specified, and on non-performance of which subject matter to go over
137. Performance of condition, precedent or subsequent, within specified time. Further time in
case of fraud
CHAPTER XII
OF BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR ENJOYMENT.
138. Direction that fund be employed in particular manner following absolute bequest of same to
or for benefit of any person
139. Direction that mode of enjoyment of absolute bequest is to be restricted, to secure specified
benefit for legatee
CHAPTER XIII
OF BEQUESTS TO AN EXECUTOR
140. Bequest of fund for certain purposes, some of which cannot be fulfilled
141. Legatee named as executor cannot take unless he shows intention to act as executor
CHAPTER XIV
OF SPECIAL LEGACIES.
142. Specific legacy defined
143. Bequest of certain sum where stocks, etc., in which invested are described
144. Bequest of stock where testator had, at date of will, equal or greater amount of stock of same
kind
145. Bequest of money where not payable until part of testator’s property disposed of in certain
way
146. When enumerated articles not deemed specifically bequeathed
147. Retention, in form of specific bequest to several persons in succession
148. Sale and investment of proceeds of property bequeathed to two or more person in succession.
149. Where deficiency of assets to pay legacies, specific legacy not to abate with general legacies
CHAPTER XV
OF DEMONSTRATIVE LEGACIES
150. Demonstrative legacy defined
151. Order of payment when legacy directed to be paid out of fund the subject of specific legacy
CHAPTER XVI
OF ADEMPTION OF LEGACIES
Page 8 of 133
152. Ademption explained
153. Non- ademption of demonstrative legacy
154. Ademption of specific bequest of right to receive something from third party
155. Ademption pro tanto by testator’s receipt of part of entire thing specifically bequeathed
156. Ademption pro tento by testator’s receipt of portion of entire fund of which portion has been
specifically bequeathed
157. Order of payment where portion of fund specifically bequeathed to one legatee, and legacy
charged. on same fund to another, and, testator having received portion of that fund, remainder
insufficient to pay both legacies
158. Ademption where stock, specifically bequeathed, does not exist at testator’s death
159. Ademption pro tento where stock, specifically bequeathed, exists in part only at testator’s
death
160. Non-ademption of specific bequest of goods described as connected with certain place, by
reason of removal
161. When removal of thing bequeathed does not constitute ademption
162. When thing bequeathed is a valuable to be received by testator from third person; and testator
himself, or his representative, receives it
163. Change by operation of law of subject of specific bequest between date of will and testator’s
death
164. Change of subject without testator’s knowledge
165. Stock specifically bequeathed lent to third party on condition that it be replaced
166. Stock specifically bequeathed sold but replaced, and belonging to testator at his death
CHAPTER XVII
OF THE PAYMENT OF LIABILITIES IN THE RESPECT OF THE SUBJECT OF A
BEQUESTS
167. Non-liability of executor to exonerate specific legatees
168. Completion of testator’s title to things bequeathed to be at cost of his estate
169. Exoneration of legatee’s immoveable property for which land-revenue or rent payable
periodically
170. Exoneration of specific legatee’s stock in joint -stock company
Page 9 of 133
CHAPTER XIX
OF BEQUESTS OF THE INTEREST OF PRODUCE OF A FUND
171. Bequest of thing described in general terms
172. Bequest of interest or produce of fund
CHAPTER XX
OF BEQUESTS OF ANNUITIES
173. Annuity created by will payable for life only unless contrary intention appears by will
174. Period of vesting where will directs that annuity be provided out of proceeds of property, or
out of property generally, or where money bequeathed to be invested in purchase of
annuity
175. Abatement of annuity
176. Where gift of annuity and residuary gift, whole annuity to be first satisfied
CHAPTER XXI
OF LEGACIES TO CREDITORS AND PORTIONERS
177. Creditor prima facie entitled to legacy as well as debt
178. Child prima facie entitled to legacy as well as portion
179. No ademption by subsequent provision for legatee
CHAPTER XXII.
OF ELECTION
180. Circumstances in which election takes place
181. Devolution of interest relinquished by owner
182. Testator's belief as to his ownership immaterial
183. Bequest for man's benefit how regarded for purpose of election
184. Person deriving benefit indirectly not put to election
185. Person taking in individual capacity under will may in other character elect to take in
opposition. 186 Exception to provisions of last six sections
187. When acceptance of benefit given by will constitutes election to take under will
188. Circumstances in which knowledge or waiver is presumed or inferred. 189 When testator's
representatives may call upon legatee to elect
190. Postponement of election in case of disability
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CHAPTER XXIII
OF GIFTS IN CONTEMPLATION OF DEATH
191. Property transferable by gift made in contemplation of death
PART VII
Protection of property of deceased
192. Person claiming right by succession to property of deceased may apply for relief against
wrongful possession
193. Inquiry made by judge
194. Procedure
195. Appointment of curator pending determination of proceeding
196. Powers conferrable on curator
197. Prohibition of exercise of certain powers by curators
198. Curator to give security and may receive remuneration
199. Report from collector where estate includes revenue paying land
200. Institution and defence of suits
201. Allowances to apparent owners pending custody by curator
202. Accounts to be filed by curator
203. Inspection of accounts and right of interested party to keep duplicate
204. Bar to appointment of second curator for same property
205. Limitation of time for application for curator
206. Bar to enforcement of part against public settlement or legal directions by deceased
207. Court of wards to be made curator in case of minors having property subject to its jurisdiction
208. Saving of right to bring suit
209. Effect of decision of summary proceeding
210. Appointment of public curators
PART VIII.
Representative title to property of deceased on succession
211. Character and property of executor or administrator as such
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212. Right to intestate's property
213. Right as executor or legatee when established
214. Proof of representative title a condition precedent to recovery through the courts of debts
from debtors of deceased persons
215. Effect on certificate of subsequent probate or letters of administration
216. Grantee of probate or administration alone to sue, etc, until same revoked
PART IX.
Probate, letters of administration and administration of assets of deceased
217. Application of part
CHAPTER I.
Grant of probate and letters of administration
218. To whom administration may be granted, where deceased is a hindu, [muslim], buddhist,
sikh, jaina or exempted any person
219. Where deceased is not a hindu, [muslim], buddhist, sikh, jaina or exempted person 220
Effect of letters of administration
221. Acts not validated by administration
222. Probate only to appointed executor
223. Persons to whom probate cannot be granted
224. Grant of probate to several executors simultaneously or at different times
225. Separate probate of codicil discovered after grant of probate
226. Accrual of representation to surviving executor227 Effect of probate
228. Administration, with copy annexed, of authenticated copy of will proved abroad
229. Grant of administration where executor has not renounced
230. Form and effect of renunciation of executorship
231. Procedure where executor renounces or fails to accept within time limited
232. Grant of administration to universal or residuary legatees
233. Right to administration of representative of deceased residuary legatee
234. Grant of administration where no executor, nor residuary legatee nor representative of such
legatee
235. Citation before grant of administration to legatee other than universal or residuary
Page 12 of 133
236. To whom administration may not be granted
CHAPTER II.
Limited grants
237. Probate of copy or draft of lost will
238. Probate of contents of lost or destroyed will
239. Probate of copy where original exists
240. Administration until will produced
241. Administration, with will annexed, to attorney of absent executor
242. Administration, with will annexed, to attorney of absent person who, if present, would be
entitled to administer
243. Administration to attorney of absent person entitled to administer in case of intestacy
244. Administration during minority of sole executor or residuary legatee
245. Administration during minority of several executors or residuary legatees
246. Administration for use and benefit of lunatic or minor
247. Administration pendente lite 248 Probate limited to purpose specified in will
249. Administration, with will annexed, limited to particular purpose
250. Administration limited to property in which person has beneficial interest
251. Administration limited to suit
252. Administration limited to purpose of becoming party to suit to be brought against
administrator 253 Administration limited to collection and preservation of deceased's
property
254. Appointment as administrator, of person other than one who, in ordinary circumstances,
would be entitled to administration
255. Probate or administration, with will annexed, subject to exception
256. Administration with exception
257. Probate or administration of rest
258. Grant of effects unadministered
259. Rules as to grants of effects unadministered
260. Administration when limited grant expired and still some part of estate unadministered
Page 13 of 133
CHAPTER III.
Alteration and revocation of grants
261. What errors may be rectified by court
262. Procedure where codicil discovered after grant of administration with will annexed
263. Revocation or annulment for just cause
CHAPTER IV
Of the practice in granting and revoking probates and letters of administration
264. Jurisdiction of district judge in granting and revoking probates, etc
265. Power to appoint delegate of district judge to deal with noncontentious cases
266. District judge's powers as to grant of probate and administration
267. District judge may order person to produce testamentary papers
268. Proceedings of district judge's court in relation to probate and administration
269. When and how district judge to interfere for protection of property
270. When probate or administration may be granted by district judge
271. Disposal of application made to judge of district in which deceased had no fixed abode
272. Probate and letters of administration may be granted by delegate
273. Conclusiveness of probate or letters of administration
274. Transmission to high courts of certificate of grants under proviso to section 273
275. Conclusiveness of application for probate or administration if properly made and verified
276. Petition for probate
277. In what cases translation of will to be annexed to petition verification of translation by person
other than court translator
278. Petition for letters of administration
279. Addition to statement in petition, etc, for probate or letters of administration in certain cases
280. Petition for probate, etc, to be signed and verified
281. Verification of petition for probate, by one witness to will
282. Punishment for false averment in petition or declaration
283. Powers of district judge
Page 14 of 133
284. Caveats against grant of probate or administration
285. After entry of caveat, no proceeding taken on petition until after notice to caveator
286. District delegate when not to grant probate or administration
287. Power to transmit statement to district judge in doubtful cases where no contention
288. Procedure where there is contention, or district delegate thinks probate or letters of
administration should be refused in his court
289. Grant of probate to be under seal of court
290. Grant of letters of administration to be under seal of court
291. Administration bond
292. Assignment of administration bond
293. Time for grant of probate and administration
294. Filing of original wills of which probate or administration with will annexed granted
295. Procedure in contentious cases
296. Surrender of revoked probate or letters of administration
297. Payment to executor or administrator before probate or administration revoked
298. Power to refuse letters of administration
299. Appeals from orders of district judge
300. Concurrent jurisdiction of high court
301. Removal of executor or administrator and provision for successor
302. Directions to executor or administrator
CHAPTER V.
Executors of their own wrong
303. Executor of his own wrong
304. Liability of executor of his own wrong
CHAPTER VI.
Powers of an executor or administrator
305. In respect of causes of action surviving deceased and debts due at death
Page 15 of 133
306. Demands and rights of action of or against deceased survive to and against executor or
administrator
307. Power of executor or administrator to dispose of property
308. General powers of administration
309. Commission or agency charges
310. Purchase by executor or administrator of deceased's property
311. Powers of several executors or administrators exercisable by one
312. Survival of powers on death of one of several executors or administrators
313. Powers of administrator of effects unadministered
314. Powers of administrator during minority
315. Powers of married executrix or administratrix
CHAPTER VII.
Duty of an executor or administrator
316. As to deceased's funeral
317. Inventory and account
318. Inventory to include property in any part of pakistan in certain cases
319. As to property of and debts owing to, deceased
320. Expenses to be paid before all debts
321. Expenses to be paid next after such expenses
322. Wages for certain services to be next paid and then other debts
323. Save as aforesaid, all debts to be paid equally and rateably
324. Application of moveable property to payment of debts where domicile not in india
325. Debts to be paid before legacies
326. Executor or administrator not bound to pay legacies without indemnity
327. Abatement of general legacies
328. Non abatement of specific legacy when assets sufficient to pay debts
329. Right under demonstrative legacy when assets sufficient to pay debts and necessary expenses
330. Rateable abatement of specific legacies
Page 16 of 133
331. Legacies treated as general for purpose of abatement
CHAPTER VIII.
Assent to a legacy by executor or administrator
332. Assent necessary to complete legatee's title
333. Effect of executor's assent to specific legacy
334. Conditional assent
335. Assent of executor to his own legacy
336. Effect of executor's assent
337. Executor when to deliver legacies
CHAPTER IX.
Payment and apportionment of annuities
338. Commencement of annuity when no time fixed by will
339. When annuity, to be paid quarterly or monthly, first falls due
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
CHAPTER X.
Investment of funds to provide for legacies
341. Investment of sum bequeathed where legacy, not specific, given for life
342. Investment of general legacy, to be paid at future time: disposal of intermediate interest
343. Procedure when no fund charged with, or appropriated to, annuity
344. Transfer to residuary legatee of contingent bequest
345. Investment of residue bequeathed for life without direction to invest in particular securities
346. Investment of residue bequeathed for life, with direction to invest in specified securities
347. Time and manner of conversion and investment
348. Procedure where minor entitled to immediate payment or possession of bequest, and no
direction to pay to person on his behalf
CHAPTER XI.
Produce and interest of legacies
349. Legatee's title to produce of specific legacy
Page 17 of 133
350. Residuary legatee's title to produce of residuary fund
351. Interest when no time fixed for payment of general legacy
352. Interest when time fixed 353 Rate of interest
354. No interest on arrears of annuity within first year after testator's death
355. Interest on sum to be invested to produce annuity
CHAPTER XII.
Refunding of legacies
356. Refund of legacy paid under court's orders
357. No refund if paid voluntarily
358. Refund when legacy has become due on performance of condition within further time
allowed under section 137
359. When each legatee compellable to refund in proportion
360. Distribution of assets
361. Creditor may call upon legatee to refund
362. When legatee, not satisfied or compelled to refund under section 361, cannot oblige one paid
in full to refund
363. When unsatisfied legatee must first proceed against executor, if solvent
364. Limit to refunding of one legatee to another
365. Refunding to be without interest
366. Residue after usual payments to be paid to residuary legatee
367. Transfer of assets from Pakistan to executor or administrator in country of domicile for
distribution
CHAPTER XIII.
Liability of an executor or administrator for devastation
368. Liability of executor or administrator for devastation
369. Liability of executor or administrator for neglect to get any part of property
PART X.
Succession certificates
370. Restriction on grant of certificates under this part
Page 18 of 133
371. Court having jurisdiction to grant certificate
372. Application for certificate
373. Procedure on application
374. Contents of certificate
375. Requisition of security from grantee of certificate
376. Extension of certificate
377. Forms of certificate and extended certificate
378. Amendment of certificate in respect of powers as to securities
379. Mode of collecting courtfees on certificates
380. Local extent of certificate
381. Effect of certificate
382. Effect of certificate granted or extended by pakistan representative in foreign state
383. Revocation of certificate
384. Appeal
385. Effect on certificate of previous certificate, probate or letters of administration
386. Validation of certain payments made in good faith to holder of invalid certificate
387. Effect of decisions under this act, and liability of holder of certificate thereunder
388. Investiture of inferior courts with jurisdiction of district court for purposes of this act
389. Surrender of superseded and invalid certificates
390. Provisions with respect to certificates under bombay regulation viii of 1827
PART XI.
Miscellaneous
391. Saving
392. Repeal
Page 19 of 133
SCHEDULE I.
Table of consanguinity
SCHEDULE II.
See section 54
SCHEDULE III.
Provisions of part vi applicable to certain wills and codicils described in section 57
SCHEDULE IV.
Form of certificate
SCHEDULE V.
Form of caveat
SCHEDULE VI.
Form of probate
SCHEDULE VII.
Form of letters of administration
SCHEDULE VIII.
Forms of certificate and extended certificate
SCHEDULE IX.
Enactments repealed
Page 20 of 133
THE SUCCESSION ACT 1925
1
ACT No. XXXIX OF 1925
[30th September, 1925]
An Act to consolidate the law applicable to intestate and testamentary succession in 2[Pakistan].
WHEREAS it is expedient to consolidate the law applicable to intestate and testamentary
succession in 2[Pakistan] it is hereby enacted as follows :―
PART I
Preliminary
1. Short title. This Act may be called the 3[* ] Succession Act, 1925.
2. Definitions. In this Act, unless there is anything repugnant in the subject or context,―
(a) “administrator” means a person appointed by competent authority to
administer the estate of a deceased person when there is no executor;
(b) “codicil” means an instrument made in relation to a will, and explaining,
altering or adding to its dispositions, and shall be deemed to form part of the
will;
4
[(bb) “District Judge” means the Judge of a principal Civil Court of original
jurisdiction;]
(c) “executor” means a person to whom the execution of the last will of a
deceased person is, by the testator’s appointment, confided;
1
For Statement of Objects and Reasons, see Gaz. of India, 1923, Pt. V, p.401 ; and for Report of Joint Committee, see ibid., 1925, Pt. V, p. 103.
The Act has been extended under the Scheduled Districts Act, 1874 (14 of 1874), to Baluchistan, see Gaz. of India, 1925, Pt. II-A, p. 358 ; and applied
to Phulera in the Excluded Area of Upper Tanawal to the extent the Act is applicable in the (N.W.F.P.; and also extended to the Excluded Area of
Upper Tanawal (N.W.F.P.) other than Phulera with effect from such date and subject to such modifications as may be notified, see N-W-.F.P. (Upper
Tanawal) (Excluded Area) Laws Regulation, 1950.
It has been extended to the Leased Areas of Baluchistan, see the Leased Areas (Laws) Order, 1950 (G.G.O. 3 of 1950): and also applied in the
Federated Areas of Baluchistan, see Gazette of India, 1937, Pt. I. p.1499.
It has been extended to the Baluchistan States Union by the Baluchistan States Union (Federal Laws) (Extension) Order, 1953 (G.G.O. 4 of 1953), as
amended.
It has been extended to the Khairpur State by the Khairpur (Federal Laws) (Extension) Order 1953 (G.G.O. 5 of 1953), as amended.
The Act has been extended and shall be deemed to have been so extended on the 14 th October, 1955, to the whole of Pakistan by the Central Laws
(Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch.
The Act has been and shall be deemed to have been brought into force in Gwadur with effect from the 8 th September 1958 by the Gwadur (Application
of Central Laws) Ordinance, 1960 (37 of 1960), s. 2.
This Act has further been amended in its application to the Province of Baluchistan by Baluchistan Ord. 1 of 1979.
2
Subs. by Ordinance 21 of 1960, s. 3 and 2nd Sch. (with effect from the 14th October of 1955), for “the Provinces and the Capital of the Federation”
which had been subs. by A.O., 1949, for “British India”.
3
The word “Indian” omitted by A.O., 1949.
4
Clause (bb) ins. by the Indian Succession (Amdt.) Act, 1929 (18 of 1929), s. 2.
Page 21 of 133
(d) 1
[“Pakistan Christian” means a 2[citizen of] Pakistan] who is, or in good faith
claims to be, of unmixed Asiatic descent and who professes any form of the
Christian religion ;
(e) “minor” means any person subject to the Majority Act, 1875 (IX of 1875),
who has not attained his majority within the meaning of that Act, and any
other person who has not completed the age of eighteen years; and “minority”
means the status of any such person;
(f) “probate” means the copy of a will certified under the seal of a Court of
competent jurisdiction with a grant of administration to the estate of the
testator;
(g) “Province” includes any division of 3[Pakistan] having a Court of the last
resort; and
(h) “will” means the legal declaration of the intention of a testator with respect to
his property which he desires to be carried into effect after his death.
3. Power of Provincial Government to exempt any race, sect or tribe in the Province
from operation of Act.___(1) The 4[Provincial Government] may, by notification in the 5[Official
Gazette], either retrospectively from the sixteenth day of March, 1865 , or prospectively, exempt
from the operation of any of the following provisions of this Act, namely, sections 5 to 49, 58 to 191,
212, 213 and 215 to 369, the members of any race, sect or tribe in the Province, or of any part of
such race, sect or tribe, to whom the 4[Provincial Government] considers it impossible or inexpedient
to apply such provisions or any of them mentioned in the order.
(2) The 4[Provincial Government] may, by a like notification, revoke any such order, but not
so that the revocation shall have retrospective effect.
(3) Persons exempted under this section or exempted from the operation of any of the
provisions of the Indian Succession Act, 18656 (X of 1865), under section 332 of that Act are in this
Act referred to as “exempted persons”.
PART II
Of Domicile
4. Application of Part. This Part shall not apply if the deceased was a Hindu, 7[Muslim],
Buddhist, Sikh or Jaina.
5. Law regulating succession to deceased person’s immoveable and moveable property
respectively.___(1) Succession to the immoveable property in 3[Pakistan] of a person deceased shall
be regulated by the law of 3[Pakistan], wherever such person may have had his domicile at the time
of his death.
1
Subs. by A. O., 1949, for “Indian Christian,” means a native of India’.
2
Subs. by A.O., 1961, Art. 2 and Sch. For “British subject domiciled in”, (with effect from the 23rd March, 1956).
3
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. A.O., 1949, for “British India.”
4
Subs. by A.O., 1937, for “L.G.”
5
Subs. ibid., for “local official Gazette”.
6
Rep. by this Act.
7
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
Page 22 of 133
(2) Succession to the moveable property of a person deceased is regulated by the law of the
country in which such person had his domicile at the time of his death.
Illustrations
(i) A, having his domicile in 1[Pakistan] dies in France, leaving moveable
property in France, moveable property in England, and property, both
moveable and immoveable, in 1[Pakistan]. The succession to the whole is
regulated by the law of 1[Pakistan].
(ii) A, an Englishman, having his domicile in France, dies in 1[Pakistan], and
leaves property, both moveable and immoveable, in 1[Pakistan.] The
succession to the moveable property is regulated by the rules which govern, in
France, the succession to the moveable property of an Englishman dying
domiciled in France, and the succession to the immoveable property is
regulated by the law of 1[Pakistan].
6. One domicile only affects succession to moveables. A person can have only one domicile
for the purpose of the succession to his moveable property.
7. Domicile of origin of person of legitimate birth. The domicile of origin of every person
of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he
is a posthumous child, in the country in which his father was domiciled at the time of the father’s
death.
Illustration
At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in
England, whatever may be the country in which he was born.
8. Domicile of origin of illegitimate child. The domicile of origin of an illegitimate child is
in the country in which, at the time of his birth, his mother was domiciled.
9. Continuance of domicile of origin. The domicile of origin prevails until a new domicile
has been acquired.
10. Acquisition of new domicile. A man acquires a new domicile by taking up his fixed
habitation in a country which is not that of his domicile of origin.
Explanation.― A man is not to be deemed to have taken up his fixed habitation in 1[Pakistan]
merely by reason of his residing therein 2[the civil, military, naval or air force service of Pakistan] or
in the exercise of any profession or calling.
Illustrations
(i) A, whose domicile of origin is in England, proceeds to 1[Pakistan], where he
settles as a barrister or a merchant, intending to reside there during the
remainder of his life. His domicile is now in 1[Pakistan].
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. A.O., 1949, for “British India.”
2
The original words “His Majesty’s civil, or military service” have successively been amended by the Repealing and Amending Act, 1927 (10 of 1927),
the Amending Act, 1934 (35 of 1934) and A.O. 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), to read as above.
Page 23 of 133
(ii) A, whose domicile is in England, goes to Austria, and enters the Austrian
service, intending to remain in that service. A has acquired a domicile in
Austria.
(iii) A, whose domicile of origin is in France, comes to reside in 1[Pakistan] under
an engagement with the 2[Federal Government] for a certain number of years.
It is his intention to return to France at the end of that period. He does not
acquire a domicile in 1[Pakistan].
(iv) A, whose domicile is in England, goes to reside in 1[Pakistan] for the purpose
of winding up the affairs of a partnership which has been dissolved, and with
the intention of returning to England as soon as that purpose is accomplished.
He does not by such residence acquire a domicile in 1[Pakistan], however long
the residence may last.
(v) A, having gone to reside in 1[Pakistan] in the circumstances mentioned in the
last preceding illustration, afterwards alters his intention, and takes up his
fixed habitation in 1[Pakistan]. A has acquired a domicile in 1[Pakistan].
(vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled
by political events to take refuge in 3[Peshawar], and resides in 3[Peshawar]
for many years in the hope of such political changes as may enable him to
return with safety to Chandernagore. He does not by such residence acquire a
domicile in 1[Pakistan].
