LAPSE OF LEGACY

SUBMITTED BY:
SOORYA PRADEEP(712) AND SRUTHI ANIL(713)
6
th
Semester, Nuals.

CONTENTS
SECTION 105.Pg 3-6
SECTION 106.Pg 7-9
SECTION 107.Pg 9
SECTION 108.Pg 10
SECTION 109.Pg 11
SECTION 110.Pg 12
BIBLIOGRAPHYPg 13










LAPSE: INTRODUCTION
The term lapse is applied to the failure of testamentary gift owing to the death of the
legatee before the death of the testator either before or after making of the will. In order
to entitle the legatee to his legacy he must survive the testator, otherwise the legacy
cannot take effect. The testator is not restricted in making his will to the legatees in
existence at the date of the will. A legatee may not be born at the date of the will but he
must be in existence when the testator dies.
This stands embodied in Section 105, which reads hence:
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.
(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.


In S.J.Lakshmi Bai v. Pothana Apparao
1
it was held that this section does not say or
imply that the testator must have expressly envisaged the possibility of lapse in
consequence of the legates dying during the lifetime of the testator and must have
made a provision for that contingency. The section is only an affirmation of the exclusive
right of the legatee for her share vis-a-vis the legatees under the will. It is not an
expression against lapse when the legatee predeceased him.

CIRCUMSTANCES THAT BRING ABOUT LAPSE:
The only event mentioned in section 105 is the death of the legatee in the lifetime of the
testator. The legatee must have had a beneficial interest in order that this doctrine
operates. As a rule, a devisee or legatee must survive the testator in order that he or his
estate may have the benefit of the gift and a confirmation by codicil of a gift in a will to a
legatee who has died since the date of the will, does prevent a lapse.
On predecease of beneficiary to the testator, bequest lapses.
2

On refusal of legacy by the beneficiary, bequest lapses and intestate succession
operates.
3

Under the will of a testator who dies on the commencement of the Administration of
Justice Act 1982, in the absence of a contrary intention in the will, a devise or bequest
to a child or remote descendant of the testator does not lapse if the intended beneficiary
dies before the testator, leaving an issue, but takes effect as a devise or bequest to the
issue living at the testators death.
Even when the legacy is given to A and his executors, administrators and assigns, if the
legatee A dies before the testator, the legacy lapses.
4
When the circumstances make it
uncertain whether the testator or the beneficiary died first, the legacy will lapse
5
.
In order to entitle the representatives of the legatee to receive the legacy, it must be
proved that he survived the testator, and the onus of proof will be on the
representatives. Not only a legacy but also a bequest to the debtor of the debt due from
him will lapse like any other legacy, if the debtor does not survive the testator.
The doctrine of lapse applied to contingent legacies. In the case of contingent legacy it
will lapse on the death of the legatee before the testator whether the contingency does

1
(1969) 2 SCC 91: AIR 1969 SC 1355
2
F.G.P. Ltd v Sleh Hooseini Doctor. (2009) 10SCC 223
3
Mukesh Kumar Gupta v. Smt. Prabha Vaithiyanath, ors.
4
Elliott v. Davenport(1705) 1 P Wms 83
5
Agha Mir Ahmed Shah v. Mudassir Shah. (1944) 2 Mad LJ 354.
or does not happen, and the giftover will take effect
6
. It also applies to conditional
legacies, e.g, if a legacy is to a woman as long as she remains unmarried and she
marries in the lifetime of the testator, the legacy will lapse.
Lapse also applies to powers exercised by will. The appointee must survive the donee
of the power in order to take, but the interest of the persons taking in default of
appointment does not fail by the death of the donee of the power before testator.
7