A, having come to 3[Peshawar] in the circumstances stated in the last
(vii)
preceding illustration, continues to reside there after such political changes
have occurred as would enable him to return with safety to Chandernagore,
and he intends that his residence in 3[Peshawar] shall be permanent. A has
acquired a domicile in 1[Pakistan].
11. Special mode of acquiring domicile in Pakistan. Any person may acquire a domicile in
1
[Pakistan], by making and depositing in some office in 1[Pakistan], appointed in this behalf by the
4
[Provincial Government], a declaration in writing under his hand of his desire to acquire such
domicile; provided that he has been resident in 1[Pakistan] for one year immediately preceding the
time of his making such declaration.
12. Domicile not acquired by residence as representative of foreign government, or as
part of his family. A person who is appointed by the Government of one country to be its
ambassador, consul or other representative in another country does not acquire a domicile in the
latter country by reason only of residing there in pursuance of his appointment; nor does any other
person acquire such domicile by reason only of residing with such first-mentioned person as part of
his family, or as a servant.
13. Continuance of new domicile. A new domicile continues until the former domicile has
been resumed or another has been acquired.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Provinces
and the Capital of the Federation” which had been subs. by A. O., 1949, for “British India”.
2
Subs. by F.A.O., 1975, Art.2 and Table, for “Central Government” which was previously amended by A. O., 1937, for “G. of I.”.
3
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch. II, for “Dacca”, which was previously amended by
Act 26 of 1951, s. 4 and 3rd Sch., for “Calcutta”.
4
Subs. by A. O., 1937, for “L.G.
Page 24 of 133
14. Minor’s domicile. The domicile of a minor follows the domicile of the parent from
whom he derived his domicile of origin.
Exception.___ The domicile of a minor does not change with that of his parent, if the minor is
married, or holds any office or employment in the service of 1[the state], or has set up, with the
consent of the parent, in any distinct business.
15. Domicile acquired by woman on marriage. By marriage a woman acquires the
domicile of her husband, if she had not the same domicile before.
16. Wife’s domicile during marriage. A wife’s domicile during her marriage follows the
domicile of her husband.
Exception.__ The wife’s domicile no longer follows that of her husband if they are separated
by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation.
17. Minor’s acquisition of new domicile. Save as hereinbefore otherwise provided in this
Part, a person cannot, during minority, acquire a new domicile.
18. Lunatic’s acquisition of new domicile. An insane person cannot acquire a new domicile
in any other way than by his domicile following the domicile of another person.
19. Succession to moveable property in Pakistan, in absence of proof of domicile
elsewhere. If a person dies leaving moveable property in 2[Pakistan], in the absence of proof of any
domicile elsewhere, succession to the property is regulated by the law of 2[Pakistan].
________
PART III
Marriage
20. Interests and powers not acquired nor lost by marriage.―(1) No person shall, by
marriage, acquire any interest in the property of the person whom he or she marries or become
incapable of doing any act in respect of his or her own property which he or she could have done if
unmarried.
(2) This section―
(a) shall not apply to any marriage contracted before the first day of January,
1866;
(b) shall not apply, and shall be deemed never to have applied, to any marriage
one or both of the parties to which professed at the time of the marriage the
Hindu, 3[Muslim], Buddhist, Sikh or Jaina religion.
1
Subs. by A.O., 1961, Art. 2 and Sch., for “His Majesty” (with effect from the 23rd March, 1956).
2
Subs. by the Central Laws (Statute Reform) (Ordinance, 1960) (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. A. O., 1949, for “British India”.
3
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
Page 25 of 133
21. Effect of marriage between person domiciled and one not domiciled in Pakistan. If a
person whose domicile is in 1[Pakistan] marries in 1[Pakistan] a person whose domicile is not in
1
[Pakistan], neither party acquires by the marriage any rights in respect of any property of the other
party not comprised in a settlement made previous to the marriage, which he or she would not
acquire thereby if both were domiciled in 1[Pakistan] at the time of the marriage.
22. Settlement of minor’s property in contemplation of marriage.―(1) The property of a
minor may be settled in contemplation of marriage, provided the settlement is made by the minor
with the approbation of the minor’s father, or, if the father is dead or absent from 1[Pakistan], with
the approbation of the High Court.
(2) Nothing in this section or in section 21 shall apply to any will made or intestacy occurring
before the first day of January, 1866, or to intestate or testamentary succession to the property of any
Hindu, 2[Muslim], Buddhist, Sikh or Jaina.
_____
PART IV
Of Consanguinity
23. Application of Part. Nothing in this Part shall apply to any will made or intestacy
occurring before the first day of January, 1866 , or to intestate or testamentary succession to the
property of any Hindu, 2[Muslim], Buddhist, Sikh, Jaina or Parsi.
24. Kindred or consanguinity. Kindred or consanguinity is the connection or relation of
persons descended from the same stock or common ancestor.
25. Lineal consanguinity.―(1) Lineal consanguinity is that which subsists between two
persons, one of whom is descended in a direct line from the other, as between a man and his father,
grandfather and great-grandfather, and so upwards in the direct ascending line ; or between a man
and his son, grandson, great-grandson and so downwards in the direct descending line.
(2) Every generation constitutes a degree, either ascending or descending.
(3) A person’s father is related to him in the first degree, and so likewise is his son; his
grandfather and grandson in the second degree; his great-grandfather and great- grandson in the third
degree, and so on.
26. Collateral consanguinity.___(1) Collateral consanguinity is that which subsists between
two persons who are descended from the same stock or ancestor, but neither of whom is descended
in a direct line from the other.
(2) For the purpose of ascertaining in what degree of kindred any collateral relative stands to
a person deceased, it is necessary to reckon upwards from the person deceased to the common stock
and then downwards to the collateral relative, a degree being allowed for each person, both
ascending and descending.
27. Persons held for purpose of succession to be similarly related to deceased. For the
purpose of succession, there is no distinction―
1
Subs. by the Central Laws (Statute Reform) (Ordinance, 1960) (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. A. O., 1949, for “British India”.
2
Sub. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
Page 26 of 133
(a) between those who are related to a person deceased through his father, and
those who are related to him through his mother; or
(b) between those who are related to a person deceased by the full blood, and
those who are related to him by the half blood; or
(c) between those who were actually born in the lifetime of a person deceased and
those who at the date of his death were only conceived in the womb, but who
have been subsequently born alive.
28. Mode of computing of degrees of kindred. Degrees of kindred are computed in the
manner set forth in the table of kindred set out in Schedule I.
Illustrations
(i) The person whose relatives are to be reckoned, and his cousingerman, or first
cousin, are, as shown in the table, related in the fourth degree; there being one
degree of ascent to the father and another to the common ancestor, the
grandfather; and from him one of descent to the uncle, and another to the
cousin- german, making in all four degrees.
(ii) A grandson of the brother and a son of the uncle, i.e., a greatnephew and a
cousin- german, are in equal degree being each four degrees removed.
(iii) A grandson of a cousin- german is in the same degree as the grandson of a
great- uncle, for they are both in the sixth degree of kindred.
____
PART V
Intestate Succession
CHAPTER I
PRELIMINARY
29. Application of Part.___(1) This Part shall not apply to any intestacy occurring before the
first day of January, 1866, or to the property of any Hindu, 1[Muslim], Buddhist, Sikh or Jaina.
(2) Save as provided in sub-section (1) or by any other law for the time being in force, the
provisions of this Part shall constitute the law of 2[Pakistan] in all cases of intestacy.
30. As to what property deceased considered to have died intestate. A person is deemed
to die intestate in respect of all property of which he has not made a testamentary disposition which
is capable of taking effect.
Illustrations
(i) A has left no will. He has died intestate in respect of the whole of his property.
(ii) A has left a will, whereby he has appointed B his executor; but the will
contains no other provisions. A has died intestate in respect of the distribution
of his property.
(iii) A has bequeathed his whole property for an illegal purpose. A has died
intestate in respect of the distribution of his property.
1
Sub. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
2
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”.
Page 27 of 133
(iv) A has bequeathed 1, 000 rupees to B and 1, 000 rupees to the eldest son of C,
and has made no other bequest; and has died leaving the sum of 2, 000 rupees
and no other property. C died before A without having ever had a son. A has
died intestate in respect of the distribution of 1,000 rupees.
_____
CHAPTER II
RULES IN CASE OF INTESTATES OTHER THAN PARSIS
31. Chapter not to apply to Parsis. Nothing in this Chapter shall apply to Parsis.
32. Devolution of such property. The property of an intestate devolves upon the wife or
husband, or upon those who are of the kindred of the deceased, in the order and according to the
rules hereinafter contained in this Chapter.
Explanation.―A widow is not entitled to the provision hereby made for her if, by a valid
contract made before her marriage, she has been excluded from her distributive share of her
husband’s estate.
33. Where intestate has left widow and lineal descendants, or widow and kindred only,
or widow and no kindred. Where the intestate has left a widow__
(a) if he has also left any lineal descendants, one-third of his property shall belong
to his widow, and the remaining two- thirds shall go to his lineal descendants,
according to the rules hereinafter contained;
1
(b) [save as provided by section 33A,] if he has left no lineal descendant, but has
left persons who are of kindred to him, one- half of his property shall belong
to his widow, and the other half shall go to those who are kindred to him, in
the order and according to the rules hereinafter contained;
(c) if he has left none who are of kindred to him, the whole of his property shall
belong to his widow.
2[33A. Special provision where intestate has left widow and no lineal descendants.―(1)
Where the intestate has left a widow but no lineal descendants and the nett value of his property does
not exceed five thousand rupees, the whole of his property shall belong to the widow.
(2) Where the nett value of the property exceeds the sum of five thousand rupees, the widow
shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such
property for such sum of five thousand rupees, with interest thereon from the date of the death of the
intestate at 4 per cent per annum until payment.
(3) The provision for the widow made by this section shall be in addition and without
prejudice to her interest and share in the residue of the estate of such intestate remaining after
payment of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be
distributed in accordance with the provisions of section 33 as if it were the whole of such intestate’ s
property.
1
Ins. by the Indian Succession (Amdt.) Act,1926, (40 of 1926), s. 2.
2
S. 33A ins. by the Indian Succession (Amdt.) Act, 1926 (40 of 1926), s. 3.
Page 28 of 133
(4) The nett value of the property shall be ascertained by deducting from the gross value
thereof all debts, and all funeral and administration expenses of the intestate, and all other lawful
liabilities and charges to which the property shall be subject.
(5) This section shall not apply___
(a) to the property of―
(i) any 1[Pakistan Christian],
(ii) any child or grandchild of any male person who is or was at the
time of his death 2[a] 1[Pakistan Christian], or
(iii) any person professing the Hindu, Buddhist, Sikh or Jaina
religion the succession to whose property is, under section 24
of the Special Marriage Act, 1872 (III of 1872), regulated by
the provisions of this Act;
(b) unless the deceased dies intestate in respect of all his property.]
34. Where intestate has left no widow, and where he has left no kindred. Where the
intestate has left no widow, his property shall go to his lineal descendants or to those who are of
kindred to him, not being lineal descendants, according to the rules hereinafter contained ; and, if he
has left none who are of kindred to him, it shall go to the 3[Government].
35. Rights of widower. A husband surviving his wife has the same rights in respect of her
property, if she dies intestate, as a widow has in respect of her husband’ s property, if he dies
intestate.
Distribution where there are lineal descendants
36. Rules of distribution. The rules for the distribution of the intestate’s property (after
deducting the widow’s share, if he has left a widow) amongst his lineal descendants shall be those
contained in sections 37 to 40.
37. Where intestate has left child or children only. Where the intestate has left surviving
him a child or children, but no more remote lineal descendant through a deceased child, the property
shall belong to his surviving child, if there is only one, or shall be equally divided among all his
surviving children.
38. Where intestate has left no child, but grandchild or grandchildren. Where the
intestate has not left surviving him any child, but has left a grandchild or grandchildren and no more
remote descendant through a deceased grandchild, the property shall belong to his surviving
grandchild if there is only one, or shall be equally divided among all his surviving grandchildren.
1
Subs. by A. O., 1949, for “Indian Christian”.
2
Subs. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s. 4 and 3rd Sch., for “an”
3
Subs. by A. O., 1961, Art. 2, for “Crown” (with effect from the 23rd March, 1956).
Page 29 of 133
Illustrations
(i) A has three children, and no more, John, Mary and Henry. They all die before
the father, John leaving two children, Mary three and Henry four. Afterwards
A dies intestate, leaving those nine grandchildren and no descendant of any
deceased grandchild. Each of his grandchildren will have one- ninth.
(ii) But if Henry has died, leaving no child, then the whole is equally divided
between the intestate’s five grandchildren, the children of John and Mary.
39. Where intestate has left only great-grandchildren or remoter lineal descendants. In
like manner the property shall go to the surviving lineal descendants who are nearest in degree to the
intestate, where they are all in the degree of great- grandchildren to him, or are all in a more remote
degree.
40. Where intestate leaves lineal descendants not all in same degree of kindred to him, and
those through whom the more remote are descended are dead.___(1) If the intestate has left lineal
descendants who do not all stand in the same degree of kindred to him, and the persons through whom
the more remote are descended from him are dead, the property shall be divided into such a number of
equal shares as may correspond with the number of the lineal descendants of the intestate who either
stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of
kindred to him, died before him, leaving lineal descendants who survived him.
(2) One of such shares shall be allotted to each of the lineal descendants who stood in the
nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in
respect of each of such deceased lineal descendants; and the share allotted in respect of each of such
deceased lineal descendants shall belong to his surviving child or children or more remote lineal
descendants, as the case may be; such surviving child or children or more remote lineal descendants
always taking the share which his or their parent or parents would have been entitled to respectively
if such parent or parents had survived the intestate.
Illustrations
(i) A had three children, John, Mary and Henry; John died, leaving four children,
and Mary died, leaving one, and Henry alone survived the father. On the death
of A, intestate, one-third is allotted to Henry, one-third to John’s four children,
and the remaining third to Mary’s one child.
(ii) A left no child, but left eight grandchildren, and two children of a deceased
grandchild. The property is divided into nine parts, one of which is allotted to
each grandchild, and the remaining one-ninth is equally divided between the
two great- grandchildren.
(iii) A has three children, John, Mary and Henry ; John dies leaving four children;
and one of John’s children dies leaving two children. Mary dies leaving one
child. A afterwards dies intestate. One-third of his property is allotted to
Henry, one-third to Mary’s child, and one-third is divided into four parts, one
of which is allotted to each of John’s three surviving children, and the
remaining part is equally divided between John’s two grandchildren.
(iv) A has two children, and no more, John and Mary. John dies before his father,
leaving his wife pregnant. Then A dies leaving Mary surviving him, and in
due time a child of John is born. A’s property is to be equally divided between
Mary and the posthumous child.
Page 30 of 133
Distribution where there are no lineal descendants
41. Rules of distribution where intestate has left no lineal descendants. Where an intestate
has left no lineal descendants, the rules for the distribution of his property (after deducting the
widow’s share, if he has left a widow) shall be those contained in sections 42 to 48.
42. Where intestate’s father living. If the intestate’s father is living, he shall succeed to the
property.
43. Where intestate’s father dead but his mother, brothers and sisters living. If the
intestate’s father is dead, but the intestate’s mother is living and there are also brothers or sisters of
the intestate living, and there is no child living of any deceased brother or sister, the mother and each
living brother or sister shall succeed to the property in equal shares.
Illustration
A dies intestate, survived by his mother and two brothers of the full blood, John and Henry,
and a sister Mary, who is the daughter of his mother but not of his father. The mother takes one-
fourth, each brother takes one-fourth and Mary, the sister of half blood, takes one-fourth.
44. Where intestate’s father dead and his mother, a brother or sister, and children of
any deceased brother or sister, living. If the intestate’s father is dead, but the intestate’s mother is
living, and if any brother or sister and the child or children of any brother or sister who may have
died in the intestate’s lifetime are also living then the mother and each living brother or sister, and
the living child or children of each deceased brother or sister, shall be entitled to the property in
equal shares, such children (if more than one) taking in equal shares only the shares which their
respective parents would have taken if living at the intestate’s death.
Illustration
A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a
deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the
son of his father but not of his mother. The mother takes one-fifth, John and Henry each takes one-
fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth
equally between them.
45. Where intestate’s father is dead and his mother and children of any deceased
brother or sister living. If the intestate’s father is dead, but the intestate’s mother is living, and the
brothers and sisters are all dead, but all or any of them have left children who survived the intestate,
the mother and the child or children of each deceased brother or sister shall be entitled to the
property in equal shares, such children (if more than one) taking in equal shares only the shares
which their respective parents would have taken if living at the intestate’s death.
Illustration
A, the intestate, leaves no brother or sister, but leaves his mother and one child of a deceased
sister, Mary, and two children of a deceased brother, George. The mother takes one- third, the child
of Mary takes one-third, and the children of George divide the remaining one-third equally between
them.
Page 31 of 133
46. Where intestate’s father is dead, but his mother living and no sister, brother,
nephew or niece. If the intestate’s father is dead, but the intestate’s mother is living, and there is
neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong
to the mother.
47. Where intestate has left neither lineal descendant, nor father, nor mother.
Where the intestate has left neither lineal descendant, nor father, nor mother, the property shall
be divided equally between his brothers and sisters and the child or children of such of them as
may have died before him, such children (if more than one) taking in equal shares only the shares
which their respective parents would have taken if living at the intestate’s death.
48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor
sister. Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his
property shall be divided equally among those of his relatives who are in the nearest degree of
kindred to him.
Illustrations
(i) A, the intestate, has left a grandfather, and a grandmother and no other relative
standing in the same or a nearer degree of kindred to him: They, being in the
second degree, will be entitled to the property in equal shares exclusive of any
uncle or aunt of the intestate, uncles and aunts being only in the third degree.
(ii) A, the intestate, has left a great-grandfather, or a great-grandmother, and
uncles and aunts, and no other relative standing in the same or a nearer degree
of kindred to him. All of these being in the third degree will take equal shares.
(iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no
relative standing in a nearer degree of kindred to him. All of these being in the
third degree will take equal shares.
(iv) Ten children of one brother or sister of the intestate, and one child of another
brother or sister of the intestate, constitute the class of relatives of the nearest
degree of kindred to him. They will each take one- eleventh of the property.
49. Children’s advancements not brought into hotchpot. Where a distributive share in the
property of a person who has died intestate is claimed by a child, or any descendant of a child, of
such person, no money or other property which the intestate may, during his life, have paid, given or
settled to, or for the advancement of, the child by whom or by whose descendant the claim is made
shall be taken into account in estimating such distributive share.
_____
Page 32 of 133
CHAPTER III
SPECIAL RULES FOR PARSI INTESTATES
1[50.
General principles relating to intestate succession. For the purpose of intestate
succession among Parsis―
(a) there is no distinction between those who were actually born in the lifetime of
a person deceased and those who at the date of his death were only conceived
in the womb, but who have been subsequently born alive;
(b) a lineal descendant of an intestate who has died in the lifetime of the intestate
without leaving a widow or widower or any lineal descendant or a widow of
any lineal descendent shall not be taken into account in determining the
manner in which the property of which the intestate has died intestate shall be
divided; and
(c) where a widow of any relative of an intestate has married again in the lifetime
of the intestate, she shall not be entitled to receive any share of the property of
which the intestate has died intestate, and she shall be deemed not to be
existing at the intestate’s death.
51. Division of a male intestate’s property among his widow, children and parents.___(1)
Subject to the provisions of sub-section (2), the property of which a male Parsi dies intestate shall be
divided―
(a) where he dies leaving a widow and children, among the widow and children,
so that the share of each son and of the widow shall be double the share of
each daughter, or
(b) where he dies leaving children but no widow, among the children, so that the
share of each son shall be double the share of each daughter.
(2) Where a male Parsi dies leaving one or both parents in addition to children or a widow
and children, the property of which he dies intestate shall be divided so that the father shall receive a
share equal to half the share of a son and the mother shall receive a share equal to half the share of a
daughter.
52. Division of a female intestate’s property among her widower and children. The
property of which a female Parsi dies intestate shall be divided____
(a) where she dies leaving a widower and children among the widower and
children so that the widower and each child receive equal shares, or
(b) where she dies leaving children but no widower, among the children in equal
shares.
53. Division of share of predeceased child of intestate leaving lineal descendants. In all
cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the
lifetime of the intestate, the division of the share of the property of which the intestate has died
intestate which such child would have taken if living at the intestate’s death shall be in accordance
with the following rules, namely:―
1
Subs. by the Indian Succession (Amdt.) Act, 1939 (17 of 1939), s. 2, for sections 50 to 56 (both inclusive).
Page 33 of 133
(a) If such deceased child was a son his widow and children shall take shares in
accordance with the provisions of this Chapter as if he had died immediately
after the intestate’s death:
Provided that where such deceased son has left a widow or a widow of
a lineal descendant but no lineal descendant, the residue of his share after such
distribution has been made shall be divided in accordance with the provisions
of this Chapter as property of which the intestate has died intestate, and in
making the division of such residue the said deceased son of the intestate shall
not be taken into account.
(b) If such deceased child was a daughter, her share shall be divided equally
among her children.
(c) If any child of such deceased child has also died during the lifetime of the
intestate, the share which he or she would have taken if living at the intestate’s
death shall be divided in like manner in accordance with clause (a) or clause
(b) as the case may be.
(d) Where a remoter lineal descendant of the intestate has died during the lifetime
of the intestate, the provisions of clause (c) shall apply mutatis mutandis to the
division of any share to which he or she would have been entitled if living at
the intestate’s death by reason of the pre deceased of all the intestate’s lineal
descendants directly between him or her and the intestate.
54. Division of property where intestate leaves no lineal descendant but leaves a widow
or widower or a widow of any lineal descendant. Where a Parsi dies without leaving any lineal
descendant but leaving a widow or widower or a widow of a lineal descendant, the property of which
the intestate dies intestate shall be divided in accordance with the following rules, namely:―
(a) If the intestate leaves a widow or widower but no widow of a lineal
descendant, the widow or widower shall take half the said property.
(b) If the intestate leaves a widow or widower and also a widow of any lineal
descendant, his widow or her widower shall receive one-third of the said
property, and the widow of any lineal descendant shall receive another one-
third, or if there is more than one such widow, the last mentioned one-third
shall be divided equally among them.
(c) If the intestate leaves no widow or widower but one widow of a lineal
descendant, she shall receive one-third of the said property or, if the intestate
leaves no widow or widower but more than one widow of a lineal descendant,
two-thirds of the said property shall be divided among such widows in equal
shares.
(d) The residue after the division specified in clause (a), (b) or (c) has been made
shall be distributed among the relatives of the intestate in the order specified in
Part I of Schedule II. The next-of-kin standing first in Part I of that Schedule
shall be preferred to those standing second, the second to the third, and so on
in succession, provided that the property shall be so distributed that each male
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shall take double the shore of each female standing in the same degree of
propinquity.
(e) If there are no relatives entitled to the residue under clause (d), the whole of
the residue shall be distributed in proportion to the share specified among the
persons entitled to receive shares under this section.
55. Division of property where intestate leaves neither lineal descendants nor a widow
or widower nor a widow of any lineal descendant. When a Parsi dies leaving neither lineal
descendants nor a widow or widower nor a widow of any lineal descendant, his or her next-of-kin, in
the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of
which he or she dies intestate. The next- of- kin standing first in Part II of that Schedule shall be
preferred to those standing second, the second to the third, and so on in succession, provided that the
property shall be so distributed that each male shall take double the share of each female standing in
the same degree of propinquity.
56. Division of property where there is no relative entitled to succeed under the other
provisions of this Chapter. Where there is no relative entitled to succeed under the other provisions
of this Chapter to the property of which a Parsi has died intestate, the said property shall be divided
equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.]
____
PART VI
Testamentary Succession
CHAPTER I
INTRODUCTORY
157. Application of certain provisions. The provisions of this Part which are set out in
Schedule III shall, subject to the restrictions and modifications specified therein, apply—
2
[* * * * * * *]
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or
after the first day of January, 1927 , to which those provisions are not applied
by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.
58. General application of Part.___(1) The provisions of this Part shall not apply to
testamentary succession to the property of any 3[Muslim] nor, save as provided by section 57, to
testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina ; nor shall they apply
to any will made before the first day of January, 1866 .
(2) Save as provided in sub-section (1) or by any other law for the time being in force, the
provisions of this Part shall constitute the law of 4[Pakistan] applicable to all cases of testamentary
succession.
1
The original s. 57 was re-numbered as sub-section (1) of that section, and a new sub-section (2) added by the Indian Succession (Amdt.) Act, 1926 (37
of 1926), s. (2) but subsequently sub-section (2) was omtted, and sub-section (1) was re-numbered as section 57, by the Indian Succession (Amdt.) Act,
1929 (18 of 1929), s. 3.
2
Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch., II.
3
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”
4
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October 1955), for “the Provinces
and the Capital of the Federation” which had been subs. A.O., 1949, for “British India”.
Page 35 of 133
CHAPTER II
OF WILLS AND CONDICILS
59. Person capable of making wills. Every person of sound mind not being a minor may
dispose of his property by will.
Explanation 1.― A married woman may dispose by will of any property which she could
alienate by her own act during her life.
Explanation 2.___Persons who are deaf or dumb or blind are not thereby incapacitated for
making a will if they are able to know what they do by it.
Explanation. 3.___ A person who is ordinarily insane may make a will during interval in
which he is of sound mind.
Explanation 4.___ No person can make a will while he is in such a state of mind, whether
arising from intoxication or from illness or from any other cause, that he does not know what he is
doing.
Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can
answer familiar questions, but has not a competent understanding as to the
nature of his property, or the persons who are of kindred to him, or in whose
favour it would be proper that he should make his will. A cannot make a valid
will.
(ii) A executes an instrument purporting to be his will, but he does not understand
the nature of the instrument, nor the effect of its provisions. This instrument is
not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgment as
to the proper mode of disposing of his property, makes a will. This is a valid
will.
60. Testamentary guardian. A father, whatever his age may be, may by will appoint a
guardian or guardians for his child during minority.
61. Will obtained by fraud, coercion or importunity. A will or any part of a will, the
making of which has been caused by fraud or coercion, or by such importunity as takes away the free
agency of the testator, is void.
Illustrations
(i) A falsely and knowingly represents to the testator that the testator’s only child
is dead, or that he has done some undutiful act and thereby induces the testator
to make a will in his, A’s, favour; such will has been obtained by fraud, and is
invalid.
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to
him. The bequest is void.
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(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid
by reason of the imprisonment.
(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a
criminal charge, unless he makes a bequest in favour of C. B, in consequence,
makes a bequest in favour of C. The bequest is void, the making of it having
been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to
make a will yet being so much under the control of B that he is not a free
agent, makes a will, dictated by B. It appears that he would not have executed
the will but for fear of B. The will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity, is
pressed by B to make a will of a certain purport and does so merely to
purchase peace and in submission to B. The will is invalid.
(vii) A being in such a state of health as to be capable of exercising his own
judgment and volition, B uses urgent intercession and persuasion with him
to induce him to make a will of a certain purport. A, in consequence of the
intercession and persuasion, but in the free exercise of his judgment and
volition makes his will in the manner recommended by B. The will is not
rendered invalid by the intercession and persuasion of B.
(viii) A, with a view to obtaining a legacy from B, pays him attention and flatters
him and thereby produces in him a capricious partiality to A. B, in
consequence of such attention and flattery, makes his will, by which he leaves
a legacy to A. The bequest is not rendered invalid by the attention and flattery
of A.
62. Will may be revoked or altered. A will is liable to be revoked or altered by the maker of
it at any time when he is competent to dispose of his property by will.
____
CHAPTER III
OF THE EXECUTION OF UNPRIVILEGED WILLS
63. Execution of unprivileged wills. Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea,
shall execute his will according to the following rules:___
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed
by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for
him, shall be so placed that it shall appear that it was intended thereby to give
effect to the writing as a will.
1
Ins. by the Repealing and Amending Act, 1927 (10 of 1927), s. 2 and 1 st Sch.
Page 37 of 133
(c) The will shall be attested by two or more witnesses, each of whom has seen
the testator sign or affix his mark to the will or has seen some other person
sign the will, in the presence and by the direction of the testator, or has
received from the testator a personal acknowledgment of his signature or
mark, or of the signature of such other person ; and each of the witnesses shall
sign the will in the presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no particular form of
attestation shall be necessary.
64. Incorporation of papers by reference. If a testator, in a will or codicil duly attested,
refers to any other document then actually written as expressing any part of his intentions, such
document shall be deemed to form a part of the will or codicil in which it is referred to.
_____
CHAPTER IV
OF PRIVILEGED WILLS
65. Privileged wills. Any soldier being employed in an expedition or engaged in actual
warfare, 1[or an airman so employed or engaged,] or any mariner being at sea, may, if he has
completed the age of eighteen years, dispose of his property by a will made in the manner provided
in section 66. Such wills are called privileged wills.
Illustrations
(i) A, a medical officer attached to a regiment, is actually employed in an
expedition. He is a soldier actually employed in an expedition, and can make a
privileged will.
(ii) A is at sea in a merchant- ship, of which he is the purser. He is a mariner, and,
being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in
actual warfare, and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while
she is lying in harbour. He is, for the purposes of this section, a mariner at sea,
and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only
occasionally goes on board his ship, is not considered as at sea, and cannot
make a privileged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is
considered as a soldier, and can make a privileged will.
66. Mode of making, and rules for executing, privileged wills.― (1) Privileged wills may
be in writing, or may be made by word of mouth.
1
Ins. by the Repealing and Amending Act, 1927 (10 of 1927), s. 2 and 1 st Sch.
Page 38 of 133
(2) The execution of privileged wills shall be governed by the following rules:―
(a) The will may be written wholly by the testator, with his own hand. In such
case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the
testator. In such case it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another
person and is not signed by the testator, it shall be deemed to be his will, if it is
shown that it was written by the testator’s directions or that he recognised it as
his will.
(d) If it appears on the face of the instrument that the execution of it in the manner
intended by the testator was not completed, the instrument shall not, by reason of
that circumstance, be invalid, provided that his non-execution of it can be
reasonably ascribed to some cause other than the abandonment of the
testamentary intentions expressed in the instrument.
(e) If the soldier, 1[airman] or mariner has written instructions for the preparation
of his will, but has died before it could be prepared and executed, such
instructions shall be considered to constitute his will.
(f) If the soldier, 1[airman] or mariner has, in the presence of two witnesses, given
verbal instructions for the preparation of his will, and they have been reduced
into writing in his lifetime, but he has died before the instrument could be
prepared and executed, such instructions shall be considered to constitute his
will, although they may not have been reduced into writing in his presence,
nor read over to him.
(g) The soldier, 1[airman] or mariner may make a will by word of mouth by
declaring his intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month
after the testator, being still alive, has ceased to be entitled to make a
privileged will.
____
CHAPTER V
OF THE ATTESTATION, REVOCATION, ALTERATION AND REVIVAL OF WILLS.
67. Effect of gift to attesting witness. A will shall not be deemed to be insufficiently attested
by reason of any benefit thereby given either by way of bequest or by way of appointment to any
person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so
far as concerns the person so attesting, or the wife or husband of such person, or any person claiming
under either of them.
1
Ins. by the Repealing and Amending Act, 1927 (10 of 1927), s. 2 and 1 st Sch.
Page 39 of 133
Explanation.___ A legatee under a will does not lose his legacy by attesting a codicil which
confirms the will.
68. Witness not disqualified by interest or by being executor. No person, by reason of
interest in, or of his being an executor of, a will, shall be disqualified as a witness to prove the
execution of the will or to prove the validity or invalidity thereof.
69. Revocation of will by testator’s marriage. Every will shall be revoked by the marriage
of the maker, except a will made in exercise of a power of appointment, when the property over
which the power of appointment is exercised would not, in default of such appointment, pass to his
or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.___ Where a man is invested with power to determine the disposition of property
of which he is not the owner, he is said to have power to appoint such property.
70. Revocation of unprivileged will or codicil. No unprivileged will or codicil, nor any part
thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some
writing declaring an intention to revoke the same and executed in the manner in which an
unprivileged will is hereinbefore required to be executed, or by the burning, tearing or otherwise
destroying the same by the testator or by some person in his presence and by his direction with the
intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged
will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a
privileged will, makes a privileged will, which purports to revoke his
unprivileged will. This is a revocation.
71. Effect of obliteration, interlineation or alteration in unprivileged will. No
obliteration, interlineation or other alteration made in any unprivileged will after the execution
thereof shall have any effect, except so far as the words or meaning of the will have been thereby
rendered illegible or undiscernible, unless such alteration has been executed in like manner as
hereinbefore is required for the execution of the will:
Provided that the will, as so altered, shall be deemed to be duly executed if the signature of
the testator and the subscription of the witnesses is made in the margin or on some other part of the
will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum
referring to such alteration, and written at the end or some other part of the will.
72. Revocation of privileged will or codicil. A privileged will or codicil may be revoked by
the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and
accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the
burning, tearing or otherwise destroying the same by the testator, or by some person in his presence
and by his direction, with the intention of revoking the same.
Explanation.―In order to the revocation of a privileged will or codicil by an act
accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not
Page 40 of 133
necessary that the testator should at the time of doing that act be in a situation which entitles him to
make a privileged will.
73. Revival of unprivileged will.―(1) No unprivileged will or codicil, nor any part thereof,
which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof,
or by a codicil executed in manner hereinbefore required, and showing an intention to revive the
same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked,
is revived, such revival shall not extend to so much thereof as has been revoked before the revocation
of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
____
CHAPTER VI
OF THE CONSTRUCTION OF WILLS
74. Wording of will. It is not necessary that any technical words or terms of art be used in a
will, but only that the wording be such that the intentions of the testator can be known therefrom.
75. Inquiries to determine questions as to object or subject of will. For the purpose of
determining questions as to what person or what property is denoted by any words used in a will, a
Court shall inquire into every material fact relating to the persons who claim to be interested under
such will, the property which is claimed as the subject of disposition, the circumstances of the
testator and of his family, and into every fact a knowledge of which may conduce to the right
application of the words which the testator has used.
Illustrations
(i) A, by his will, bequeaths 1, 000 rupees to his eldest son or to his youngest
grandchild, or to his cousin, Mary. A Court may make inquiry in order to
ascertain to what person the description in the will applies.
(ii) A, by his will, leaves to B “my estate called Black Acre”. It may be necessary
to take evidence in order to ascertain what is the subject-matter of the bequest;
that is to say, what estate of the testator’s is called Black Acre.
(iii) A, by his will, leaves to B “the estate which I purchased of C”. It may be
necessary to take evidence in order to ascertain what estate the testator
purchased of C.
76. Misnomer or misdescription of object.―(1) Where the words used in a will to
designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the
name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a
mistake in the description of a legatee may be corrected by the name.
Page 41 of 133
Illustrations
(i) A bequeaths a legacy to “Thomas, the second son of my brother John”. The
testator has an only brother named John, who has no son named Thomas, but
has a second son whose name is William. William will have the legacy.
(ii) A bequeaths a legacy “to Thomas, the second son of my brother John”. The
testator has an only brother, named John, whose first son is named Thomas
and whose second son is named William. Thomas will have the legacy.
(iii) The testator bequeaths his property “to A and B, the legitimate children of C”.
C has no legitimate child, but has two illegitimate children, A and B. The
bequest to A and B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among “my seven
children” and, proceeding to enumerate them, mentions six names only. This
omission will not prevent the seventh child from taking a share with the
others.
(v) The testator, having six grandchildren, makes a bequest to “my six
grandchildren” and, proceeding to mention them by their Christian names,
mentions one twice over omitting another altogether. The one whose name is
not mentioned will take a share with the others.
(vi) The testator bequeaths “1, 000 rupees to each of the three children of A”. At
the date of the will A has four children. Each of these four children will, if he
survives the testator, receive a legacy of 1, 000 rupees.
77. When words may be supplied. Where any word material to the full expression of the
meaning has been omitted, it may be supplied by the context.
Illustration
The testator gives a legacy of “five hundred” to his daughter A and a legacy of “five hundred
rupees” to his daughter B. A will take a legacy of five hundred rupees.
78. Rejection of erroneous particulars in description of subject. If the thing which the
testator intended to bequeath can be sufficiently identified from the description of it given in the will
but some parts of the description do not apply, such parts of the description shall be rejected as
erroneous, and the bequest shall take effect.
Illustrations
(i) A bequeaths to B “my marsh-lands lying in L and in the occupation of X”. The
testator had marsh-lands lying in L but had no marsh-lands in the occupation
of X. The words “in the occupation of X” shall be rejected as erroneous, and
the marsh-lands of the testator lying in L will pass by the bequest.
(ii) The testator bequeaths to A “my zamindari of Rampur”. He had an estate at
Rampur but it was a taluq and not a zamindari. The taluq passes by this
bequest.
Page 42 of 133
79. When part of description may not be rejected as erroneous. If a will mentions several
circumstances as descriptive of the thing which the testator intends to bequeath, and there is any
property of his in respect of which all those circumstances exist, the bequest shall be considered as
limited to such property and it shall not be lawful to reject any part of the description as erroneous,
because the testator had other property to which such part of the description does not apply.
Explanation.___ In judging whether a case falls within the meaning of this section, any words
which would be liable to rejection under section 78 shall be deemed to have been struck out of the
will.
Illustrations
(i) A bequeaths to B “my marsh-lands lying in L and in the occupation of X”. The
testator had marsh- lands lying in L, some of which were in the occupation of
X, and some not in the occupation of X. The bequest will be considered as
limited to such of the testator’s marsh-lands lying in L as were in the
occupation of X.
(ii) A bequeaths to B “my marsh-lands lying in L and in the occupation of X,
comprising 1, 000 bighas of lands”. The testator had marsh-lands lying in L
some of which were in the occupation of X and some not in the occupation of
X. The measurement is wholly inapplicable to the marsh-lands of either class,
or to the whole taken together. The measurement will be considered as struck
out of the will, and such of the testator’s marsh-lands lying in L as were in the
occupation of X shall alone pass by the bequest.
80. Extrinsic evidence admissible in cases of patent ambiguity. Where the words of a will
are unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of
which can have been intended by the testator, extrinsic evidence may be taken to show which of
these applications was intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths a sum of
money to “my cousin Mary”. It appears that there are two persons,
each answering the description in the will. That description, therefore,
admits of two applications, only one of which can have been intended
by the testator. Evidence is admissible to show which of the two
applications was intended.
(ii) A, by his will, leaves to B “my estate called Sultanpur Khurd”. It turns
out that he had two estates called Sultanpur Khurd. Evidence is
admissible to show which estate was intended.
81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency. Where
there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of
the testator shall be admitted.
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Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name
of Mary. By his will he bequeaths 1, 000 rupees to “my aunt, Caroline” and 1,
000 rupees to “my cousin, Mary” and afterwards bequeaths 2, 000 rupees to
“my before-mentioned aunt, Mary”. There is no person to whom the
description given in the will can apply, and evidence is not admissible to show
who was meant by “my before-mentioned aunt, Mary”. The bequest is
therefore void for uncertainty under section 89.
(ii) A bequeaths 1,000 rupees to leaving a blank for the name of the
legatee. Evidence is not admissible to show what name the testator intended to
insert.
(iii) A bequeaths to B rupees, or “my estate of”. Evidence is not
admissible to show what sum or what estate the testator intended to insert.
82. Meaning of clause to be collected from entire will. The meaning of any clause in a will
is to be collected from the entire instrument, and all its parts are to be construed with reference to
each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a
subsequent clause gives the whole of his property to A. The effect of the
several clauses taken together is to vest the specific fund or property in A for
life, and after his decease in B; it appearing from the bequest to B that the
testator meant to use in a restricted sense the words in which he describes what
he gives to A.
(ii) Where a testator having an estate, one part of which is called Black Acre,
bequeaths the whole of his estate to A, and in another part of his will
bequeaths Black Acre to B, the latter bequest is to be read as an exception out
of the first as if he had said “I give Black Acre to B, and all the rest of my
estate to A”.
83. When words may be understood in restricted sense, and when in sense wider than
usual. General words may be understood in a restricted sense where it may be collected from the will
that the testator meant to use them in a restricted sense; and words may be understood in a wider
sense than that which they usually bear, where it may be collected from the other words of the will
that the testator meant to use them in such wider sense.
Illustrations
(i) A testator gives to A “my farm in the occupation of B”, and to C “all my
marsh-lands in L”. Part of the farm in the occupation of B consists of marsh-
lands in L, and the testator also has other marsh-lands in L. Thegeneral words,
“all my marsh-lands in L,” are restricted by the gift to A. A takes the whole of
the farm in the occupation of B, including that portion of the farm which
consists of marsh- lands in L.
(ii) The testator (a sailor on ship- board) bequeathed to his mother his gold ring,
buttons and chest of clothes, and to his friend, A (a shipmate), his red box,
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clasp-knife and all things not before bequeathed. The testator’s share in a
house does not pass to A under this bequest.
(iii) A, by his will, bequeathed to B all his household furniture, plate, linen, china,
books, pictures and all other goods of whatever kind; and afterwards
bequeathed to B a specified part of his property. Under the first bequest, B is
entitled only to such articles of the testator’s as are of the same nature with the
articles therein enumerated.
84. Which of two possible constructions preferred. Where a clause is susceptible of two
meanings according to one of which it has some effect, and according to the other of which it can
have none, the former shall be preferred.
85. No part rejected, if can be it reasonably construed. No part of a will shall be rejected
as destitute of meaning if it is possible to put a reasonable construction upon it.
86. Interpretation of words repeated in different parts of will. If the same words occur in
different parts of the same will, they shall be taken to have been used everywhere in the same sense,
unless a contrary intention appears.
87. Testator’s intention to be effectuated, as far as, possible. The intention of the testator
shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as
far as possible.
Illustration
The testator by a will made on his death-bed bequeathed all his property to C D for life and
after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent,
because the gift to the hospital is void under section 118, but it will take effect so far as regards the
gift to C D.
88. The last of two inconsistent clauses prevails. Where two clauses of gifts in a will are
irreconcileable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of 1[Gujrat] “to A”,
and by the last clause of his will leaves it “to B and not to A”. B will have it.
(ii) If a man, at the commencement of his will gives his house to A, and at the
close of it directs that his house shall be sold and the proceeds invested for the
benefit of B, the latter disposition will prevail.
89. Will or bequest void for uncertainty. A will or bequest not expressive of any definite
intention is void for uncertainty.
1
Subs. by the Federal Laws (Revision and Declaration), Ordinance, 1981 (27 of 1981), s. 3, and Sch., II, for “Rangpur”. Which was previously
amended by Ord. 21 of 1960, s. 3 and 2nd Sch., for “Ramnagar” (w.e.f. 14th October, 1955).
Page 45 of 133
Illustration
If a testator says “I bequeath goods to A”, or “I bequeath to A”, or “I leave to A all the goods
mentioned in the Schedule” and no Schedule is found, or “I bequeath ‘money’, ‘wheat’, ‘oil’,” or the
like, without saying how much, this is void.
90. Words describing subject refer to property answering description at testator’s
death. The description contained in a will of property, the subject of gift, shall, unless a contrary
intention appears by the will, be deemed to refer to and comprise the property answering that
description at the death of the testator.
91. Power of appointment executed by general bequest. Unless a contrary intention
appears by the will, a bequest of the estate of the testator shall be construed to include any property
which he may have power to appoint by will to any object he may think proper, and shall operate as
an execution of such power; and a bequest of property described in a general manner shall be
construed to include any property to which such description may extend, which he may have power
to appoint by will to any object he may think proper, and shall operate as an execution of such
power.
92. Implied gift to objects of power in default of appointment. Where property is
bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit
of certain objects in such proportions as a specified person may appoint, and the will does not
provide for the event of no appointment being made; if the power given by the will is not exercised,
the property belongs to all the objects of the power in equal shares.
Illustration
A, by his will, bequeaths a fund to his wife, for her life, and directs that at her death it shall
be divided among his children in such proportions as she shall appoint. The widow dies without
having made any appointment. The fund will be divided equally among the children.
93. Bequest to “heirs”, etc., of particular person without qualifying terms. Where a
bequest is made to the “heirs” or “right heirs” or “relations” or “nearest relations” or “family” or
“kindred” or “nearest of kin” or “next-of-kin” of a particular person without any qualifying terms,
and the class so designated forms the direct and independent object of the bequest, the property
bequeathed shall be distributed as if it had belonged to such person and he had died intestate in
respect of it, leaving assets for the payment of his debts independently of such property.
Illustrations
(i) A leaves his property “to my own nearest relations”. The property goes to
those who would be entitled to it if A had died intestate, leaving assets for the
payment of his debts independently of such property.
(ii) A bequeaths 10, 000 rupees “to B for his life, and, after the death of B, to my
own right heirs”. The legacy after B’s death belongs to those who would be
entitled to it if it had formed part of A’s unbequeathed property.
(iii) A leaves his property to B; but if B dies before him, to B’s next-of-kin; B dies
before A; the property devolves as if it had belonged to B, and he had died
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intestate, leaving assets for the payment of his debts independently of such
property.
(iv) A leaves 10, 000 rupees “to B for his life, and after his decease to the heirs of
C”. The legacy goes as if it had belonged to C, and he had died intestate,
leaving assets for the payment of his debts independently of the legacy.
94. Bequest to “representatives”, etc., of particular person. Where a bequest is made to
the “representatives” or “legal representatives” or “personal representatives” or “executors or
administrators” of a particular person, and the class so designated forms the direct and independent
object of the bequest, the property bequeathed shall be distributed as if it had belonged to such
person and he had died intestate in respect of it.
Illustration
A bequest is made to the “legal representatives” of A. A has died intestate and insolvent. B is
his administrator. B is entitled to receive the legacy, and will apply it in the first place to the
discharge of such part of A’s debts as may remain unpaid: if there be any surplus B will pay it to
those persons who at A’s death would have been entitled to receive any property of A’ s which might
remain after payment of his debts, or to the representatives of such persons.
95. Bequest without words of limitation. Where property is bequeathed to any person, he is
entitled to the whole interest of the testator therein, unless it appears from the will that only a
restricted interest was intended for him.
96. Bequest in alternative. Where property is bequeathed to a person with a bequest in the
alternative to another person or to a class of persons, then, if a contrary intention does not appear by
the will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes
effect; but if he is then dead, the person or class of persons named in the second branch of the
alternative shall take the legacy.
Illustrations
(i) A bequest is made to A or to B. A survives the testator. B takes nothing.
(ii) A bequest is made to A or to B. A dies after the date of the will, and before the
testator. The legacy goes to B.
(iii) A bequest is made to A or to B. A is dead at the date of the will. The legacy
goes to B.
(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the
property absolutely.
(v) Property is bequeathed to A or his nearest of kin. A dies in the lifetime of the
testator. Upon the death of the testator, the bequest to A’s nearest of kin takes
effect.
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(vi) Property is bequeathed to A for life, and after his death to B or his heirs. A and
B survive the testator. B dies in A’s lifetime. Upon A’s death the bequest to
the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B
dies in the testator’s lifetime. A survives the testator. Upon A’s death the
bequest to the heirs of B takes effect.
97. Effect of words describing a class added to bequest to person. Where property is
bequeathed to a person, and words are added which describe a class of persons but do not denote
them as direct objects of a distinct and independent gift, such person is entitled to the whole interest
of the testator therein, unless a contrary intention appears by the will.
Illustrations
(i) A bequest is made―
A and his children,
to A and his children by his present wife,
to A and his heirs,
to A and the heirs of his body,
to A and the heirs male of his body,
to A and the heirs female of his body,
to A and his issue,
to A and his family,
to A and his descendants,
to A and his representatives,
to A and his personal representatives,
to A, his executors and administrators.
In each of these cases, A takes the whole interest which the testator had in the property.
(ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled
to the legacy.
(iii) A bequest is made to A for life and after his death to his issue. At the death of
A the property belongs in equal shares to all persons who then answer the
description of issue of A.
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98. Bequest to class of persons under general description only. Where a bequest is made
to a class of persons under a general description only, no one to whom the words of the description
are not in their ordinary sense applicable shall take the legacy.