Unless it appears by the will that the testator intended that it should go to some
other person:. In order to prevent a lapse the testator must do two things: he must in
clear words exclude the lapse and he must clearly indicate who is take in case the
legatee should die in his lifetime. A mere declaration that the legacy shall not lapse is
not sufficient to prevent lapse. But where bequest is to A or his heirs, or to A or his
issue the word or is construed as substitutional so as to prevent as lapse.
In the following cases the legacy will not lapse:
a) If there is an express intention to the contrary, e/\.g. where it is clear that in the
vent of the legatee predeceasing the testator, an alternative bequest is intended
to be substituted as unders.96. The doctrine of lapse does not apply, even
though the legatees predeceased the testator when the legacy is given with the
intention of discharging a moral obligation, whether legally binding or not, which
is recognized by the testator and is existing at his death.
b) In case of legacy to a legatee for life with remainder to another legatee, if the
tenant for life dies befoe the testator \, the remainder takes effect upon the death
of the testator. So, if a legacy be given to A on his completeing the eighteenth
year with a limitation over to B, IF A should before completing the eighteenth
year and A die sin the lifetime of testator under the prescribed age, the legacy
over to B does not lapse will take effect. But the rule is different when A dies in
the lifetime of the testator ut after completing his eighteenth year. In such a case
every part of the bequest lapses, i.e. the legacy to A lapses and the legacy also
does not take effect.
c) If a legacy is given to two persons jointly and one dies before the test the other
takes the whole.(s.106) The doctrine of survivorship prevents lapse, but not if the
gift is to persons as tenants-in-common.(s.107)
d) In the absence of a contrary intention in the will, a bequest to a child or other
lineal descendant of the testator does not lapse if the child of other lineal
descendant dies before the testator.(s.109)

6
Willing v Paine (1731) 3 P Wms 113
7
Hardwick v. Thurston(128) 4 Russ 380.
e) Where the bequest is to a trustee for another and the trustee dies before the
testator, the bequest does not lapse.(s.110)
f) Where the bequest is to a class.(s.111)

Section 21 of the Hindu Succession Act acts a proviso to sub-s(2) of s.105 of the
Succession Act in cases governed by the Hindu Succession Act. Consequently, in case
of commorientes, that is to say, of persons who perish at the same time in consequence
of the same calamity, it is for the party disputing the statutory presumption under s.21 to
prove by defined and warranted conclusion to the contrary that the elder survived the
younger and rebut the presumption. Section 21 applies both to testamentary and
intestate succession.
If the will contains no residuary bequest, the property comprised in the lapsed legacies
will devolve upon the testators statutory next-of-kin. If a specific demonstrative or
pecuniary legacy lapses, the property therein comprised passes under the testators
residuary bequest and if there is no residuary bequest, the property comprised in the
lapsed legacies will devolve upon the testators statutory next-of-kin.
Effect of lapse:
Unless a contrary intention appears in the will, a lapsed legacy will form part of the
residue of the testators property and shall be included in the residuary bequest. The
residue referred to in this section corresponds to the residue referred to in s.25 of the
English Wills Act, 1837, and means the general universal residue. But if the will contains
no residuary clauses, the lapsed legacy will go to the heirs of the testator as if he had
died intestate. (ss 107-108).
Bequest of properties for two purposes is not a joint bequest. In the absence of
allocation of the amounts to be utilized for the two different purposes, it must be
presumed that the fund was to be utilized in equal moieties for the two purposes. Failure
of one of the purposes will result in the moiety of the amount devised fall into the
residue.
8

No lapse if beneficiary in a mutual will dies after the death of one testator:
It is the death of the first testator to die without revoking his own will which renders the
will of the survivor irrevocable in equity. Hence, a legatee to the mutual wills, who
survives the first testator but predeceases the second, does lose his legacy on the
ground of lapse.

8
S..JhansiLaxmi Bai v. P.Apparao, AIR 1969 SC 1355[1970] 1 SCR 28.

SECTION 106: Legacy does not lapse if one or two joint legatees 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:
SCOPE Section 106 deals with a bequest to persons as joint tenants. The essential
characteristics of a joint tenancy are:
1) Unity of possession;
2) Unity of interest;
3) Unity of title; and
4) Unity of the time of commencement of title.
A tenancy-in-common has only unity of possession.
9

Joint tenancy Where a legacy is given to several persons concurrently, questions
arises whether these persons take as joint tenants or as tenants-in-common. This will
depend on the context of the will. A simple legacy to A and B will prima facie be to the
as joint tenants so that if A dies before the testator, B will take the whole legacy.
Although the section speaks of a legacy to two persons, the same rule applies if the
bequest is to several persons, and the share of anyone that dies will not lapse but will
go to the survivor.
In Barnes v Allen, there was a devise of residue to the testators wife and if she dies
without issue to the testators two brothers or if one of them should be dead to the
survivor. Both the brothers died in the lifetime of the wife. It was held that the legacy
was to the two brothers as joint tenants and went to the representatives of the survivor.
This case was followed in Jairam v Kuverbai.
10