99. Construction of terms. In a will―
(a) the word “children” applies only to lineal descendants in the first degree of the
person whose “children” are spoken of;
(b) the word “grandchildren” applies only to lineal descendants in the second
degree of the person whose “grandchildren” are spoken of;
(c) the words “nephews” and “nieces” apply only to children of brothers or
sisters;
(d) the words “cousins”, or “first cousins”, or “cousins-german”, apply only to
children of brothers or of sisters of the father or mother of the person whose
“cousins”, or “first cousins”, or “cousins-german”, are spoken of;
(e) the words “first cousins once removed” apply only to children of cousins-
german, or to cousins-german of a parent of the person whose “first cousins
once removed” are spoken of;
(f) the words “second cousins” apply only to grandchildren of brothers or of
sisters of the grandfather or grandmother of the person whose “second
cousins” are spoken of;
(g) the words “issue” and “descendants” apply to all lineal descendants whatever
of the person whose “issue” or “descendants” are spoken of;
(h) words expressive of collateral relationship apply alike to relatives of full and
of half blood; and
(i) all words expressive of relationship apply to a child in the womb who is
afterwards born alive.
100. Words expressing relationship denote only legitimate relatives or failing such
relatives reputed legitimate. In the absence of any intimation to the contrary in a will, the word
“child”, the word “son”, the word “daughter”, or any word which expresses relationship, is to be
understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a
person who has acquired, at the date of the will, the reputation of being such relative.
Illustrations
(i) A having three children, B, C and D, of whom B and C are legitimate and D is
illegitimate, leaves his property to be equally divided among “my children”.
The property belongs to B and C in equal shares, to the exclusion of D.
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(ii) A, having a niece of illegitimate birth, who has acquired the reputation of
being his niece, and having no legitimate niece, bequeaths a sum of money to
his niece. The illegitimate niece is entitled to the legacy.
(iii) A, having in his will enumerated his children, and named as one of them B,
who is illegitimate, leaves a legacy to “my said children”. B will take a share
in the legacy along with the legitimate children.
(iv) A leaves a legacy to “the children of B”. B is dead and has left none but
illegitimate children. All those who had at the date of the will acquired the
reputation of being the children of B are objects of the gift.
(v) A bequeaths a legacy to “the children of B”. B never had any legitimate child.
C and D had, at the date of the will, acquired the reputation of being children
of B. After the date of the will and before the death of the testator, E and F
were born, and acquired the reputation of being children of B. Only C and D
are objects of the bequest.
(vi) A makes a bequest in favour of his child by a certain woman, not his wife. B
had acquired at the date of the will the reputation of being the child of A by
the woman designated. B takes the legacy.
(vii) A makes a bequest in favour of his child to be born of a woman who never
becomes his wife. The bequest is void.
(viii) A makes a bequest in favour of the child of which a certain woman, not
married to him, is pregnant. The bequest is valid.
101. Rules of construction where will purports to make two bequests to same person.
Where a will purports to make two bequests to the same person, and a question arises whether the
testator intended to make the second bequest instead of or in addition to the first; if there is nothing
in the will to show what he intended, the following rules shall have effect in determining the
construction to be put upon the will:―
(a) If the same specific thing is bequeathed twice to the same legatee in the same
will or in the will and again in the codicil, he is entitled to receive that specific
thing only.
(b) Where one and the same will or one and the same codicil purports to make, in
two places, a bequest to the same person of the same quantity or amount of
anything, he shall be entitled to one such legacy only.
(c) Where two legacies of unequal amount are given to the same person in the
same will, or in the same codicil, the legatee is entitled to both.
(d) Where two legacies, whether equal or unequal in amount, are given to the
same legatee, one by a will and the other by a codicil, or each by a different
codicil, the legatee is entitled to both legacies.
Explanation.___ In clauses (a) to (d) of this section, the word “will” does not include a codicil.
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Illustrations
(i) A, having ten shares, and no more, in the Imperial Bank of India, made
his will, which contains near its commencement the words “I bequeath
my ten shares in the Imperial Bank of India to B”. After other
bequests, the will concludes with the words “and I bequeath my ten
shares in the Imperial Bank of India to B”. B is entitled simply to
receive A’s ten shares in the Imperial Bank of India.
(ii) A, having one diamond ring, which was given him by B, bequeaths to
C the diamond ring which was given by B. A afterwards made a
codicil to his will, and thereby, after giving other leagacies, he
bequeathed to C the diamond ring which was given him by B. C can
claim nothing except the diamond ring which was given to A by B.
(iii) A, by his will, bequeaths to B the sum of 5, 000 rupees and afterwards
in the same will repeats the bequest in the same words. B is entitled to
one legacy of 5, 000 rupees only.
(iv) A, by his will, bequeaths to B the sum of 5, 000 rupees and afterwards
in the same will bequeaths to B the sum of 6, 000 rupees. B is entitled
to receive 11, 000 rupees.
(v) A, by his will, bequeaths to B 5, 000 rupees and by a codicil to the will
he bequeaths to him 5, 000 rupees. B is entitled to receive 10, 000
rupees.
(vi) A, by one codicil to his will, bequeaths to B 5,000 rupees and by
another codicil bequeaths to him 6,000 rupees. B is entitled to receive
11,000 rupees.
(vii) A, by his will, bequeaths “500 rupees to B because she was my nurse”,
and in another part of the will bequeaths 500 rupees to B “because she
went to England with my children”. B is entitled to receive 1, 000
rupees.
(viii) A, by his will, bequeaths to B the sum of 5, 000 rupees and also, in
another part of the will, an annuity of 400 rupees. B is entitled to both
legacies.
(ix) A, by his will, bequeaths to B the sum of 5, 000 rupees and also
bequeaths to him the sum of 5, 000 rupees if he shall attain the age of
18. B is entitled absolutely to one sum of 5, 000 rupees, and takes a
contingent interest in another sum of 5, 000 rupees.
102. Constitution of residuary legatee. A residuary legatee may be constituted by any
words that show an intention on the part of the testator that the person designated shall take the
surplus or residue of his property.
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Illustrations
(i) A makes her will, consisting of several testamentary papers, in one of which
are contained the following words:— “I think there will be something left,
after all funeral expenses, etc., to give to B, now at school, towards equipping
him to any profession he may hereafter be appointed to.” B is constituted
residuary legatee.
(ii) A makes his will, with the following passage at the end of it:- “I believe there
will be found sufficient in my banker’s hands to defray and discharge my
debts, which I hereby, desire B to do, and keep the residue for her own use and
pleasure.” B is constituted the residuary legatee.
(iii) A bequeaths all his property to B, except certain stocks and funds, which he
bequeaths to C. B is the residuary legatee.
103. Property to which residuary legatee entitled. Under a residuary bequest, the legatee is
entitled to all property belonging to the testator at the time of his death, of which he has not made
any other testamentary disposition which is capable of taking effect.
Illustration
A by his will bequeaths certain legacies, of which one is void under section 118, and another
lapses by the death of the legatee. He bequeaths the residue of his property to B. After the date of his
will A purchases a zamindari, which belongs to him at the time of his death. B is entitled to the two
legacies and the zamindari as part of the residue.
104. Time of vesting legacy in general terms. If a legacy is given in general terms, without
specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the
death of the testator, and, if he dies without having received it, it shall pass to his representatives.
105. In what case legacy lapses.___(1) If the legatee does not survive the testator, the legacy
cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it
appears by the will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be
proved that he survived the testator.
Illustrations
(i) The testator bequeaths to B “500 rupees which B owes me”. B dies before the
testator; the legacy lapses.
(ii) A bequest is made to A and his children. A dies before the testator, or happens
to be dead when the will is made. The legacy to A and his children lapses.
(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A
dies before the testator. The legacy goes to B.
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(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in
the lifetime of the testator; B survives the testator. The bequest to B takes
effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth year, and
in case he should die before he completes his eighteenth year, to B. A
completes his eighteenth year, and dies in the lifetime of the testator. The
legacy to A lapses, and the bequest to B does not take effect.
(vi) The testator and the legatee perished in the same ship-wreck. There is no
evidence to show which died first. The legacy lapses.
106. Legacy does not lapse if one of two joint legatees die before testator. If a legacy is
given to two persons jointly, and one of them dies before the testator, the other legatee takes the
whole.
Illustration
The legacy is simply to A and B. A dies before the testator. B takes the legacy.
107. Effect of words showing testator’s intention to give distinct shares. If a legacy is
given to legatees in words which show that the testator intended to give them distinct shares of it,
then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall
into the residue of the testator’s property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies
before the testator. B and C will only take so much as they would have had if A had survived the
testator.
108. When lapsed share goes as undisposed of. Where a share which lapses is a part of the
general residue bequeathed by the will, that share shall go as undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and C, to be equally divided between
them. A dies before the testator. His one- third of the residue goes as undisposed of.
109. When bequest to testator’s child or lineal descendant does not lapse on his death in
testator’s lifetime. Where a bequest has been made to any child or other lineal descendant of the
testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives
the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had
happened immediately after the death of the testator, unless a contrary intention appears by the will.
Illustration
A makes his will, by which he bequeaths a sum of money to his son, B, for his own absolute
use and benefit. B dies before A, leaving a son, C, who survives A, and having made his will
whereby he bequeaths all his property to his widow, D. The money goes to D.
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110. Bequest to A for benefit of B does not lapse by A’s death. Where a bequest is made to
one person for the benefit of another, the legacy does not lapse by the death, in the testator’s lifetime,
of the person to whom the bequest is made.
111. Survivorship in case of bequest to described class. Where a bequest is made simply to
a described class of persons, the thing bequeathed shall go only to such as are alive at the testator’s
death.
Exception.___ If property is bequeathed to a class of persons described as standing in a
particular degree of kindred to a specified individual, but their possession of it is deferred until a time
later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that
time go to such of them as are then alive, and to the representatives of any of them who have died
since the death of the testator.
Illustrations
(i) A bequeaths 1, 000 rupees to “the children of B” without saying when it is to
be distributed among them. B had died previous to the date of the will, leaving
three children, C, D and E. E died after the date of the will, but before the
death of A. C and D survive A. The legacy will belong to C and D, to the
exclusion of the representatives of E.
(ii) A lease for years of a house, was bequeathed to A for his life, and after his
decease to the children of B. At the death of the testator, B had two children
living, C and D, and he never had any other child. Afterwards, during the
lifetime of A, C died, leaving E, his executor. D has survived A, D and E are
jointly entitled to so much of the leasehold term as remains unexpired.
(iii) A sum of money was bequeathed to A for her life, and after her decease to the
children of B. At the death of the testator, B had two children living, C and D,
and, after that event, two children, E and F, were born to B. C and E died in
the lifetime of A, C having made a will, E having made no will. A has died,
leaving D and F surviving her. The legacy is to be divided into four equal
parts, one of which is to be paid to the executor of C, one to D, one to the
administrator of E and one to F.
(iv) A bequeaths one- third of his lands to B for his life, and after his decease to
the sisters of B. At the death of the testator, B had two sisters living, C and D,
and after that event another sister E was born. C died during the life of B, D
and E have survived B. One-third of A’s land belong to D, E and the
representatives of C, in equal shares.
(v) A bequeaths 1, 000 rupees to B for life and after his death equally among the
children of C. Up to the death of B, C had not had any child. The bequest after
the death of B is void.
(vi) A bequeaths 1, 000 rupees to “all the children born or to be born” of B to be
divided among them at the death of C. At the death of the testator, B has two
children living, D and E. After the death of the testator, but in the lifetime of
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C, two other children, F and G, are born to B. After the death of C, another
child is born to B. The legacy belongs to D, E, F and G, to the exclusion of the
after- born child of B.
(vii) A bequeaths a fund to the children of B, to be divided among them when the
eldest shall attain majority. At the testator’s death, B had one child living,
named C. He afterwards had two other children, named D and E. E died, but C
and D were living when C attained majority. The fund belongs to C, D and the
representatives of E, to the exclusion of any child who may be born to B after
C’s attaining majority.
_______
CHAPTER VII
OF VOID BEQUETS
112. Bequest to person by particular description, who is not in existence at testator’s
death. Where a bequest is made to a person by a particular description, and there is no person in
existence at the testator’s death who answers the description, the bequest is void.
Exception.___ If property is bequeathed to a person described as standing in a particular
degree of kindred to a specified individual, but his possession of it is deferred until a time later than
the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the
description is alive at the death of the testator, or comes into existence between that event and such
later time, the property shall, at such later time, go to that person, or, if he is dead, to his
representatives.
Illustrations
(i) A bequeaths 1, 000 rupees to the eldest son of B. At the death of the testator, B
has no son. The bequest is void.
(ii) A bequeaths 1, 000 rupees to B for life, and after his death to the eldest son of
C. At the death of the testator, C had no son. Afterwards, during the life of B,
a son is born to C. Upon B’s death the legacy goes to C’s son.
(iii) A bequeaths 1, 000 rupees to B for life, and after his death to the eldest son of
C. At the death of the testator, C had no son. Afterwards, during the life of B,
a son, named D, is born to C. D dies, then B dies. The legacy goes to the
representative of D.
(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the
eldest son of C. Up to the death of B, C has had no son. The bequest to C’s
eldest son is void.
(v) A bequeaths 1, 000 rupees to the eldest son of C, to be paid to him after the
death of B. At the death of the testator C has no son, but a son is afterwards
born to him during the life of B and is alive at B’s death. C’s son is entitled to
the 1, 000 rupees.
113. Bequest to person not in existence at testator’s death subject to prior bequest.
Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a
prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of
the remaining interest of the testator in the thing bequeathed.
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Illustrations
(i) Property is bequeathed to A for his life, and after his death to his eldest son for
life, and after the death of the latter to his eldest son. At the time of the
testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest
to a person not in existence at the testator’s death. It is not a bequest of the
whole interest that remains to the testator. The bequest to A’s eldest son for
his life is void.
(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A
survives the testator. A has daughters some of whom were not in existence at
the testator’s death. The bequest to A’s daughters comprises the whole interest
that remains to the testator in the thing bequeathed. The bequest to A’s
daughters is valid.
(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with
a direction that, if any of them marries under the age of eighteen, her portion
shall be settled so that it may belong to herself for life and may be divisible
among her children after her death. A has no daughters living at the time of the
testator’s death, but has daughters born afterwards who survive him. Here the
direction for a settlement has the effect in the case of each daughter who marries
under eighteen of substituting for the absolute bequest to her a bequest to her
merely for her life; that is to say, a bequest to a person not in existence at the
time of the testator’s death of something which is less than the whole interest
that remains to the testator in the thing bequeathed. The direction to settle the
fund is void.
(iv) A bequeaths a sum of money to B for life, and directs that upon the death of B
the fund shall be settled upon his daughters, so that the portion of each
daughter may belong to herself for life, and may be divided among her
children after her death. B has no daughter living at the time of the testator’s
death. In this case the only bequest to the daughters of B is contained in the
direction to settle the fund, and this direction amounts to a bequest to persons
not yet born, of a life-interest in the fund, that is to say, of something which is
less than the whole interest that remains to the testator in the thing bequeathed.
The direction to settle the fund upon the daughters of B is void.
114. Rule against perpetuity. No bequest is valid whereby the vesting of the thing
bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death
and the minority of some person who shall be in existence at the expiration of that period, and to
whom, if he attains full age, the thing bequeathed is to belong.
Illustrations
(i) A fund is bequeathed to A for his life and after his death to B for his life I and
after B’s death to such of the sons of B as shall first attain the age of 25. A and
B survive the testator. Here the son of B who shall first attain the age of 25
may be a son born after the death of the testator; such son may not attain 25
until more than 18 years have elapsed from the death of the longer liver of A
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and B; and the vesting of the fund may thus be delayed beyond the lifetime of
A and B and the minority of the sons of B. The bequest after B’s death is void.
(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and
after B’s death to such of B’s sons as shall first attain the age of 25. B dies in
the lifetime of the testator, leaving one or more sons. In this case the sons of B
are persons living at the time of the testator’s decease, and the time when
either of them will attain 25 necessarily falls within his own lifetime. The
bequest is valid.
(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with
a direction that after B’s death it shall be divided amongst such of B’s children
as shall attain the age of 18, but that, if no child of B shall attain that age, the
fund shall go to C. Here the time for the division of the fund must arrive at the
latest at the expiration of 18 years from the death of B, a person living at the
testator’s decease. All the bequests are valid.
(iv) A fund is bequeathed to trustees for the benefit of the testator’s daughters,
with a direction that, if any of them marry under age, her share of the fund
shall be settled so as to devolve after her death upon such of her children as
shall attain the age of 18. Any daughter of the testator to whom the direction
applies must be in existence at his decease, and any portion of the fund which
may eventually be settled as directed must vest not later than 18 years from the
death of the daughters whose share it was. All these provisions are valid.
115. Bequest to a class some of whom may come under rule in Section 113 and 114. If a
bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the
provisions of section 113 or section 114, such bequest shall be 1[ void in regard to those persons
only, and not in regard to the whole class].
Illustrations
(i) A fund is bequeathed to A for life, and after his death to all his children who
shall attain the age of 25. A survives the testator, and has some children living
at the testator’s death. Each child of A’s living at the testator’s death must
attain the age of 25 (if at all) within the limits allowed for a bequest. But A
may have children after the testator’s decease, some of whom may not attain
the age of 25 until more than 18 years have elapsed after the decease of A. The
bequest to A’s children, therefor, is inoperative as to any child born after the
testator’s death; 2[and in regard to those who do not attain the age of 25 within
18 years after A’s death, but is operative in regard to the other children of A].
(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all
other children of A who shall attain the age of 25. B, C, D are children of A
living at the testator’s decease. In all other respects the case is the same as that
supposed in Illustration (i). 2[Although the mention of B, C and D does not
prevent the bequest from being regarded as a bequest to a class, it is not
wholly void. It is operative as regards any of the children B, C or D, who
attains the age of 25 within 18 years after A’s death].
1
Subs. by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s. 14, for “wholly void”.
2
Subs. ibid., for certain original words.
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1[116. Bequest to take effect on failure of prior bequest. Where by reason of any of the
rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is
void in regard to such person or the whole of such class, any bequest contained in the same will and
intended to take effect after or upon failure of such prior bequest is also void.]
Illustrations
(i) A fund is bequeathed to A for his life, and after his death to such of his sons as
shall first attain the age of 25, for his life, and after the decease of such son to
B. A and B survive the testator. The bequest to B is intended to take effect
after the bequest to such of the sons of A as shall first attain the age of 25,
which bequest is void under section 114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as
shall first attain the age of 25, and, if no son of A shall attain that age, to B. A
and B survive the testator. The bequest to B is intended to take effect upon
failure of the bequest to such of A’s sons as shall first attain the age of 25,
which bequest is void under section 114. The bequest to B is void.
2[117. Effect of direction for accumulation.___(1) Where the terms of a will direct that the
income arising from any property shall be accumulated either wholly or in part during any period
longer than a period of eighteen years from the death of the testator, such direction shall, save as
hereinafter provided, be void to the extent to which the period during which the accumulation is
directed exceeds the aforesaid period, and at the end of such period of eighteen years the property
and the income thereof shall be disposed of as if the period during which the accumulation has been
directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of―
(i) the payment of the debts of the testator or any other person taking any interest
under the will, or
(ii) the provision of portions for children or remoter issue of the testator or of any
other person taking any interest under the will, or
(iii) the preservation or maintenance of any property bequeathed;
and such direction may be made accordingly.]
118. Bequest to religious or charitable uses. No man having a nephew or niece or any
nearer relative shall have power to bequeath any property to religious or charitable uses, except by a
will executed not less than twelve months before his death, and deposited within six months from its
execution in some place provided by law for the safe custody of the wills of living persons.
1
Subs.by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s. 14, for the original section.
2
Subs. by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s. 14.,for the original section and the illustrations thereto.
Page 58 of 133
Illustrations
A having a nephew makes a bequest by a will not executed and deposited as required―
for the relief of poor people;
for the maintenance of sick soldiers ;
for the erection or support of a hospital ;
the education and preferment of orphans ;
for the support of scholars;
for the erection or support of a school ;
for the building and repairs of a bridge ;
for the making of roads ;
for the erection or support of a church ;
for the repairs of a church ;
for the benefit of ministers of religion ;
for the formation or support of a public garden.
All these bequests are void.
____
CHAPTER VIII
OF THE VESTING OF LEGACIES
119. Date of vesting of legacy when payment or possession postponed. Where by the terms of a
bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the
proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator’s
death, and shall pass to the legatee’s representatives if he dies before that time and without having
received the legacy, and in such cases the legacy is from the testator’s death said to be vested in
interest.
Explanation.___ An intention that a legacy to any person shall not become vested in interest in
him is not to be inferred merely from a provision whereby the payment or possession of the thing
bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or
whereby the income arising from the fund bequeathed is directed to be accumulated until the time of
payment arrives, or from a provision that, if a particular event shall happen, the legacy shall go over
to another person.
Illustrations
(i) A bequeaths to B 100 rupees, to be paid to him at the death of C. On A’s death
the legacy becomes vested in interest in B, and if he dies before C, his
representatives are entitled to the legacy.
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(ii) A bequeaths to B 100 rupees, to be paid to him upon his attaining the age of
18. On A’s death the legacy becomes vested in interest in B.
(iii) A fund is bequeathed to A for life, and after his death to B. On the testator’s
death the legacy to B becomes vested in interest in B.
(iv) A fund is bequeathed to A until B attains the age of 18 and then to B. The
legacy to B is vested in interest from the testator’s death.
(v) A bequeaths the whole of his property to B upon trust to pay certain debts out
of the income, and then to make over the fund to C. At A’s death the gift to C
becomes vested in interest in him.
(vi) A fund is bequeathed to A, B and C in equal shares to be paid to them on their
attaining the age of 18, respectively, with a proviso that, if all of them die
under the age of 18, the legacy shall devolve upon D. On the death of the
testator, the shares vested in interest in A, B and C, subject to be divested in
case A, B and C shall all die under 18, and, upon the death of any of them
(except the last survivor) under the age of 18, his vested interest passes, so
subject, to his representatives.
120. Date of vesting when legacy contingent upon specified uncertain event. ___(1) A
legacy bequeathed in case a specified uncertain event shall happen does not vest until that event
happens.
(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest
until the happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called
contingent.
Exception.___ Where a fund is bequeathed to any person upon his attaining a particular age,
and the will also gives to him absolutely the income to arise from the fund before he reaches that age,
or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest
of the fund is not contingent.
Illustrations
(i) A legacy is bequeathed to D in case A, B and C shall all die under the age of
18. D has a contingent interest in the legacy until A, B and C all die under 18,
or one of them attains that age.
(ii) A sum of money is bequeathed to A “in case he shall attain the age of 18”, or
“when he shall attain the age of 18”. A’s interest in the legacy is contingent
until the condition is fulfilled by his attaining that age.
(iii) An estate is bequeathed to A for life, and after his death to B if B shall then be
living; but if B shall not be then living to C. A, B and C survive the testator. B
and C each take a contingent interest in the estate until the event which is to
vest it in one or in the other has happened.
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(iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A
and C. Upon the death of B, C acquires a vested right to obtain possession of
the estate upon A’s death.
(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry
under that age with the consent of B, with a proviso that, if she neither attains
18 nor marries under that age with B’s consent, the legacy shall go to C. A and
C each take a contingent interest in the legacy. A attains the age of 18. A
becomes absolutely entitled to the legacy although she may have married
under 18 without the consent of B.
(vi) An estate is bequeathed to A until he shall marry and after that event to B. B’s
interest in the bequest is contingent until the condition is fulfilled by A’s
marrying.
(vii) An estate is bequeathed to A until he shall take advantage of any law for the
relief of insolvent debtors, and after that event to B. B’s interest in the bequest
is contingent until A takes advantage of such a law.
(viii) An estate is bequeathed to A if he shall pay 500 rupees to B. A’s interest in the
bequest is contingent until he has paid 500 rupees to B.
(ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of
Sultanpur Buzurg to C. B’s interest in the bequest is contingent until he has
conveyed the latter farm to C.
(x) A fund is bequeathed to A if B shall not marry C within five years after the
testator’s death. A’s interest in the legacy is contingent until the condition is
fulfilled by the expiration of the five years without B’s having married C, or
by the occurrence within that period of an event which makes the fulfilment of
the condition impossible.
(xi) A fund is bequeathed to A if B shall not make any provision for him by will.
The legacy is contingent until B’s death.
(xii) A bequeaths to B 500 rupees a year upon his attaining the age of 18, and
directs that the interest, or a competent part thereof, shall be applied for his
benefit until he reaches that age. The legacy is vested.
(xiii) A bequeaths to B 500 rupees when he shall attain the age of 18, and directs
that a certain sum, out of another fund, shall be applied for his maintenance
until he arrives at that age. The legacy is contingent.
121. Vesting of interest in bequest to such members of a class as shall have attained
particular age. Where a bequest is made only to such members of a class as shall have attained a
particular age, a person who has not attained that age cannot have a vested interest in the legacy.
Illustration
A fund is bequeathed to such of the children of A as shall attain the age of 18, with a
direction that, while any child of A shall be under the age of 18, the income of the share, to which it
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may be presumed he will be eventually entitled, shall be applied for his maintenance and education.
No child of A who is under the age of 18 has a vested interest in the bequest.
____
CHAPTER IX
OF ONEROUS BEQUESTS
122. Onerous bequests. Where a bequest imposes an obligation on the legatee, he can take
nothing by it unless he accepts it fully.
Illustration
A, having shares in (X), a prosperous joint stock company and also shares in (Y), a joint
stock company in difficulties, in respect of which shares heavy calls are expected to be made,
bequeaths to B all his shares in joint stock companies; B refuses to accept the shares in (Y). He
forfeits the shares in (X).
123. One of two separate and independent bequests to same person may be accepted,
and other refused. Where a will contains two separate and independent bequests to the same person,
the legatee is at liberty to accept one of them and refuse the other, although the former may be
beneficial and the latter onerous.
Illustration
A, having a lease for a term of years of a house at a rent which he and his representatives are
bound to pay during the term, and which is higher than the house can be let for, bequeaths to B the
lease and a sum of money. B refuses to accept the lease. He will not by this refusal forfeit the money.
___
CHAPTER X
OF CONTINGENT BEQUESTS
124. Bequest contingent upon specified uncertain event, no time being mentioned for its
occurrence. Where a legacy is given if a specified uncertain event shall happen and no time is
mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such
event happens before the period when the fund bequeathed is payable or distributable.
Illustrations
(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the
testator, the legacy to B does not take effect.
(ii) A legacy is bequeathed to A, and, in case of his death without children, to B. If
A survives the testator or dies in his lifetime leaving a child, the legacy to B
does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case
of his death, to B. A attains the age of 18. The legacy to B does not take effect.
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(iv) A legacy is bequeathed to A for life, and, after his death to B, and, “in case of
B’s death without children”, to C. The words “in case of B’s death without
children” are to be understood as meaning “in case B dies without children
during the lifetime of A”.
(v) A legacy is bequeathed to A for life, and, after his death to B, and, “in case of
B’s death”, to C. The words “in case of B’s death” are to be considered as
meaning “in case B dies in the lifetime of A”.
125. Bequest to such of certain persons as shall be surviving at some period not
specified. Where a bequest is made to such of certain persons as shall be surviving at some period,
but the exact period is not specified, the legacy shall go to such of them as are alive at the time of
payment or distribution, unless a contrary intention appears by the will.
Illustrations
(i) Property is bequeathed to A and B to be equally divided between them, or to
the survivor of them. If both A and B survive the testator, the legacy is equally
divided between them. If A dies before the testator, and B survives the
testator, it goes to B.
(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be
equally divided between them, or to the survivor of them. B dies during the
life of A; C survives A. At A’s death the legacy goes to C.
(iii) Property is bequeathed to A for life, and after his death to B and C, or the
survivor, with a direction that, if B should not survive the testator, his children
are to stand in his place. C dies during the life of the testator; B survives the
testator, but dies in the lifetime of A. The legacy goes to the representative of
B.
(iv) Property is bequeathed to A for life, and, after his death, to B and C, with a
direction that, in case either of them dies in the lifetime of A, the whole shall
go to the survivor. B dies in the lifetime of A. Afterwards C dies in the
lifetime of A. The legacy goes to the representative of C.
______
CHAPTER XI
OF CONDITIONAL BEQUESTS
126. Bequest upon impossible condition. A bequest upon an impossible condition is void.
Illustrations
(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an
hour. The bequest is void.
(ii) A bequeaths 500 rupees to B on condition that he shall marry A’s daughter.
A’s daughter was dead at the date of the will. The bequest is void.
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127. Bequest upon illegal or immoral condition. A bequest upon a condition, the fulfilment
of which would be contrary to law or to morality, is void.
Illustrations
(i) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest
is void.
(ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The
bequest is void.
128. Fulfilment of condition precedent to vesting of legacy. Where a will imposes a
condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the
condition shall be considered to have been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent
of B, C, D and E. A marries with the written consent of B, C is present at the
marriage. D sends a present to A previous to the marriage. E has been
personally informed by A of his intentions, and has made no objection. A has
fulfilled the condition.
(ii) A legacy is bequeathed to A on condition that he shall marry with the consent
of B, C and D. D dies. A marries with the consent of B and C. A has fulfilled
the condition.
(iii) A legacy is bequeathed to A on condition that he shall marry with the consent
of B, C and D. A marries in the lifetime of B, C and D, with the consent of B
and C only. A has not fulfilled the condition.
(iv) A legacy is bequeathed to A on condition that he shall marry with the consent
of B, C and D. A obtains the unconditional assent of B, C and D to his
marriage with E. Afterwards B, C and D capriciously retract their consent. A
marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on condition that he shall marry with the consent
of B, C and D. A marries without the consent of B, C and D but obtains their
consent after the marriage. A has not fulfilled the condition.
(vi) A makes his will whereby he bequeaths a sum of money to B if B shall marry
with the consent of A’s executors. B marries during the lifetime of A, and A
afterwards expresses his approbation of the marriage. A dies. The bequest to B
takes effect.
(vii) A legacy is bequeathed to A if he executes a certain document within a time
specified in the will. The document is executed by A within a reasonable time,
but not within the time specified in the will. A has not performed the
condition, and is not entitled to receive the legacy.
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129. Bequest to A and on failure of prior bequest to B. Where there is a bequest to one
person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest
shall take effect upon the failure of the prior bequest although the failure may not have occurred in
the manner contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own children surviving him, and, they all
die under 18, to B. A dies without having sever had a child. The bequest to B
takes effect.
(ii) A bequeaths a sum of money to B, on condition that he shall execute a certain
document within three months after A’s death, and, if he should neglect to do
so, to C. B dies in the testator’s life-time. The bequest to C takes effect.
130. When second bequest not to take effect on failure of first. Where the will shows an
intention that the second bequest shall take effect only in the event of the first bequest failing in a
particular manner, the second bequest shall not take effect, unless the prior bequest fails in that
particular manner.
Illustration
A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that
which he had bequeathed to her. A and his wife perish together, under circumstances which make it
impossible to prove that she died before him; the bequest to B does not take effect.
131. Bequest over conditional upon happening or not happening of specified uncertain
event.___(1) A bequest may be made to any person with the condition super- added that, in case a
specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in
case a specified uncertain event shall not happen, the thing bequeathed shall go over to another
person.
(2) In each case the ulterior bequest is subject to the rules contained in sections 120, 121, 122,
123, 124, 125, 126, 127, 129 and 130.
Illustrations
(i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if
he shall die before he attains that age, to B. A takes a vested interest in the
legacy subject to be divested and to go to B in case A dies under 18.
(ii) An estate is bequeathed to A with a proviso that if A shall dispute the
competency of the testator to make a will, the estate shall go to B. A disputes
the competency of the testator to make a will. The estate goes to B.
(iii) A sum of money is bequeathed to A for life, and, after his death, to B; but if B
shall then be dead, leaving a son, such son is to stand in the place of B. B takes
a vested interest in the legacy, subject to be divested if he dies leaving a son in
A’s lifetime.
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(iv) A sum of money is bequeathed to A and B, and if either should die during the
life of C, then to the survivor living at the death of C. A and B die before C.
The gift over cannot take effect, but the representative of A takes one-half of
the money, and the representative of B takes the other half.
(v) A bequeaths to B the interest of a fund for life, and directs the fund to be
divided at her death equally among her three children, or such of them as shall
be living at her death. All the children of B die in B’s lifetime. The bequest
over cannot take effect, but the interests of the children pass to their
representatives.
132. Condition must be strictly fulfilled. An ulterior bequest of the kind contemplated by
section 131 cannot take effect, unless the condition is strictly fulfilled.
Illustrations
(i) A legacy is bequeathed to A, with a proviso that, if he marries without the
consent of B, C and D, the legacy shall go to E. D dies. Even if A marries
without the consent of B and C, the gift to E does not take effect.
(ii) A legacy is bequeathed to A, with a proviso that, if he marries without the
consent of B, the legacy shall go to C. A marries with the consent of B. He
afterwards becomes a widower and marries again without the consent of B.
The bequest to C does not take effect.
(iii) A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that,
if A dies under 18 or marries without the consent of B, the legacy shall go to
C. A marries under 18, without the consent of B. The bequest to C takes
effect.
133. Original bequest not affected by invalidity of second. If the ulterior bequest be not
valid the original bequest is not affected by it.
Illustrations
(i) An estate is bequeathed to A for his life with condition super-added that, if he
shall not on a given day walk 100 miles in an hour, the estate shall go to B.
The condition being void, A retains his estate as if no condition had been
inserted in the will.
(ii) An estate is bequeathed to A for her life and, if she do not desert her husband,
to D. A is entitled to the estate during her life as if no condition had been
inserted in the will.
(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B
for life. B, at the date of the testator’s death, had not had a son. The bequest
over is void under section 105, and A is entitled to the estate during his life.
134. Bequest conditioned that it shall cease to have effect in case a specified uncertain
event shall happen, or not happen. A bequest may be made with the condition superadded that it
Page 66 of 133
shall cease to have effect in case a specified uncertain event shall happen, or in case a specified
uncertain event shall not happen.
Illustrations
(i) An estate is bequeathed to A for his life, with a proviso that, in case he shall
cut down a certain wood, the bequest shall cease to have any effect. A cuts
down the wood. He loses his life- interest in the estate.
(ii) An estate is bequeathed to A, provided that, if he marries under the age of 25
without the consent of the executors named in the will, the estate shall cease to
belong to him. A marries under 25 without the consent of the executors. The
estate ceases to belong to him.
(iii) An estate is bequeathed to A, provided that, if he shall not go to England
within three years after the testator’s death, his interest in the estate shall
cease. A does not go to England within the time prescribed. His interest in the
estate ceases.
(iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she
shall cease to have any interest in the estate. A becomes a nun. She loses her
interest under the will.
(v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be then
living, with a proviso that, if B shall become a nun, the bequest to her shall
cease to have any effect. B becomes a nun in the lifetime of A. She thereby
loses her contingent interest in the fund.
135. Such condition must not be invalid under section 120. In order that a condition that a
bequest shall cease to have effect may be valid, it is necessary that the event to which it relates be
one which could legally constitute the condition of a bequest as contemplated by section 120.
136. Result of legatee rendering impossible or indefinitely postponing act for which no
time specified, and on non-performance of which subject matter to go over. Where a bequest is
made with a condition superadded that, unless the legatee shall perform a certain act, the subject-
matter of the bequest shall go to another person, or the bequest shall cease to have effect but no time
is specified for the performance of the act; if the legatee takes any step which renders impossible or
indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had
died without performing such act.
Illustrations
(i) A bequest is made to A, with a proviso that, unless he enters the Army, the
legacy shall go over to B. A takes Holy Orders, and thereby renders it
impossible that he should fulfil the condition. B is entitled to receive the
legacy.
(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if
he does not marry B’s daughter. A marries a stranger and thereby indefinitely
postpones the fulfilment of the conditions. The bequest ceases to have effect.
Page 67 of 133
137. Performance of condition, precedent or subsequent, within specified time. Further
time in case of fraud. Where the will requires an act to be performed by the legatee within a
specified time, either as a condition to be fulfilled before the legacy is enjoyed, or as a condition
upon the non- fulfilment of which the subject- matter of the bequest is to go over to another person
or the bequest is to cease to have effect, the act must be performed within the time specified, unless
the performance of it be prevented by fraud, in which case such further time shall be allowed as shall
be requisite to make up for the delay caused by such fraud.
____
CHAPTER XII
OF BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR ENJOYMENT
138. Direction that fund be employed in particular manner following absolute bequest
of same to or for benefit of any person. Where a fund is bequeathed absolutely to or for the benefit
of any person, but the will contains a direction that it shall be applied or enjoyed in a particular
manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.
Illustration
A sum of money is bequeathed towards purchasing a country residence for A, or to purchase
an annuity for A, or to place A in any business. A chooses to receive the legacy in money. He is
entitled to do so.
139. Direction that mode of enjoyment of absolute bequest is to be restricted, to secure
specified benefit for legatee. Where a testator absolutely bequeaths a fund, so as to sever it from his
own estate but directs that the mode of enjoyment of it by the legatee shall be restricted so as to
secure a specified benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund
belongs to him as if the will had contained no such direction.
Illustrations
(i) A bequeaths the residue of his property to be divided equally among his
daughters, and directs that the shares of the daughters shall be settled upon
themselves respectively for life and be paid to their children after their death.
All the daughters die unmarried. The representatives of each daughter are
entitled to her share of the residue.
(ii) A directs his trustees to raise a sum of money for his daughter, and he then
directs that they shall invest the fund and pay the income arising from it to her
life, and divide the principal among her children after her death. The daughter
dies without having ever had a child. Her representatives are entitled to the
fund.
140. Bequest of fund for certain purposes, some of which cannot be fulfilled. Where a
testator does not absolutely bequeath a fund, so as to sever it from his own estate, but gives it for
certain purposes, and part of those purposes cannot be fulfilled, the fund, or so much of it as has not
been exhausted upon the objects contemplated by the will, remains a part of the estate of the testator.
Illustrations
(i) A directs that his trustees shall invest a sum of money in a particular way, and
shall pay the interest to his son for life, and at his death shall divide the
principal among his children. The son dies without having ever had a child.
The fund, after the son’s death, belongs to the estate of the testator.
Page 68 of 133
(ii) A bequeaths the residue of his estate, to be divided equally among his
daughters, with a direction that they are to have the interest only during their
lives, and that at their decease the fund shall go to their children. The
daughters have no children. The fund belongs to the estate of the testator.
_____
CHAPTER XIII
OF BEQUESTS TO AN EXECUTOR
141. Legatee named as executor cannot take unless he shows intention to act as
executor. If a legacy is bequeathed to a person who is named an executor of the will, he shall not
take the legacy, unless he proves the will or otherwise manifests an intention to act as executor.
Illustration
A legacy is given to A, who is named an executor. A orders the funeral according to the
directions contained in the will, and dies a few days after the testator, without having proved the will.
A has manifested an intention to act as executor.
_____
CHAPTER XIV
OF SPECIFIC LEGACIES
142. Specific legacy defined. Where a testator bequeaths to any person a specified part of his
property, which is distinguished from all other parts of his property, the legacy is said to be specific.
Illustrations
(i) A bequeaths to B―
“the diamond ring presented to me by C”:
“my gold chain”:
“a certain bale of wool”:
“a certain piece of cloth”:
“all my household goods which shall be in or about my dwelling-
house in M Street, in 1[Karachi], at time of my death”:
“the sum of 1, 000 rupees in a certain chest”:
“the debt which B owes me”:
“all my bills, bonds and securities belonging to me lying in my
lodgings in 1[Karachi]”:
“all my furniture in my house in 1[Karachi]”:
“all my goods on board a certain ship now lying in the river 2[Indus]”:
“2, 000 rupees which I have in the hands of C”:
“the money due to me on the bond of D”:
“my mortgage on the 3[Rahimyar khan] factory”:
“one- half of the money owing to me on my mortgage of
3
[Rahimyarkhan] factory”:
“1, 000 rupees, being part of a debt due to me from C”:
“my capital stock of 1, 000, in East India Stock”:
“my promissory notes of the 4[Federal Government] for 10, 000 rupees
in their 4 percent loan”:
1
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch. II for “Calcutta”.
2
Subs. ibid., for “Hughli”.
3
Subs. ibid., for “Rampur”.
4
3Subs. by F.A.O., 1975, Art. 2 and Table for “Central Government which was previously amended by A.O., 1937 for “G. of I.”.
Page 69 of 133
“all such sums of money as my executors may, after my death, receive
in respect of the debt due to me from the insolvent firm of D and
Company”:
“all the wine which I may have in my cellar at the time of my death”:
“such of my horses as B may select”:
“all my shares in the 1[National Bank of Pakistan]”:
“all my shares in the 1[National Bank of Pakistan] which I may possess
at the time of my death”:
“all the money which I have in the 5-1/2 per cent. loan of the 2[Federal
Government]”:
“all the Government securities I shall be entitled to at the time of my
decease.”
Each of these legacies is specific.
(ii) A, having Government promissory notes for 10,000 rupees, bequeaths
to his executors “Government promissory notes for 10,000 rupees in
trust to sell” for the benefit of B. The legacy is specific.
(iii)A having property at 3[Peshawar], and also in other places, bequeaths to
B all his property at 3[Peshawar]. The legacy is specific.
(iv) A bequeaths to B―
his house in 4[Karachi]:
his zamindari of 5[Rahimyarkhan]:
his taluq of 6[Nawabshah]:
his lease of the indigo- factory of Salkya:
an annuity of 500 rupees out of the rents of his zamindari of W.
A directs his zamindari of X to be sold, and the proceeds to be invested for the benefit of B.
Each of these bequests is specific.
(v) A by his will charges his zamindari of Y with an annuity of 1, 000
rupees to C during his life, and subject to this charge he bequeaths the
zamindari to D. Each of these bequests is specific.
(vi) A bequeaths a sum of money―
to buy a house in 4[Karachi] for B:
to buy an estate in zila 7[Peshawar] for B:
to buy a diamond ring for B;
to buy a horse for B:
to be invested in shares in the 8[National Bank of Pakistan] for
B:
to be invested in Government securities for B.
1
Subs. by Ord. 27 of 1981, s. 3 and Sch., II for “ Imperial Bank of India”.
2
Subs. by F.A.O., 1975, Art. 2 and Table for “Central Government which was previously amended by A.O., 1937 for “G. of I.
3
Subs. ibid., for “Benares”
4
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Sch., II, for “Calcutta”.
5
Subs. ibid., for “Rampur”.
6
Subs. ibid., for “Ramnagar”.
7
Subs. ibid., for “Faridpur”.
8
Subs. ibid., for “Imperial Bank of India”.
Page 70 of 133
A bequeaths to B―
“
a diamond ring”:
“a horse”:
“10, 000 rupees worth of Government securities”:
“an annuity of 500 rupees”:
“2, 000 rupees to be paid in cash”:
“so much money as will produce 5, 000 rupees four per cent.
Government securities.”
These bequests are not specific.
(vii) A, having property in England and property in 1[Pakistan], bequeaths a legacy
to B, and directs that it shall be paid out of the property which he may leave in
1
[Pakistan]. He also bequeaths a legacy to C, and directs that it shall be paid
out of property which he may leave in England. No one of these legacies is
specific.
143. Bequest of certain sum where stocks, etc., in which invested are described. Where a
certain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities in
which it is invested are described in the will.
Illustration
A bequeaths to B―
“
10, 000 rupees of my funded property”:
“10, 000 rupees of my property now invested in shares of the 2[National Bank of
Pakistan]”:
“10, 000 rupees, at present secured by mortgage of 3[Rahimyarkhan] factory.”
No one of these legacies is specific.
144. Bequest of stock where testator had, at date of will, equal or greater amount of
stock of same kind. Where a bequest is made in general terms of a certain amount of any kind of
stock, the legacy is not specific merely because the testator was, at the date of his will, possessed of
stock of the specified kind, to an equal or greater amount than the amount bequeathed.
Illustration
A bequeaths to B 5,000 rupees five per cent. Government securities. A had at the date of the
will five per cent. Government securities for 5,000 rupees. The legacy is not specific.
145. Bequest of money where not payable until part of testator’s property disposed of in
certain way. A money legacy is not specific merely because the will directs its payment to be
postponed until some part of the property of the testator has been reduced to a certain form, or
remitted to a certain place.
Illustration
A bequeaths to B 10, 000 rupees and directs that this legacy shall be paid as soon as A’s
property in India shall be realised in England. The legacy is not specific.
146. When enumerated articles not deemed specifically bequeathed. Where a will
contains a bequest of the residue of the testator’s property along with an enumeration of some items
of property not previously bequeathed, the articles enumerated shall not be deemed to be specifically
bequeathed.
1
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Sch., II, for “India”.
2
Subs. ibid., for “East Indian Railway Company”.
3
Subs. ibid., for “Rampur”.
Page 71 of 133
147. Retention, in form of specific bequest to several persons in succession.
Where property is specifically bequeathed to two or more persons in succession, it shall be retained
in the form in which the testator left it, although it may be of such a nature that its value is
continually decreasing.
Illustrations
(i) A, having lease of a house for a term of years, fifteen of which were unexpired
at the time of his death, has bequeathed the lease to B for his life, and after B’s
death to C. B is to enjoy the property as A left it, although, if B lives for
fifteen years, C can take nothing under the bequest.
(ii) A, having an annuity during the life of B, bequeaths it to C, for his life, and,
after C’s death, to D. C is to enjoy the annuity as A left it, although, if B dies
before D, D can take nothing under the bequest.
148. Sale and investment of proceeds of property bequeathed to two or more person in
succession. Where property comprised in a bequest to two or more persons in succession is not
specifically bequeathed, it shall, in the absence of any direction to the contrary, be sold, and the
proceeds of the sale shall be invested in such securities as the High Court may by any general rule
authorise or direct, and the fund thus constituted shall be enjoyed by the successive legatees
according to the terms of the will.
Illustration
A, having a lease for a term of years, bequeaths all his property to B for life, and, after B’s
death, to C. The lease must be sold, the proceeds invested as stated in this section and the annual
income arising from the fund is to be paid to B for life. At B’s death the capital of the fund is to be
paid to C.
149. Where deficiency of assets to pay legacies, specific legacy not to abate with general
legacies. If there is a deficiency of assets to pay legacies, a specific legacy is not liable to abate with
the general legacies.
____
CHAPTER XV
OF DEMONSTRATIVE LEGACIES
150. Demonstrative legacy defined. Where a testator bequeaths a certain sum of money, or a
certain quantity of any other commodity, and refers to a particular fund or stock so as to constitute
the same the primary fund or stock out of which payment is to be made, the legacy is said to be
demonstrative.
Explanation.―The distinction between a specific legacy and a demonstrative legacy consists
in this, that―
where specified property is given to the legatee, the legacy is specific;
where the legacy is directed to be paid out of specified property, it is demonstrative.
Illustrations
(i) A bequeaths to B, 1, 000 rupees, being part of a debt due to him from W. He
also bequeaths to C 1, 000 rupees to be paid out of the debt due to him from
W. The legacy to B is specific, the legacy to C is demonstrative.
Page 72 of 133
(ii) A bequeaths to B___
“ten bushels of the corn which shall grow in my field of Green Acre”:
“80 chests of the indigo which shall be made at my factory of
1
[Rahimyarkhan]”:
“10, 000 rupees out of my five per cent. promissory notes of the
2
[Federal Government]”:
an annuity of 500 rupees “from my funded property”:
“1, 000 rupees out of the sum of 2, 000 rupees due to me by C”:
an annuity, and directs it to be paid “out of the rents arising from my
taluk of 3[Nawabshah]”.
(iii) A bequeaths to B___
“
10, 000 rupees out of my estate at 3[Nawabshah],” or charges it on his
estate at 3[Nawabshah]:”
“10, 000 rupees, being my share of the capital embarked in a certain
business”,
Each of these bequests is demonstrative.
151. Order of payment when legacy directed to be paid out of fund the subject of specific
legacy. Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the
same fund, the portion specifically bequeathed shall first be paid to the legatee, and the demonstrative
legacy shall be paid out of the residue of the fund and, so far as the residue shall be deficient, out of
the general assets of the testator.
Illustration
A bequeaths to B 1, 000 rupees, being part of a debt due to him from W. He also bequeaths to
C 1, 000 rupees to be paid out of the debt due to him from W. The debt due to A from W is only
1,500 rupees of these 1, 500 rupees, 1, 000 rupees belong to B, and 500 rupees are to be paid to C. C
is also to receive 500 rupees out of the general assets of the testator.
____
CHAPTER XVI
OF ADEMPTION OF LEGACIES
152. Ademption explained. If anything which has been specifically bequeathed does not
belong to the testator at the time of his death, or has been converted into property of a different kind,
the legacy is adeemed: that is, it cannot take effect, by reason of the subject- matter having been
withdrawn from the operation of the will.
1
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch., II for “Rampur”.
2
Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government” which was previously amended by A.O., 1937, for “G. of I.”.
3
Subs. by Ord. 27 of 1981, s. 3 and Sch., II, for “Ramnagar”.
Page 73 of 133
Illustrations
(i) A bequeaths to B―
“the diamond ring presented to me by C”:
“my gold chain”:
“a certain bale of wool”:
“a certain piece of cloth”:
“all my household goods which shall be in or about my dwelling-
house in M Street in 1[Sahiwal], at the time of my death” ;
A in his lifetime,___
sells or gives away the ring:
converts the chain into a cup:
converts the wool into cloth:
makes the cloth into a garment:
takes another house into which he removes all his goods.
Each of these legacies is adeemed.
(ii) A bequeaths to B―
“
the sum of 1, 000 rupees, in a certain chest”:
“all the horses in my stable”.
At the death of A, no money is found in the chest, and no horses in the stable. The
legacies are adeemed.
(iii) A bequeaths to B certain bales of goods. A takes the goods with him on a
voyage. The ship and goods are lost at sea, and A is drowned. The legacy is
adeemed.
153. Non- ademption of demonstrative legacy. A demonstrative legacy is not adeemed by
reason that the property on which it is charged by the will does not exist at the time of the death of
the testator, or has been converted into property of a different kind, but it shall in such case be paid
out of the general assets of the testator.
154. Ademption of specific bequest of right to receive something from third party.
Where the thing specifically bequeathed is the right to receive something of value from a third party,
and the testator himself receives it, the bequest is adeemed.
Illustrations
(i) A bequeaths to B―
“the debt which C owes me”:
“2, 000 rupees which I have in the hands of D”:
“the money due to me on the bond of E”:
1
Subs. by the Federal Laws (Revision and Declaration Ordinance, 1981 (27 of 1981), s. 3 and Sch., II, for “Dacca”, which was previously amended by
Ord. 21 of 1960, s. 3 and 2nd Sch., for “Calcutta”, (w.e.f. 14th Oct., 1955).
Page 74 of 133
“my mortgage on the 1[Rahimyarkhan] factory”.
All these debts are extinguished in A’s lifetime, some with and some without his consent. All
the legacies are adeemed.
(ii) A bequeaths to B his interest in certain policies of his life assurance. A in his
lifetime receives the amount of the policies. The legacy is adeemed.
155. Ademption pro tanto by testator’s receipt of part of entire thing specifically
bequeathed. The receipt by the testator of a part of an entire thing specifically bequeathed shall
operate as an ademption of the legacy to the extent of the sum so received.
Illustration
A bequeaths to B “the debt due to me by C”. The debt amounts to 10, 000 rupees. C pays to
A 5,000 rupees the one-half of the debt. The legacy is revoked by ademption, so far as regards the
5,000 rupees received by A.
156. Ademption pro tento by testator’s receipt of portion of entire fund of which portion
has been specifically bequeathed. If a portion of an entire fund or stock is specifically bequeathed,
the receipt by the testator of a portion of the fund or stock shall operate as an ademption only to the
extent of the amount so received; and the residue of the fund or stock shall be applicable to the
discharge of the specific legacy.
Illustration
A bequeaths to B one-half of the sum of 10,000 rupees due to him from W. A in his lifetime
receives 6,000 rupees, part of the 10,000 rupees. The 4, 000 rupees which are due from W to A at the
time of his death belong to B under the specific bequest.
157. Order of payment where portion of fund specifically bequeathed to one legatee, and
legacy charged. on same fund to another, and, testator having received portion of that fund,
remainder insufficient to pay both legacies. Where a portion of a fund is specifically bequeathed to one
legatee, and a legacy charged on the same fund is bequeathed to another legatee, then, if the testator
receives a portion of that fund, and the remainder of the fund is insufficient to pay both the specific and
the demonstrative legacy, the specific legacy shall be paid first, and the residue (if any) of the fund
shall be applied so far as it will extend in payment of the demonstrative legacy, and the rest of the
demonstrative legacy shall be paid out of the general assets of the testator.
Illustration
A bequeaths to B 1,000 rupees, part of the debt of 2,000 rupees due to him from W. He also
bequeaths to C 1,000 rupees to be paid out of the debt due to him from W. A afterwards receives
2
[500] rupees, part of that debt, and dies leaving only 1,500 rupees due to him from W. Of these
1,500 rupees, 1,000 rupees belong to B, and 500 rupees are to be paid to C. C is also to receive 500
rupees out of the general assets of the testator.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3. and 2 nd Sch., for “Rampur” (with effect from the 24th October, 1955).
2
Subs. by the Repealing and Amending Act, 1927 (10 of 1927), s. 2 and 1 st Sch., for “5000”.
Page 75 of 133
158. Ademption where stock, specifically bequeathed, does not exist at testator’s death.
Where stock which has been specifically bequeathed does not exist at the testator’s death, the legacy
is adeemed.
Illustration
___
A bequeaths to B
“
my capital stock of 1, 000 in East India Stock”:
“my promissory notes of the 1[Federal Government] for 10, 000 rupees in their
4 per cent. loan”.
A sells the stock and the notes. The legacies are adeemed.
159. Ademption pro tanto where stock, specifically bequeathed, exists in part only at
testator’s death. Where stock which has been specifically bequeathed exists only in part at the
testator’s death, the legacy is adeemed so far as regards that part of the stock which has ceased to
exist.
Illustration
A bequeaths to B his 10,000 rupees in the 5-1/2 per cent. loan of the 1[Federal Government].
A sells one- half of his 10, 000 rupees in the loan in question. One- half of the legacy is adeemed.
160. Non-ademption of specific bequest of goods described as connected with certain
place, by reason of removal. A specific bequest of goods under a description connecting them with
a certain place is not adeemed by reason that they have been removed from such place from any
temporary cause, or by fraud, or without the knowledge or sanction of the testator.
Illustrations
(i) A bequeaths to B “all my household goods which shall be in or about my
dwelling- house in 2[Faisalabad] at the time of my death”. The goods are
removed from the house to save them from fire. A dies before they are brought
back.
(ii) A bequeaths to B “all my household goods which shall be in or about my
dwelling- house in 2[Faisalabad] at the time of my death”. During A’s absence
upon a journey, the whole of the goods are removed from the house. A dies
without having sanctioned their removal.
Neither of these legacies is adeemed.
161. When removal of thing bequeathed does not constitute ademption. The removal of
the thing bequeathed from the place in which it is stated in the will to be situated does not constitute
an ademption, where the place is only referred to in order to complete the description of what the
testator meant to bequeath.
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government “ which was previously amended by A. O., 1937, for “G. of I.”.
2
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch., II for “Calcutta”.
Page 76 of 133
Illustrations
(i) A bequeaths to B “all the bills, bonds and other securities for money belonging
to me now lying in my lodgings in 1[Karachi]”. At the time of his death these
effects had been removed from his lodgings in 1[Karachi].
(ii) A bequeaths to B all his furniture then in his house in 1[Karachi]. The testator
has a house at 1[Karachi] and another at 2[Quetta], in which he lives
alternately, being possessed of one set of furniture only which he removes
with himself to each house. At the time of his death the furniture is in the
house at 2[Quetta].
(iii) A bequeaths to B all his goods on board a certain ship then lying in the river
3
[Indus]. The goods are removed by A’s directions to a warehouse, in which
they remain at the time of A’s death.
No one of these legacies is revoked by ademption.
162. When thing bequeathed is a valuable to be received by testator from third person;
and testator himself, or his representative, receives it. Where the thing bequeathed is not the right
to receive something of value from a third person, but the money or other commodity which may be
received from third person by the testator himself or by his representatives, the receipt of such sum
of money or other commodity by the testator shall not constitute an ademption; but if he mixes it up
with the general mass of his property, the legacy is adeemed.
Illustration
A bequeaths to B whatever sum may be received from his claim on C. A receives the whole
of his claim on C, and sets it apart from the general mass of his property. The legacy is not adeemed.
163. Change by operation of law of subject of specific bequest between date of will and
testator’s death. Where a thing specifically bequeathed undergoes a change between the date of the
will and the testator’s death, and the change takes place by operation of law, or in the course of
execution of the provisions of any legal instrument under which the thing bequeathed was held, the
legacy is not adeemed by reason of such change.
Illustrations
(i) A bequeaths to B “all the money which I have in the 5-1/2 per cent. loan of the
4
[Federal Government]”. The securities for the 5-1/2 per cent. loan are
converted during A’s lifetime into 5 per cent. stock.
(ii) A bequeaths to B the sum of 2, 000/. invested in Consols in the names of
trustees for A. The sum of 2, 000/. is transferred by the trustees into A’s own
name.
(iii) A bequeaths to B the sum of 10, 000 rupees in promissory notes of the
4
[Federal Government] which he has power under his marriage settlement to
dispose of by will. Afterwards, in A’s lifetime, the fund is converted into
Consols by virtue of an authority contained in the settlement.
No one of these legacies has been adeemed.
1
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch., for “Dacca”, which was previously amended by
Ord. 21 of 1960, s.3 and Sch.,for “Calcutta”, (w.e.f. 14th Oct., 1955).
2
Subs. by Ord. 27 of 1981, s. 3 and Sch., II , for “Chalna”, which was previously amended by Ord. 21 of 1960, s. 3 and 2 nd Sch., for “Chinsurah”.
3
Subs. by Ord. 27 of 1981, s. 3 and Sch., II for “Padma”, which was previously amended by 21 of 1960, s. 3 and 2 nd Sch., for “Hughli”.
4
Subs. by F.A.O., 1975 Art. 2 and Table, for “Central Government” which was previously amended by A. O., 1937, for “G. of I.”.
Page 77 of 133
164. Change of subject without testator’s knowledge. Where a thing specifically
bequeathed undergoes a change between the date of the will and the testator’s death, and the change
takes place without the knowledge or sanction of the testator, the legacy is not adeemed.
Illustration
A bequeaths to B “all my 3 per cent Consols”. The Consols are, without A’s knowledge, sold
by his agent, and the proceeds converted into East India Stock. This legacy is not adeemed.
165. Stock specifically bequeathed lent to third party on condition that it be replaced.
Where stock which has been specifically bequeathed is lent to a third party on condition that it shall
be replaced, and it is replaced accordingly, the legacy is not adeemed.
166. Stock specifically bequeathed sold but replaced, and belonging to testator at his
death. Where stock specifically bequeathed is sold, and an equal quantity of the same stock is
afterwards purchased and belongs to the testator at his death, the legacy is not adeemed.
____
CHAPTER XVII
OF THE PAYMENT OF LIABILITIES IN RESPECT OF THE SUBJECT OF A BEQUEST.
167. Non-liability of executor to exonerate specific legatees.___(1) Where property
specifically bequeathed is subject at the death of the testator to any pledge, lien or incumbrance
created by the testator himself or by any person under whom he claims, then, unless a contrary
intention appears by the will, the legatee, if he accepts the bequest, shall accept it subject to such
pledge or incumbrance, and shall (as between himself and the testator’s estate) be liable to make
good the amount of such pledge or incumbrance.
(2) A contrary intention shall not be inferred from any direction which the will may contain
for the payment of the testator’s debts generally.
Explanation.___ A periodical payment in the nature of land- revenue or in the nature of rent is
not such an incumbrance as is contemplated by this section.
Illustrations
(i) A bequeaths to B the diamond ring given him by C. At A’s death the ring is
held in pawn by D, to whom it has been pledged by A. It is the duty of A’s
executors, if the state of the testator’s assets will allow them, to allow B to
redeem the ring.
(ii) A bequeaths to B a zamindari which at A’s death is subject to a mortgage for
10,000 rupees; and the whole of the principal sum, together with interest to the
amount of 1,000 rupees, is due at A’s death. B, if he accepts the bequest,
accepts it subject to this charge, and is liable, as between himself and A’s
estate, to pay the sum of 11,000 rupees thus due.
Page 78 of 133
168. Completion of testator’s title to things bequeathed to be at cost of his estate. Where
anything is to be done to complete the testator’s title to the thing bequeathed, it is to be done at the
cost of the testator’s estate.
Illustrations
(i) A, having contracted in general terms for the purchase of a piece of land at a
certain price, bequeaths to B, and dies before he has paid the purchase-money.
The purchase-money must be made good out of A’s assets.
(ii) A, having contracted for the purchase of a piece of land for a certain sum of
money, one- half of which is to be paid down and the other half secured by
mortgage of the land, bequeaths it to B, and dies before he has paid or secured
any part of the purchase- money. One- half of the purchase-money must be
paid out of A’s assets.
169. Exoneration of legatee’s immoveable property for which land-revenue or rent
payable periodically. Where there is a bequest of any interest in immovable property in respect of
which payment in the nature of land-revenue or in the nature of rent has to be made periodically, the
estate of the testator shall (as between such estate and the legatee) make good such payments or a
proportion of them, as the case may be, up to the day of his death.
Illustration
A bequeaths to B a house, in respect of which 365 rupees are payable annually by way of
rent. A pays his rent at the usual time, and dies 25 days after. A’s estate will make good 25 rupees in
respect of the rent.
170. Exoneration of specific legatee’s stock in joint-stock company. In the
absence of any direction in the will, where there is a specif ic bequest of stock in a joint-
stock company, if any call or other payment is due from the testator at the time of his
death in respect of the stock, such call or payment shall, as between the testators estate and
the legatee, be borne by the estate; but, if any call or other payment becomes due in respect of such
stock after the testator’s death, the same shall, as between the testator’s estate and the legatee, be
borne by the legatee, if he accepts the bequest.
Illustrations
(i) A bequeaths to B his shares in a certain railway. At A’s death there was due
from him the sum of 100 rupees in respect of each share, being the amount of
a call which had been duly made, and the sum of five rupees in respect of each
share, being the amount of interest which had accrued due in respect of the
call. These payments must be borne by A’s estate.
(ii) A has agreed to take 50 shares in an intended joint stock company, and has
contracted to pay up 100 rupees in respect of each share, which sum must be
paid before his title to the shares can be completed. A bequeaths these shares
to B. The estate of A must make good the payments which were necessary to
complete A’s title.
(iii) A bequeaths to B his shares in a certain railway. B accepts the legacy. After
A’s death, a call is made in respect of the shares. B must pay the call.
Page 79 of 133
(iv) A bequeaths to B his shares in a joint stock company. B accepts the bequest.
Afterwards the affairs of the company are wound up, and each shareholder is
called upon for contribution. The amount of the contribution must be borne by
the legatee.
(v) A is the owner of ten shares in a railway company. At a meeting held during
his lifetime a call is made of fifty rupees per share, payable by three
instalments. A bequeaths his shares to B, and dies between the day fixed for
the payment of the first and the day fixed for the payment of the second
instalment, and without having paid the first instalment. A’s estate must pay
the first instalment, and B, if he accepts the legacy, must pay the remaining
instalments.
______
CHAPTER XVIII
OF BEQUESTS OF THINGS DESCRIBED IN GENERAL TERMS
171. Bequest of thing described in general terms. If there is a bequest of something
described in general terms, the executor must purchase for the legatee what may reasonably be
considered to answer the description.
Illustrations
(i) A bequeaths to B a pair of carriage-horses or a diamond ring. The executor
must provide the legatee with such articles if the state of the assets will allow
it.
(ii) A bequeaths to B “my pair of carriage-horses”. A had no carriage-horses at the
time of his death. The legacy fails.
_______
CHAPTER XIX
OF BEQUESTS OF THE INTEREST OR PRODUCE OF A FUND
172. Bequest of interest or produce of fund. Where the interest or produce of a fund is
bequeathed to any person, and the will affords no indication of an intention that the enjoyment of the
bequest should be of limited duration, the principal, as well as the interest, shall belong to the
legatee.
Illustrations
(i) A bequeaths to B the interest of his 5 per cent. promissory notes of the
1
[Federal Government]. There is no other clause in the will affecting those
securities. B is entitled to A’s 5 per cent. promissory notes of the 1[Federal
Government].
(ii) A bequeaths the interest of his 5-1/2 per cent. promissory notes of the
1
[Federal Government] to B for his life, and after his death to C. B is entitled
to the interest of the notes during his life, and C is entitled to the notes upon
B’s death.
(iii) A bequeaths to B the rents of his lands at X. B is entitled to the lands.
_______
1
Subs, by F.A.O., 1975, Art. 2 and Table, for “Central Government” which had been subs. by A. O., 1937, for “G. of I.”.
Page 80 of 133
CHAPTER XX
OF BEQUESTS OF ANNUITIES
173. Annuity created by will payable for life only unless contrary intention appears by
will. Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a
contrary intention appears by the will, notwithstanding that the annuity is directed to be paid out of
the property generally, or that a sum of money is bequeathed to be invested in the purchase of it.
Illustrations
(i) A bequeaths to B 500 rupees a year. B is entitled during his life to receive the
annual sum of 500 rupees.
(ii) A bequeaths to B the sum of 500 rupees monthly. B is entitled during his life
to receive the sum of 500 rupees every month.
(iii) A bequeaths an annuity of 500 rupees to B for life, and on B’s death to C. B is
entitled to an annuity of 500 rupees during his life. C, if he survives B, is
entitled to an annuity of 500 rupees from B’s death until his own death.
174. Period of vesting where will directs that annuity be provided out of proceeds of
property, or out of property generally, or where money bequeathed to be invested in
purchase of annuity. Where the will directs that an annuity shall be provided for any person out
of the proceeds of property, or out of property generally, or where money is bequeathed to be
invested in the purchase of any annuity for any person, on the testator’s death, the legacy vests in
interest in the legatee, and he is entitled at his option to have an annuity purchased for him or to
receive the money appropriated for that purpose by the will.
Illustrations
(i) A by his will directs that his executors shall, out of his property, purchase an
annuity of 1, 000 rupees for B. B is entitled at his option to have an annuity of
1, 000 rupees for his life purchased for him or to receive such a sum as will be
sufficient for the purchase of such an annuity.
(ii) A bequeaths a fund to B for his life, and directs that after B’s death, it shall be
laid out in the purchase of an annuity for C. B and C survive the testator. C
dies in B’s lifetime. On B’s death the fund belongs to the representative of C.
175. Abatement of annuity. Where an annuity is bequeathed, but the assets of the testator
are not sufficient to pay all the legacies given by the will, the annuity shall abate in the same
proportion as the other pecuniary legacies given by the will.
176. Where gift of annuity and residuary gift, whole annuity to be first satisfied. Where
there is a gift of an annuity and a residuary gift, the whole of the annuity is to be satisfied before any
part of the residue is paid to the residuary legatee, and, if necessary, the capital of the testator’s estate
shall be applied for that purpose.
_____
Page 81 of 133
CHAPTER XXI
OF LEGACIES TO CREDITORS AND PORTIONERS
177. Creditor prima facie entitled to legacy as well as debt. Where a debtor bequeaths a
legacy to his creditor, and it does not appear from the will that the legacy is meant as a satisfaction of
the debt, the creditor shall be entitled to the legacy, as well as to the amount of the debt.
178. Child prima facie entitled to legacy as well as portion. Where a parent, who is under
obligation by contract to provide a portion for a child, fails to do so, and afterwards bequeaths a
legacy to the child, and does not intimate by his will that the legacy is meant as a satisfaction of the
portion, the child shall be entitled to receive the legacy, as well as the portion.
Illustration
A, by articles entered into in contemplation of his marriage with B, covenanted that he would
pay to each of the daughters of the intended marriage a portion of 20, 000 rupees on her marriage.
This covenant having been broken, A bequeaths 20, 000 rupees to each of the married daughters of
himself and B. The legatees are entitled to the benefit of this bequest in addition to their portions.
179. No ademption by subsequent provision for legatee. No bequest shall be wholly or
partially adeemed by a subsequent provision made by settlement or otherwise for the legatee.
Illustrations
(i) A bequeaths 20, 000 rupees to his son B. He afterwards gives to B the sum of 20, 000
rupees. The legacy is not thereby adeemed.
(ii) A bequeaths 40, 000 rupees to B, his orphan niece whom he had brought up from her
infancy. Afterwards, on the occasion of B’s marriage, A settles upon her the sum of 30, 000 rupees.
The legacy is not thereby diminished.
____
CHAPTER XXII
OF ELECTION
180. Circumstances in which election takes place. Where a person, by his will, professes to
dispose of something which he has no right to dispose of, the person to whom the thing belongs shall
elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up
any benefits which may have been provided for him by the will.
181. Devolution of interest relinquished by owner. An interest relinquished in the
circumstances stated in section 180 shall devolve as if it had not been disposed of by the will in
favour of the legatee, subject, nevertheless, to the charge of making good to the disappointed legatee
the amount or value of the gift attempted to be given to him by the will.
182. Testator’s belief as to his ownership immaterial. The provisions of sections 180 and
181 apply whether the testator does or does not believe that which he professes to dispose of by his
will to be his own.
Page 82 of 133
Illustrations
(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a
legacy of 1,000 rupees to C. C has elected to retain his farm of Sultanpur,
which is worth 800 rupees. C forfeits his legacy of 1, 000 rupees, of which 800
rupees goes to B, and the remaining 200 rupees falls into the residuary
bequest, or devolves according to the rules of intestate succession, as the case
may be.
(ii) A bequeaths an estate to B in case B’s elder brother (who is married and has
children) shall leave no issue living at his death. A also bequeaths to C a
jewel, which belongs to B. B must elect to give up the jewel or to lose the
estate.
(iii) A bequeaths to B 1,000 rupees, and to C an estate which will under a
settlement, belong to B if his elder brother (who is married and has children)
shall leave no issue living at his death. B must elect to give up the estate or to
lose the legacy.
(iv) A, a person of the age of 18, domiciled in 1[Pakistan] but owning real property
in England, to which C is heir at law, bequeaths a legacy to C and, subject
thereto, devises and bequeaths to B “all my property whatsoever and
wheresoever”, and dies under 21. The real property in England does not pass
by the will. C may claim his legacy without giving up the real property in
England.
183. Bequest for man’s benefit how regarded for purpose of election. A bequest for a
person’s benefit is, for the purpose of election, the same thing as a bequest made to himself.
Illustration
The farm of Sultanpur Khurd being the property of B, A bequeathed it to C: and bequeathed
another farm called Sultanpur Buzurg to his own executors with a direction that it should be sold and
the proceeds applied in payment of B’s debts. B must elect whether he will abide by the will, or keep
his farm of Sultanpur Khurd in opposition to it.
184. Person deriving benefit indirectly not put to election. A person taking no benefit
directly under a will, but deriving a benefit under it indirectly, is not put to his election.
Illustration
The lands of Sultanpur are settled upon C for life, and after his death upon D, his only child.
A bequeaths the lands of Sultanpur to B, and 1, 000 rupees to C. C dies intestate shortly after the
testator, and without having made any election. D takes out administration to C, and as administrator
elects on behalf of C’s estate to take under the will. In that capacity he receives the legacy of 1, 000
rupees and accounts to B for the rents of the lands of Sultanpur which accrued after the death of the
testator and before the death of C. In his individual character he retains the lands of Sultanpur in
opposition to the will.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”.
Page 83 of 133
185. Person taking in individual capacity under will may in other character elect to take
in opposition. A person who in his individual capacity takes a benefit under a will may, in another
character, elect to take in opposition to the will.
Illustration
The estate of Sultanpur is settled upon A for life, and after his death, upon B. A leaves the
estate of Sultanpur to D, and 2, 000 rupees to B, and 1, 000 rupees to C, who is B’s only child. B dies
intestate, shortly after the testator, without having made an election. C takes out administration to B,
and as administrator elects to keep the estate of Sultanpur in opposition to the will, and to relinquish
the legacy of 2, 000 rupees. C may do this, and yet claim his legacy of 1, 000 rupees under the will.
186. Exception to provisions of last six sections. Notwithstanding anything contained in
sections 180 to 185, where a particular gift is expressed in the will to be in lieu of something
belonging to the legatee, which is also in terms disposed of by the will, then, if the legatee claims
that thing, he must relinquish the particular gift, but he is not bound to relinquish any other benefit
given to him by the will.
Illustration
Under A’s marriage-settlement his wife is entitled, if she survives him, to the enjoyment of
the estate of Sultanpur during her life. A by his will bequeaths to his wife an annuity of 200 rupees
during her life, in lieu of her interest in the estate of Sultanpur, which estate he bequeaths to his son.
He also gives his wife a legacy of 1, 000 rupees. The widow elects to take what she is entitled to
under the settlement. She is bound to relinquish the annuity but not the legacy of 1, 000 rupees.
187. When acceptance of benefit given by will constitutes election to take under will.
Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if
he had knowledge of his right to elect and of those circumstances which would influence the
judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in
another estate called Sultanpur Buzurg to which upon his death his son B will
be absolutely entitled. The will of A gives the estate of Sultanpur Khurd to B,
and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the
estate of Sultanpur Buzurg, allows C to take possession of it, and enters into
possession of the estate of Sultanpur Khurd. B has not confirmed the bequest
of Sultanpur Buzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A
bequeaths Sultanpur to C, and to B the residue of A’s property. B having been
informed by A’s executors that the residue will amount to 5, 000 rupees,
allows C to take possession of Sultanpur. He afterwards discovers that the
residue does not amount to more than 500 rupees. B has not confirmed the
bequest of the estate of Sultanpur to C.
188. Circumstances in which knowledge or waiver is presumed or inferred. ___(1) Such
knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the
Page 84 of 133
legatee has enjoyed for two years the benefits provided for him by the will without doing any act to
express dissent.
(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which
renders it impossible to place the persons interested in the subject- matter of the bequest in the same
condition as if such act had not been done.
Illustration
A bequeaths to B an estate to which C is entitled, and to C a coal mine. C takes possession of
the mine and exhausts it. He has thereby confirmed the bequest of the estate to B.
189. When testator’s representatives may call upon legatee to elect. If the legatee does
not, within one year after the death of the testator, signify to the testator’s representatives his
intention to confirm or to dissent from the will, the representatives shall, upon the expiration of that
period, require him to make his election; and, if he does not comply with such requisition within a
reasonable time after he has received it, he shall be deemed to have elected to confirm the will.
190. Postponement of election in case of disability. In case of disability the election shall
be postponed until the disability ceases, or until the election is made by some competent authority.
____
CHAPTER XXIII
OF GIFTS IN CONTEMPLATION OF DEATH
191. Property transferable by gift made in contemplation of death.___(1) A man may
dispose, by gift made in contemplation of death, of any moveable property which he could dispose of
by will.
(2) A gift is said to be made in contemplation of death where a man, who is ill and expects to
die shortly of his illness, delivers to another the possession of any moveable property to keep as a
gift in case the donor shall die of that illness.
(3) Such a gift may be resumed by the giver; and shall not take effect if he recovers from the
illness during which it was made; nor if he survives the person to whom it was made.
Illustrations
(i) A, being ill, and in expectation of death, delivers to B, to be retained by him in
case of A’s death,―
a watch:
a bond granted by C to A:
a bank-note:
a promissory note of the 1[Federal Government] endorsed in blank:
a bill of exchange endorsed in blank:
certain mortgage-deeds.
A dies of the illness during which he delivered these articles.
B is entitled to___
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government” which had been subs. by A.O., 1937, for “G. of I.”.
Page 85 of 133
the watch:
the debt secured by C’s bond:
the bank- note:
the promissory note of the 1[Federal Government]:
the bill of exchange:
the money secured by the mortgage-deeds.
(ii) A, being ill, and in expectation of death, delivers to B the key of a trunk or the key of
a warehouse in which goods of bulk belonging to A are deposited, with the intention
of giving him the control over the contents of the trunk, or over the deposited goods,
and desires him to keep them in case of A’s death. A dies of the illness during
which he delivered these articles. B is entitled to the trunk and its contents or
to A’s goods of bulk in the warehouse.
(iii) A, being ill, and in expectation of death, puts aside certain articles in separate
parcels and marks upon the parcels respectively the names of B and C. The
parcels are not delivered during the life of A. A dies of the illness during
which he set aside the parcels. B and C are not entitled to the contents of the
parcels.
____
PART VII
Protection of Property of Deceased
192. Person claiming right by succession to property of deceased may apply for relief
against wrongful possession.___ (1) If any person dies leaving property, moveable or immoveable,
any person claiming a right by succession thereto or to any portion thereof, may make application to
the District Judge of the district where any part of the property is found or situate for relief, either
after actual possession has been taken by another person, or when forcible means of seizing
possession are apprehended.
(2) Any agent, relative or near friend, or the Court of Wards in cases within their cognizance,
may, in the event of any minor, or any disqualified or absent person being entitled by succession to
such property as aforesaid, make the like application for relief.
193. Inquiry made by Judge. The District Judge to whom such application is made shall, in
the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks
necessary as to whether there is sufficient ground for believing that the party in possession or taking
forcible means for seizing possession has no lawful title, and that the applicant, or the person on
whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the
ordinary remedy of a suit, and that the application is made bona fide.
194. Procedure.- If the District Judge is satisfied that there is sufficient ground for believing
as aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant
or disturbed possession by publication, and, after the expiration of a reasonable time, shall determine
summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver
possession accordingly:
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government” which had been subs. by A.O., 1937, for “G. of I.”.
Page 86 of 133
Provided that the Judge shall have the power to appoint an officer who shall take an inventory of
effects, and seal or otherwise secure the same, upon being applied to for the purpose, without delay, whether
he shall have concluded the inquiry necessary for summoning the party complained of or not.
195. Appointment of curator pending determination of proceeding. If it further appears
upon such inquiry as aforesaid that danger is to be apprehended of the misappropriation or waste of
the property before the summary proceeding can be determined, and that the delay in obtaining
security from the party in possession or the insufficiency thereof is likely to expose the party out of
possession to considerable risk, provided he is the lawful owner, the District Judge may appoint one
or more curators whose authority shall continue according to the terms of his or their respective
appointments, and in no case beyond the determination of the summary proceeding and the
confirmation or delivery of possession in consequence thereof:
Provided that, in the case of land, the Judge may delegate to the Collector, or to any officer
subordinate to the Collector, the powers of a curator:
Provided, further, that every appointment of a curator in respect of any property shall be duly
published.
196. Powers conferrable on curator. The District Judge may authorise the curator to take
possession of the property either generally, or until security is given by the party in possession, or
until inventories of the property have been made, or for any other purpose necessary for securing the
property from misappropriation or waste by the party in possession:
Provided that it shall be in the discretion of the Judge to allow the party in possession to
continue in such possession on giving security or not, and any continuance in possession shall be
subject to such orders as the Judge may issue touching inventories, or the securing of deeds or other
effects.
197. Prohibition of exercise of certain powers by curators.___ (1) Where a certificate has
been granted under Part X (VII of 1889),1[* * *] or a grant of probate or letters of
administration has been made, a curator appointed under this Part shall not exercise any authority
lawfully belonging to the holder of the certificate or to the executor or administrator.
(2) Payment of debts, etc., to curator. All persons who have paid debts or rents to a curator
authorised by a Court to receive them shall be indemnified, and the curator shall be responsible for
the payment thereof to the person who has obtained the certificate probate or letters of
administration, as the case may be.
198. Curator to give security and may receive remuneration.___(1) The District Judge shall take
from the curator security for the faithful discharge of his trust, and for rendering satisfactory accounts of
the same as hereinafter provided, and may authorise him to receive out of the property such
remuneration, in no case exceeding five per centum on the moveable property and on the annual
profits of the immoveable property, as the District Judge thinks reasonable.
(2) All surplus money realized by the curator shall be paid into Court, and invested in public
securities for the benefit of the persons entitled thereto upon adjudication of the summary
proceeding.
1
The words “or under the Succession Certificate Act, 1889”, omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.
3 and Sch., II.
Page 87 of 133
(3) Security shall be required from the curator with all reasonable despatch, and, where it is
practicable, shall be taken generally to answer all cases for which the person may be afterwards
appointed curator; but no delay in the taking of security shall prevent the Judge from immediately
investing the curator with the powers of his office.
199. Report from Collector where estate includes revenue- paying land.___ (1) Where the
estate of the deceased person consists wholly or in part of land paying revenue to Government, in all
matters regarding the propriety of summoning the party in possession, of appointing a curator, or of
nominating individuals to that appointment, the District Judge shall demand a report from the
Collector, and the Collector shall thereupon furnish the same:
Provided that in cases of urgency the Judge may proceed, in the first instance, without such
report.
(2) The Judge shall not be obliged to act in conformity with any such report, but, in case of
his acting otherwise than according to such report, he shall immediately forward a statement of his
reasons to the High Court, and the High Court, if it is dissatisfied with such reasons, shall direct the
Judge to proceed conformably to the report of the Collector.
200. Institution and defence of suits. The curator shall be subject to all orders of the District
Judge regarding the institution or the defence of suits, and all suits may be instituted or defended in
the name of the curator on behalf of the estate:
Provided that an express authority shall be requisite in the order of the curator’s appointment
or the collection of debts or rents; but such express authority shall enable the curator to give a full
acquittance for any sums of money received by virtue thereof.
201. Allowances to apparent owners pending custody by curator. Pending the custody
of the property by the curator, the District Judge may make such allowances to parties having a
prima facie right thereto as upon a summary investigation of the rights and circumstances of the
parties interested he considers necessary, and may, at his discretion, take security for the repayment
thereof with interest, in the event of the party being found, upon the adjudication of the summary
proceeding, not to be entitled thereto.
202. Accounts to be filed by curator. The curator shall file monthly accounts in abstract,
and shall, on the expiry of each period of three months, if his administration lasts so long, and, upon
giving up the possession of the property, file a detailed account of his administration to the
satisfaction of the District Judge.
203. Inspection of accounts and right of interested party to keep duplicate.___(1) The
accounts of the curator shall be open to the inspection of all parties interested; and it shall be
competent for any such interested party to appoint a separate person to keep a duplicate account of
all receipts and payments by the curator.
(2) If it is found that the accounts of the curator are in arrear, or that they are erroneous or
incomplete, or if the curator does not produce them whenever he is ordered to do so by the District
Judge, he shall be punishable with fine not exceeding one thousand rupees for every such default.
Page 88 of 133
204. Bar to appointment of second curator for same property. If the Judge of any district
has appointed a curator, in respect of the whole of the property of a deceased person, such
appointment shall preclude the Judge of any other district within the same Province from appointing
any other curator, but the appointment of a curator in respect of a portion of the property of the
deceased shall not preclude the appointment within the same Province of another curator in respect
of the residue or any portion thereof:
Provided that no Judge shall appoint a curator or entertain a summary proceeding in respect
of property which is the subject of a summary proceeding previously instituted under this Part before
another Judge;
Provided, further, that if two or more curators are appointed by different Judges for several
parts of an estate, the High Court may make such order as it thinks fit for the appointment of one
curator of the whole property.
205. Limitation of time for application for curator. An application under this Part to the
District Judge must be made within six months of the death of the proprietor whose property is
claimed by right in succession.
206. Bar to enforcement of Part against public settlement or legal directions by
deceased. Nothing in this Part shall be deemed to authorise the contravention of any public act
of settlement or of any legal directions given by a deceased proprietor of any property for the
possession of his property after his decease in the event of minority or otherwise, and, in every
such case, as soon as the Judge having jurisdiction over the property of a deceased person is satisfied
of the existence of such directions, he shall give effect thereto.
207. Court of Wards to be made curator in case of minors having property subject to its
jurisdiction. Nothing in this Part shall be deemed to authorise any disturbance of the possession of a
Court of Wards of any property; and in case a minor, or other disqualified person whose property is
subject to the Court of Wards, is the party on whose behalf application is made under this Part, the
District Judge, if he determines to summon the party in possession and to appoint a curator, shall
invest the Court of Wards with the curatorship of the estate pending the proceeding without taking
security as aforesaid; and if the minor or other disqualified person, upon the adjudication of the
summary proceeding, appears to be entitled to the property, possession shall be delivered to the
Court of Wards.
208. Saving of right to bring suit. Nothing contained in this Part shall be any impediment to
the bringing of a suit either by the party whose application may have been rejected before or after the
summoning of the party in possession, or by the party who may have been evicted from the
possession under this Part.
209. Effect of decision of summary proceeding. The decision of a District Judge in a
summary proceeding under this part shall have no other effect than that of settling the actual
possession; but for this purpose it shall be final, and shall not be subject to any appeal or review.
210. Appointment of public curators. The 1[Provincial Government] may appoint public
curators for any district or number of districts; and the District Judge having jurisdiction shall
nominate such public curators in all cases where the choice of a curator is left discretionary with him
under this Part.
1
Subs. by A. O., 1937, for “L. G.”.
Page 89 of 133
PART VIII
Representative Title to Property of Deceased on Succession
211. Character and property of executor or administrator as such.___ (1) The executor or
administrator, as the case may be, of a deceased person is his legal representative for all purposes,
and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, 1[Muslim] Buddhist, Sikh 2[Jaina, or Parsi], an
exempted person, nothing herein contained shall vest in an executor or administrator any property of
the deceased person which would otherwise have passed by survivorship to some other person.
212. Right to intestate’s property.___(1) No right to any part of the property of a person who
has died intestate can be established in any Court of Justice, unless letters of administration have first
been granted by a Court of competent jurisdiction.
(2) This section shall not apply in the case of the intestacy of a Hindu, 1[Muslim], Buddhist,
Sikh, Jaina 3[.Parsi] or 4[Pakistan Christian].
213. Right as executor or legatee when established.___(1) No right as executor or legatee
can be established in any Court of Justice, unless a Court of competent jurisdiction in 5[Pakistan] has
granted probate of the will under which the right is claimed, or has granted letters of administration
with the will or with a copy of an authenticated copy of the will annexed.
6
[(2) Sub-section (1) shall not apply in the case of wills made by Muslims and Parsis, and
shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are
of the classes specified in clauses (a) and (b) of section 57.]
214. Proof of representative title a condition precedent to recovery through the Courts
of debts from debtors of deceased persons.___ (1) No Court shall___
(a) pass a decree against a debtor of a deceased person for payment of his debt to
a person claiming on succession to be entitled to the effects of the deceased
person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute
against such a debtor a decree or order for the payment of his debt,
except on the production, by the person so claiming, of___
(i) a probate or letters of administration evidencing the grant to him of
administration to the estate of the deceased, or
(ii) a certificate granted under section 31 or section 32 of the
Administrator General’s Act, 1913 (III of 1913), and having the debt
mentioned therein, or
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
2
Subs. by the Succession (Amdt.) Act, 1974 (12 of 1974|), s. 2., for “or Jaina”.
3
Ins. by the Succession (Amdt.) Act, 1974 (12 of 1974), s. 3.
4
Subs. by A. O., 1949, for “Indian Christian”.
5
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch., (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. by A. O., 1949, for “British India”.
6
Subs. by the Succession (Amdt.) Ordinance, 1978 (35 of 1978), s. 2, for sub-section (2), which were previously amended by various enactments.
Page 90 of 133
(iii) a succession certificate granted under Part X and having the debt
specified therein, or
1
[* * * * * * *]
(v) a certificate granted under 2[Sind Regulation No. VIII of 1827] and, if
granted after the first day of May, 1889, having the debt specified
therein.
(2) The word “debt” in sub-section (1) includes any debt except rent, revenue or profits
payable in respect of land used for agricultural purposes.
215. Effect on certificate of subsequent probate or letters of administration.___(1) A grant
of probate or letters of administration in respect of an estate shall be deemed to supersede any
certificate previously granted under Part X 3[Sind Regulation No. VIII of 1827], in respect of any
debts or securities included in the estate.
(2) When at the time of the grant of the probate or letters any suit or other proceeding
instituted by the holder of any such certificate regarding any such debt or security is pending, the
person to whom the grant is made shall, on applying to the Court in which the suit or proceeding is
pending, be entitled to take the place of the holder of the certificate in the suit or proceeding:
Provided that, when any certificate is superseded under this section, all payments made to the
holder of such certificate in ignorance of such supersession shall be held good against claims under
the probate or letters of administration.
216. Grantee of probate or administration alone to sue, etc., until same revoked. After
any grant of probate or letters of administration, no other than the person to whom the same may
have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of
the deceased, throughout the Province in which the same may have been granted, until such probate
or letters of administration has or have been recalled or revoked.
____
PART IX
Probate, Letters of Administration and Administration of Assets of Deceased.
217. Application of Part. Save as otherwise provided by this Act or by any other law for the
time being in force, all grants of probate and letters of administration with the will annexed and the
administration of the assets of the deceased in cases of intestate succession shall be made or carried out,
as the case may be, in accordance with the provisions of this Part.
1
Sub-clause (iv) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981, (27 of 1981), s. 3 and Sch. II.
2
Subs. ibid., for “ Bombay Regulation No. VIII of 1827”.
3
The words “or under the Succession Certificate Act, 1889”, omitted ibid.,
Page 91 of 133
CHAPTER I
OF GRANT OF PROBATE AND LETTERS OF ADMINISTRATION
218. To whom administration may be granted, where deceased is a Hindu, 1[Muslim],
Buddhist/ Sikh, Jaina or exempted any person.___(1) If the deceased has died intestate and was a
Hindu; 1[Muslim], Buddhist, Sikh or Jaina or an exempted person, administration of his estate may
be granted to any person who, according to the rules for the distribution of the estate applicable in
the case of such deceased, would be entitled to the whole or any part of such deceased’s estate.
(2) When several such persons apply for such administration, it shall be in the discretion of
the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased.
219. Where deceased is not a Hindu, 1[Muslim], Buddhist, Sikh, Jaina or exempted
person. If the deceased has died intestate and was not a person belonging to any of the classes
referred to in section 218, those who are connected with him, either by marriage or by consanguinity,
are entitled to obtain letters of administration of his estate and effects in the order and according to
the rules hereinafter stated, namely:___
(a) If the deceased has left a widow, administration shall be granted to the widow,
unless the Court sees cause to exclude her, either on the ground of some
personal disqualification, or because she has no interest in the estate of the
deceased.
Illustrations
(i) The widow is a lunatic or has committed adultery or has been barred
by her marriage settlement of all interest in her husband’s estate. There
is cause for excluding her from the administration.
(ii) The widow has married again since the decease of her husband. This is
not good cause for her exclusion.
(b) If the Judge thinks proper, he may associate any person or persons with the
widow in the administration who would be entitled solely to the administration
if there were no widow.
(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall
commit the administration to the person or persons who would be beneficially
entitled to the estate according to the rules for the distribution of an
intestate’s estate:
Provided that, when the mother of the deceased is one of the class of persons so entitled, she
shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the deceased are equally
entitled to administration.
(e) The husband surviving his wife has the same right of administration of her
estate as the widow has in respect of the estate of her husband.
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
Page 92 of 133
(f) When there is no person connected with the deceased by marriage or
consanguinity who is entitled to letters of administration and willing to act,
they may be granted to a creditor.
(g) Where the deceased has left property in 1[Pakistan], letters of administration
shall be granted according to the foregoing rules, notwithstanding that he had
his domicile in a country in which the law relating to testate and intestate
succession differs from the law of 1[Pakistan].
220. Effect of letters of administration. Letters of administration entitle the administrator to
all rights belonging to the intestate as effectually as if the administration had been granted at the
moment after his death.
221. Acts not validated by administration. Letters of administration do not render valid any
intermediate acts of the administrator tending to the diminution or damage of the intestate’s estate.
222. Probate only to appointed executor.___(1) Probate shall be granted only to an executor
appointed by the will.
(2) The appointment may be expressed or by necessary implication.
Illustrations
(i) A wills that C be his executor if B will not. B is appointed executor by
implication.
(ii)
A gives a legacy to B and several legacies to other persons, among the rest to
his daughter-in-law C, and adds “but should the within-named C be not living
I do constitute and appoint B my whole and sole executrix.” C is appointed
executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew
residuary legatee, and in another codicil are these words,___ “I appoint my
nephew my residuary legatee to discharge all lawful demands against my will
and codicils signed of different dates.” The nephew is appointed an executor
by implication.
223. Persons to whom probate cannot be granted. Probate cannot be granted to any person
who is a minor or is of unsound mind 2[nor to any association of individuals unless it is a company
which satisfies the conditions prescribed by rules to be made by the 3[Provincial Government] in this
behalf].
224. Grant of probate to several executors simultaneously or at different times. When
several executors are appointed, probate may be granted to them all simultaneously or at different
times.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960.), s. 3 and 2 nd Sch., (with effect from the 14th October, 1955), for “ the
Provinces and the Capital of the Federation” which had been subs. by A. O., 1949, for “British India”.
2
Added by the Indian Succession (Amdt.) Act, 1931 (17 of 1931), s. 2. The words “nor, unless the deceased was a Hindu, Muhammadan, Buddhist,
Sikh or Jaina or an exempted person, to a married woman without the consent of her husbnand” which originally occurred at the end of this section had
been rep. by the Indian Succession (Amdt.) Act, 1927 (18 of 1927), s. 2.
3
Subs. by A. O., 1937, for “G. G. in C.”.
Page 93 of 133
Illustration
A is an executor of B’s will by express appointment and C an executor of it by implication. Probate
may be granted to A and C at the same time or to A first and then to C, or to C first and then to A.
225. Separate probate of codicil discovered after grant of probate.___ (1) If a codicil is
discovered after the grant of probate, a separate probate of that codicil may be granted to the
executor, if it in no way repeals the appointment of executors made by the will.
(2) If different executors are appointed by the codicil, the probate of the will shall be revoked,
and a new probate granted of the will and the codicil together.
226. Accrual of representation to surviving executor. When probate has been granted to
several executors, and one of them dies, the entire representation of the testator accrues to the
surviving executor or executors.
227. Effect of probate. Probate of a will when granted establishes the will from the death of
the testator, and renders valid all intermediate acts of the executor as such.
228. Administration, with copy annexed, of authenticated copy of will proved
abroad. When a will has been proved and deposited in a Court of competent jurisdiction
situated beyond the limits of the Province, whether within or beyond the limits of 1[Pakistan],
and a properly authenticated copy of the will is produced, letters of administration may be
granted with a copy of such copy annexed.
229. Grant of administration where executor has not renounced. When a person
appointed an executor has not renounced the executorship, letters of administration shall not be
granted to any other person until a citation has been issued, calling upon the executor to accept or
renounce his executorship:
Provided that, when one or more of several executors have proved a will, the Court may, on
the death of the survivor of those who have proved, grant letters of administration without citing
those who have not proved.
230. Form and effect of renunciation of executorship. The renunciation may be made
orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made
shall preclude him from ever thereafter applying for probate of the will appointing him executor.
231. Procedure where executor renounces or fails to accept within time limited. If an
executor renounces, or fails to accept an executorship within the time limited for the acceptance or
refusal thereof, the will may be proved and letters of administration, with a copy of the will annexed,
may be granted to the person who would be entitled to administration in case of intestacy.
232. Grant of administration to universal or residuary legatees. When___
(a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to
act, or who has died before the testator or before he has proved the will, or
1
Subs. by A. O., 1961, Art. 2 and Sch., for “His Majesty’s dominions” (with effect from the 23rd March, 1956).
Page 94 of 133
(c) the executor dies after having proved the will, but before he has administered
all the estate of the deceased,
an universal or a residuary legatee may be admitted to prove the will, and letters of administration
with the will annexed may be granted to him of the whole estate, or of so much thereof as may be
unadministered.
233. Right to administration of representative of deceased residuary legatee. When a
residuary legatee who has a beneficial interest survives the testator, but dies before the estate has
been fully administered, his representative has the same right to administration with the will annexed
as such residuary legatee.
234. Grant of administration where no executor nor residuary legatee nor
representative of such legatee. When there is no executor and no residuary legatee or representative
of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons
who would be entitled to the administration of the estate of the deceased if he had died intestate, or
any other legatee having a beneficial interest, or a creditor, may be admitted to prove the will, and
letters of administration may be granted to him or them accordingly.
235. Citation before grant of administration to legatee other than universal or
residuary. Letters of administration with the will annexed shall not be granted to any legatee other
than an universal or a residuary legatee, until a citation has been issued and published in the manner
hereinafter mentioned, calling on the next- of- kin to accept or refuse letters of administration.
236. To whom administration may not be granted. Letters of administration cannot be
granted to any person who is a minor or is of unsound mind, 1[nor to any association of individuals
unless it is a company which satisfies the conditions prescribed by rules to be made by the
2
[Provincial Government] in this behalf].
____
CHAPTER II
OF LIMITED GRANTS
Grants limited in duration
237. Probate of copy or draft of lost will. When a will has been lost or mislaid since the
testator’s death, or has been destroyed by wrong or accident and not by any act of the testator, and a
copy or the draft of the will has been preserved, probate may be granted of such copy or draft,
limited until the original or a properly authenticated copy of it is produced.
238. Probate of contents of lost or destroyed will. When a will has been lost or destroyed
and no copy has been made nor the draft preserved, probate may be granted of its contents if they can
be established by evidence.
239. Probate of copy where original exists. When the will is in the possession of a person
residing out of the Province in which application for probate is made, who has refused or neglected
to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of
the estate that probate should be granted without waiting for the arrival of the original, probate may
be granted of the copy so transmitted, limited until the will or an authenticated copy of it is produced.
2
Added by the Indian Succession (Amdt.) Act, 1931 (17 of 1931), s. 2. The words “nor, unless the deceased was a Hindu, Muhammadan, Buddhist,
Sikh or Jaina or an exempted person, to a married woman without the consent of her husbnand” which originally occurred at the end of this section had
been rep. by the Indian Succession (Amdt.) Act, 1927 (18 of 1927), s. 2.
2
Subs. by A.O., 1937, for “G. G. in C.”.
Page 95 of 133
240. Administration until will produced. Where no will of the deceased is forthcoming, but
there is reason to believe that there is a will in existence, letters of administration may be granted,
limited until the will or an authenticated copy of it is produced.
Grants for the use and benefit of others having right
241. Administration, with will annexed, to attorney of absent executor. When any
executor is absent from the Province in which application is made, and there is no executor within
the Province willing to act, letters of administration, with the will annexed, may be granted to the
attorney or agent of the absent executor; for the use and benefit of his principal, limited until he shall
obtain probate or letters of administration granted to himself.
242. Administration, with will annexed, to attorney of absent person who, if present,
would be entitled to administer. When any person to whom, if present, letters of administration,
with the will annexed, might be granted, is absent from the Province, letters of administration, with
the will annexed, may be granted to his attorney or agent, limited as mentioned in section 241.
243. Administration to attorney of absent person entitled to administer in case of
intestacy. When a person entitled to administration in case of intestacy is absent from the Province,
and no person equally entitled is willing to act, letters of administration may be granted to the
attorney or agent of the absent person, limited as mentioned in section 241.
244. Administration during minority of sole executor or residuary legatee. When a minor
is sole executor or sole residuary legatee, letters of administration, with the will annexed, may be
granted to the legal guardian of such minor or to such other person as the Court may think fit until
the minor has attained his majority at which period, and not before, probate of the will shall be
granted to him.
245. Administration during minority of several executors or residuary legatees. When
there are two or more minor executors and no executor who has attained majority, or two or more
residuary legatees and no residuary legatee who has attained majority, the grant shall be limited until
one of them shall have attained his majority.
246. Administration for use and benefit of lunatic or minor. If a sole executor or a sole
universal or residuary legatee, or a person who would be solely entitled to the estate of the intestate
according to the rule for the distribution of intestates’ estates applicable in the case of the deceased,
is a minor or lunatic, letters of administration, with or without the will annexed, as the case may be,
shall be granted to the person to whom the care of his estate has been committed by competent
authority, or, if there is no such person, to such other person as the Court may think fit to appoint, for
the use and benefit of the minor or lunatic until he attains majority or becomes of sound mind, as the
case may be.
247. Administration pendente lite. Pending any suit touching the validity of the will of a
deceased person or for obtaining or revoking any probate or any grant of letters of administration, the
Court may appoint an administrator of the estate of such deceased person, who shall have all the
rights and powers of a general administrator, other than the right of distributing such estate, and
every such administrator shall be subject to the immediate control of the Court and shall act under its
direction.
Page 96 of 133
Grants for special purposes
248. Probate limited to purpose specified in will. If an executor is appointed for any
limited purpose specified in the will, the probate shall be limited to that purpose, and if he should
appoint an attorney or agent to take administration on his behalf, the letters of administration, with
the will annexed, shall be limited accordingly.
249. Administration, with will annexed, limited to particular purpose. If an executor
appointed generally gives an authority to an attorney or agent to prove a will on his behalf, and the
authority is limited to a particular purpose, the letters of administration, with the will annexed, shall
be limited accordingly.
250. Administration limited to property in which person has beneficial interest. Where a
person dies, leaving property of which he was the sole or surviving trustee, or in which he had no
beneficial interest on his own account, and leaves no general representative, or one who is unable or
unwilling to act as such, letters of administration, limited to such property, may be granted to the
beneficiary, or to some other person on his behalf.
251. Administration limited to suit. When it is necessary that the representative of a person
deceased be made a party to a pending suit, and the executor or person entitled to administration is unable
or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited
for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be
commenced in the same or in any other Court between the parties, or any other parties, touching the
matters at issue in the said cause or suit, and until a final decree shall be made therein and carried
into complete execution.
252. Administration limited to purpose of becoming party to suit to be brought against
administrator. If, at the expiration of twelve months from the date of any probate or letters of
administration, the executor or administrator to whom the same has been granted is absent from the
Province within which the Court which has granted the probate or letters of administration exercises
jurisdiction, the Court may grant, to any person whom it may think fit, letters of administration
limited to the purpose of becoming and being made a party to a suit to be brought against the
executor or administrator, and carrying the decree which may be made therein into effect.
253. Administration limited to collection and preservation of deceased’s property. In any
case in which it appears necessary for preserving the property of a deceased person, the Court within
whose jurisdiction any of the property is situate may grant to any person, whom such Court may
think fit, letters of administration limited to the collection and preservation of the property of the
deceased and to the giving of discharges for debts due to his estate, subject to the directions of the
Court.
254. Appointment as administrator, of person other than one who, in ordinary
circumstances, would be entitled to administration.___(1) When a person has died intestate, or
leaving a will of which there is no executor willing and competent to act or where the executor is, at
the time of the death of such person, resident out of the Province, and it appears to the Court to be
necessary or convenient to appoint some person to administer the estate or any part thereof, other
than the person who, in ordinary circumstances, would be entitled to a grant of administration, the
Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the
estate and probability that it will be properly administered, appoint such person as it thinks fit to be
administrator.
(2) In every such case letters of administration may be limited or not as the Court thinks fit.
Page 97 of 133
Grants with exception
255. Probate or administration, with will annexed, subject to exception. Whenever the
nature of the case requires that an exception be made, probate of a will, or letters of administration
with the will annexed, shall be granted subject to such exception.
256. Administration with exception. Whenever the nature of the case requires that an
exception be made, letters of administration shall be granted subject to such exception.
Grants of the rest
257. Probate or administration of rest. Whenever a grant with exception of probate, or of
letters of administration with or without the will annexed, has been made, the person entitled to
probate or administration of the remainder of the deceased’s estate may take a grant of probate or
letters of administration, as the case may be, of the rest of the deceased’s estate.
Grant of effects unadministered
258. Grant of effects unadministered. If an executor to whom probate has been granted has
died, leaving a part of the testator’s estate unadministered, a new representative may be appointed for
the purpose of administering such part of the estate.
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.
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 it 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
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.
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.
263. Revocation or annulment for just cause. The grant of probate or letters of
administration may be revoked or annulled for just cause.
Page 98 of 133
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 forget 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 (intestate) 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
OF THE PRACTICE IN GRANTING AND REVOKING PROBATES AND LETTERS OF
ADMINISTRATION.
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.
Page 99 of 133
(2) Except in cases to which section 57 applies, no Court 1[* * *], 2[* * *],
3
shall, where the deceased is a Hindu, [Muslim], Buddhist, Sikh or Jaina or an exempted person,
receive applications for probate or letters of administration until the 4[Provincial Government] has,
by a notification in the 5[official Gazette], authorised it so to do.
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 4[Provincial Government].
(2) Persons so appointed shall be called “District Delegates”.
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.
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 Pakistan Penal Code (XLV of 1860), 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.
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 (V of 1908) .
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
1
The words “in any local area beyond the limits of the towns of Calcutta, Madras and Bombay”, omitted by A. O., 1949.
2
The words “and the province of Burma” omitted by A. O., 1937.
3
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
4
Subs. ibid., for “L. G.”.
5
Subs. ibid., for “local official Gazette”.
Page 100 of 133
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, 1[Muslim], Buddhist, Sikh or
Jaina or an exempted person, nor shall it apply to any part of the property of 2[a Pakistan Christian]
who has died intestate.
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.
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.
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.
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 Province 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 Province does not exceed ten thousand rupees,
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”
2
The original words “an Indian Chiristian” have been amended by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s. 4 and 3 rd
Sch. and A. O., 1949, to read as above.
Page 101 of 133
shall, unless otherwise directed by the grant, have like effect throughout 1[Pakistan]
2
[* * * * * * *]
3
[The said proviso shall also apply in 4[Pakistan] after the separation of Pakistan from India
to probates and letters of administration granted before the date of the separation, or on or after that
date in proceedings pending at that date in any of the territories which on that date were comprised in
India.]
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 Province,
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.
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.
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,
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces of Pakistan” which had been subs. by A. O., 1949, for “the whole of British India”.
2
Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch. II. This paragraph was previously amended by
various enactments.
3
Added by A. O., 1949.
4
Subs. by Ordinance 21 of 1960. s. 3 and 2nd Sch., for “the Provinces of Pakistan” (with effect from the 14th October, 1955).
Page 102 of 133
(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 Province the petition shall further state the amount of
such assets in each Province and the District Judges within whose jurisdiction such assets are situate.
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.”
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 deceased’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 Province, the petition shall further state the amount of
such assets in each Province and the District Judges within whose jurisdiction such assets are situate.
Page 103 of 133
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
[Pakistan], 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.
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”.
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 I was present and saw the said testator affix his signature (or mark)
thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last
will and testament in my presence).”
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 Pakistan Penal Code (XLV of 1860).
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.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. by A. O. 1949, for “British India”.
Page 104 of 133
(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 Province, 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.
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.
(4). Form of caveat. The caveat shall be made as nearly as circumstances admit in the form
set forth in Schedule V.
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.
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
recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.
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.
Page 105 of 133
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.
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.
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.
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, 1[Muslim], 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.
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.
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.
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 2[Provincial Government] shall make regulations for the preservation and inspection
of the wills so filed.
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
2
Subs. by F.A. O., 1937, for “L. G.”.
Page 106 of 133
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 (V 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.
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.
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.
298. Power to refuse letters of administration. Notwithstanding anything hereinbefore
contained it shall, where the deceased was a 1[Muslim], 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.
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 (V of 1908), applicable to appeals.
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 2[* * *], 3[* * *], shall, where the deceased is a Hindu,
1
[Muslim], Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters
of administration until the 4[Provincial Government] has, by a notification in the 5[official Gazette],
authorised it so to do.
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.
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”
2
The words beyond the limits of the towns of Calcutta, Madras and Bombay” omitted by A. O., 1949.
3
The words “and the province of Burma” omitted by A. O. 1937.
4
Subs. ibid., for “ L. G.”
5
Subs. ibid., for “local official Gazette”.
Page 107 of 133
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
OF EXECUTORS OF THEIR OWN WRONG
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.
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
OF THE POWERS OF AN EXECUTOR OR ADMINISTRATOR
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.
Page 108 of 133
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 Pakistan Penal Code (XLV 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.
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 sale 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, 1[Muslim], Buddhist, Sikh or Jaina or an exempted person, the
general power conferred by sub-section (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.
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
Page 109 of 133
(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 sub-
section (2) or of sub- section (1) and clauses (ii) and (iii) of sub- section (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 sub- section (3) not having been made thereon or attached
thereto, nor 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.
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.
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 (III of
1913).
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.
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.
Page 110 of 133
(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.
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.
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.
314. Powers of administrator during minority. An administrator during minority has all
the powers of an ordinary administrator.
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
OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR
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.
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 Pakistan Penal Code (XLV 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.
Page 111 of 133
318. Inventory to include property in any part of Pakistan in certain cases. In all cases
where a grant has been made of probate or letters of administration intended to have effect
throughout 1[Pakistan], the executor or administrator shall include in the inventory of the effects of
the deceased all his moveable and immoveable property situate in 2[Pakistan], and the value of such
property situate in each province 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 2[Pakistan].
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.
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.
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.
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).
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.
324. Application of moveable property to payment of debts where domicile not in
Pakistan.___(1) If the domicile of the deceased was not in 1[Pakistan], the application of his
moveable property to the payment of his debts is to be regulated by the law of 1[Pakistan].
(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, 3[Muslim], Buddhist, Sikh
or Jaina or an exempted person.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955)for “the Provinces
of Pakistan” which had been subs. by A. O., 1949, for “the whole of British India”.
2
Subs. by Ordinance 21 of 1960, s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the Provinces and the Capital of the Federation” which
had been subs. A. O., 1949, for “British India”.
Page 112 of 133
3
Subs. by F.A.O., 1975, Art 2 and Table for “Muhammadan”.
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.
325. Debts to be paid before legacies. Debts of every description must be paid before any
legacy.
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.
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.
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.
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.
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.
Page 113 of 133
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
OF ASSENT TO A LEGACY BY EXECUTOR OR ADMINISTRATOR
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 1[National Bank of Pakistan].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 2[Quetta] in the tenancy of B. C
is not entitled to receive the rents without the assent of the executor or
administrator.
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.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch., for “Imperial Bank of India” (with effect from the 14th
October, 1955).
2
Subs. by Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch., II for “Dacca” which was previously amended by Ord.
21 of 1960, s. 3 and 2nd Sch., for “Calcutta” (with effect from the 14th October, 1955)
Page 114 of 133
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.
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.
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.
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.
____
Page 115 of 133
CHAPTER IX
OF THE PAYMENT AND APPORTIONMENT OF ANNUITIES
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.
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.
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
OF THE INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES
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.
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.
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.
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.
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
Page 116 of 133
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, 1[Muslim], Buddhist, Sikh or
Jaina or an exempted person.
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.
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,1[Muslim], Buddhist, Sikh or Jaina or an exempted person.
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.
______
CHAPTER XI
OF THE PRODUCE AND INTEREST OF LEGACIES
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.
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”.
Page 117 of 133
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 accrues in respect of them between
the testator’s death and A’s completing 18, form part of the residue.
350. Residuary legatee’s title to produce of residuary fund. The legatee under a general
residuary bequest is entitled to the produce of the 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.
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.
Page 118 of 133
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.
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, 1[Muslim], Buddhist, Sikh or Jaina or an exempted person, in which
case it shall be six per cent per annum.
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.
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
OF THE REFUNDING OF LEGACIES
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.
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.
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.
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.
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:
1
Subs. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”
Page 119 of 133
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.
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.
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.
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.
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.
365. Refunding to be without interest. The refunding shall in all cases be without interest.
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.
367. Transfer of assets from Pakistan, to executor or administrator in country of
domicile for distribution. Where a person not having his domicile in 1[Pakistan] has died leaving
assets both in 1[ Pakistan] 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[Pakistan] 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[Pakistan], 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[Pakistan] 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.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October), for “the Provinces and
the Capital of the Federation” which had been subs. by A.O., 1949, for “British India”.
Page 120 of 133
CHAPTER XIII
OF THE LIABILITY OF AN EXECUTOR OR ADMINISTRATOR FOR DEVASTATION
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.
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
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 1 [Pakistan
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 2[Federal
Government] or of a 3[Provincial Government];
1
Subs. by A. O., 1949, for “Indian Christian”.
*
Section 212 and 2013 do not apply to muslims.,
2
Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government” which was previously amended by A. O., 1937, for “G. of I.”.
3
Subs. ibid., for “L.G.”.
Page 121 of 133
(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[Provincial Government] may, by notification in
the 3[official Gazette], declare to be a security for the purposes of this Part.
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 the 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.
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 (V 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 Pakistan Penal Code (XLV of 1860).
4
[(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.]
1
Ins. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956).
2
Subs. by A.O., 1937 for “G. G. in C.”.
3
Subs. ibid., for “Gazette of India”.
4
Sub-section (3) ins. by the Indian Succession (Amdt.) Act, 1928 (14 of 1928), s. 2.
Page 122 of 133
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.
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.
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
Page 123 of 133
instead of to the Judge of the Court, and to recover, as trustee for all persons interested, such amount
as may be recoverable thereunder.
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.
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.
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.
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, (VII of 1970), 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.
380. Local extent of certificate. A certificate under this Part shall have effect throughout
1
[Pakistan].
2
[* * * * * * *]
3 4
[ [It] shall also apply in 5[Pakistan] after the separation of Pakistan from India to certificates granted
before the date of the separation, or on or after that date in proceedings pending at that date in any of
the territories which on that date were compromised in India.]
1
Subs., by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2 nd Sch. (with effect from the 14th October, 1955), for “the
Provinces of Pakistan” which had been subs. by A.O., 1949, for “the whole of British India”.
2
Omitted by the Federal Laws (Revision and Declaration) Ordinance 1981 (27 of 1981), s.3, Sch. II. This paragraph was previously amended by
various enactments.
3
Added by A.O., 1949.
4
Subs. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s. 4 and 3 rd Sch. for “The said proviso”.
5
Subs. by Ordinance 21 of 1960, s. 3 and 2nd Sch. for “the Provinces of Pakistan” (with effect from the 14th October, 1955).
Page 124 of 133
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.
382. Effect of certificate granted or extended by Pakistan representative in Foreign
State. Where a certificate in the form, as nearly as circumstances admit, of Schedule VIII has been
granted 1[* * *], to a resident within a Foreign State by the 2[Pakistan] representative
accredited to that State, or where a certificate so granted has been extended in such form by 3[ such
4 * *
[ ] representative], the certificate shall, when stamped in accordance with the provisions of the
Court-fees Act, 1870 (VII of 1870), with respect to certificates under this Part, have the same effect
in 5[Pakistan] as a certificate granted or extended under this Part.
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.
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 (V of 1908).
1
Certain words omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Sch., II, which was previously ins. by
A.O., 1949.
2
Subs. ibid., for “British”.
3
Subs. ibid., for “such representative”.
4
The words “Judge or” omitted by Ord. 27 of 1981. s. 3 and Sch., II.
5
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for “the
Provinces and the Capital of the Federation” which had been subs. by A. O., 1949, for “British India”.
Page 125 of 133
(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, (V of
1908), 1908 ,as applied by section 141 of that Code, an order of a District Judge under this Part shall
be final.
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.
386. Validation of certain payments made in good faith to holder of invalid certificate.
Where a certificate under this Part has been super-seded 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.
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.
388. Investiture of inferior Courts with jurisdiction of District Court for purposes of
this Act.___(1) The 1[Provincial Government] may, by notification in the 2[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, (V of 1908) , as applied by
section 141 of that Code, be final.
1
Subs. by A.O., 1937, for “L.G.”.
2
Subs. ibid., for “local official Gazette”
Page 126 of 133
(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.
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.
390. Provisions with respect to certificates under Bombay Regulation VIII of 1827.
Notwithstanding anything in 1[Sind 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.
PART XI
Miscellaneous
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 (III of 1913).
392. [Repeals.] Rep. by the Repealing Act, 1927 (XII of 1927 ), s. 2 and Sch.
1
Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Sch., II, for “Bombay Regulation No. VIII of 1827”.
Page 127 of 133
SCHEDULE I
(See section 28)
TABLE OF CONSANGUINITY
Great
Grand-
Father’s
Father
4
Great Great Great
Grandfather Uncle
3 5
Grand Great
Father Uncle
2 4
Father Uncle Great
Uncle’s son
1 3 5
The Person Brother Cousin
6 german Second
whose
relatives are Cousin
to be 4
reckoned
2 4 6
Son Nephew Son of the
Cousin
gernman
1 3 5
Grandson.
Son of the Grandson
Nephew or of the
Brother’s Cousin
2 Grandson. german
Great
Grandson.
Page 128 of 133
1
[SCHEDULE II
PART I
(See section 54)
(1) Father and mother.
(2) Brothers and sisters (other than uterine brothers and sisters) and lineal descendants of
such of them as have predeceased the intestate.
(3) Paternal grandfather and paternal grandmother.
(4) Children of the paternal grandfather and the lineal descendants of such of them as have
predeceased the intestate.
(5) Paternal grandfather’s father and mother.
(6) Paternal grandfather’s father’s 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 uterine brothers and sisters) and lineal descendants of
such of them as shall have predeceased the intestate.
(3) Paternal grandfather and paternal grandmother.
(4) Children of the paternal grandfather and the lineal descendants of such of them as have
predeceased the intestate.
(5) Paternal grandfather’s father and mother.
(6) Paternal grandfather’s father’s children and the lineal descendants of such of them as have
predeceased the intestate.
(7) Uterine brothers and sisters and the lineal descendants of such of them as have predeceased the
intestate.
(8) Maternal grandfather and maternal grandmother.
(9) Children of the maternal grandfather and the lineal descendants of such of them as have predeceased
the intestate.
(10) Widows of brothers or half-brothers.
(11) Paternal grandfather’s son’s widow.
(12) Maternal grandfather’s son’s widow.
1
Subs. by the Indian Succession (Amdt.) Act, 1939 (17 of 1939), s. 3, for the original Schedule II.
Page 129 of 133
(13) Widowers of deceased lineal descendants of the intestate who have not married again
before the death of the intestate.
(14) Maternal grandfather’s father and mother.
(15) Children of the maternal grandfather’s father and lineal descendants of such of them as
have predeceased the intestate.
(16) Children of the paternal grandmother and the lineal descendants of such of them as have
predeceased the intestate.
(17) Paternal grandmother’s father and mother.
(18) Children of the paternal grandmother’s father and the lineal descendants of such of them
as have predeceased the intestate.]
_________
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 Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s. 14.
Page 130 of 133
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 , deceased, 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[Pakistan].
_____
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
(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
(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.
1
Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2 nd Sch. (with effect from the 14th October, 1955) for “the
Provinces of Pakistan “which had been subs. by A. O., 1949, for “the whole of British India”.
Page 131 of 133
____
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 Succession Act, 1925 in respect of the following debts and
securities, namely:―
Debts
Amount of debt, including Description and date
1 interest, on date of application of instrument, if any,
Serial No. Number of debtor.
for certificate. by which the debt is
secured.
Securities
DESCRIPTION
Market-value of
Distinguishing Name, title or Amount or par
security on date
Serial No. number or letter of class of value of
of application
security. security. security.
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.
1
Sic. Should be “Name”.
Page 132 of 133
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
Description and date
Amount of debt, including
of instrument, if any,
Serial No. Number of debtor. interest, on date of application
by which the debt is
for extension.
secured.
Securities
DESCRIPTION
Market-value of
Distinguishing Name, title or Amount or par
security on date
Serial No. number or letter of class of value of
of application
security. security. security.
for extension.
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 (XII of 1927), s. 2 and Sch.
13359639 Date: 11-11-2024
Page 133 of 133
Source: Pakistan Code, Ministry of Law and Justice (pakistancode.gov.pk). Text on this page is reproduced verbatim from the official PDF and is provided for reference only. For the authoritative version, always consult the source document or a current reported edition.
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