Again, although in this section it is stated that if the legacy is to two persons jointly and
one of them dies, the survivor takes the whole, the same rule applies if one of the
legatees is incapable of taking by reason of his having attested the will or otherwise, the
other who is incapable of taking the will takes the whole. This case was followed and
the rule laid down applied, in Nandi Singh v Sita Ram.
11
The general tendency of the
authorities seems to be lean against joint tenancy in the construction of the wills. But if
the will does not in any way indicate an intention to create a tenancy-in-common the
presumption will be in favour of joint tenancy.
12


9
Adm-General v Money, 15 Mad 448,469.
10
(1885) ILR 9 Bom 491.
11
(1889) ILR 16 Cal 677)PC)
12
Alankara v. Santhiagu (1964) 1 Mad LJ 258
Section 106 is applicable when legacy is given to two persons jointly. Where a testator
executed a will bequeathing property to two legatees, s.106 has n application as joint
tenancy cannot be from the recitals in the will. When a testator executed a will
bequeathing certain property to her two daughters and one of the daughters
predeceased the testator leaving her heirs, the legacy in her favour on the death of the
predeceased daughter could not be said to have lapsed, if her legal heirs survive the
testator.
13

It is generally held that if the grant is to persons who are incapable of forming a joint
Hindu family in India, the donees takes the property as tenant-in-common.

Legacy does not lapse if one or two joint legatees dies:
Under normal circumstances, if the bequest is in favour of two persons, it is presumed
that they take the property as tenants in common. But if there are distinct words to the
effect that the testator intended that there shall be a joint tenancy by them, of course the
legatees will take the property as joint tenants. This was held in Dakshayan v Bala
Krishnan Nair
14
.

Christians Christians are governed by this Act and in the matter of constitution of the
will of a Christian if the bequest is made simply to two persons then the principles of
English law as propounded in this section they could take as joint tenants and on the
death of one, the survivor would take the whole property. In case of Christians, a joint
tenancy is presumed rather than the tenancy in common.

Joint tenancy as applicable to Hindus:
Although this section applies to Hindus, in construing the wills of Hindus the rule laid
down in this section should be applied with great care. The trend of the decisions lay
down the flowing propositions viz which property is given without specification of the
individual interests to persons who are members of a joint Hindu Family, it does not
necessarily follow that they take as joint tenants.
15
If the bequest is to persons who
constitute such a family, the prima facie view is that they take severally and that those
who argue in favor of joint tenants have to show some clear foundation for it in terms of
the will. If on the other hand the bequest is to persons who are incapable of forming a

13
K.VKrishna Veni v K.K.Rajagopal AIR 1990 Ker 337: 1990 KLT 23.
14
1995 KLT 267: 1995 KLJ 226.
15
Kishori v Mudra, 33 AII 665
Hindu joint family they generally take as tenants in common.
16
The same rule applies to
a gift to the Hindu deities without specification of shares and they will take in equal
shares. Harris CJ, observes in this case that even if the Succession Act created a joint
tenancy such tenancy would not be created by a Hindu will. Section 106 merely
provides or what is to happen if one or two persons who were jointly named legatees
dies before the testator. This section in no way creates a joint tenancy. The reference in
s.106 to two persons jointly means a bequest to a plurality of persons and not just to
two persons in the arithmetical sense. Section 106 is not a rule of construction but a
provision for devolution. Though joint tenancy is unknown to Hindu Law, it is open to a
Hindu Testator to make a joint bequest in favor of two or more legatees.
17


SECTION 107
Effect of words showing testators intention to give distinct shares: if a legacy is
given to legatees in words which show that the testator intended to give them the
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 testators property
This section lays down the rule that in the case of a bequest to two or more persons as
tenants in common, if one of the legatee dies before the testator ,his share will not go to
the survivor as in the case of joint tenancy but will fall into the residue if there is a
residuary clause in the will. If there is no such residuary clause or where, the request is
to two or more persons as residuary legatees then the share of the person who dies
before the testator will go as indisposed and will be distributed as on intestacy. There is
however one exception to this rule under section 111 of the Indian Succession Act
This section favours tenancy- in- common against joint tenancy.
Distinction between a joint tenancy and tenancy-in-common
In joint tenancy there is a unity of possession, unity of interest, unity of title and unity of
the time of such commencement of such title. Between a joint tenancy and a tenancy-in-
common the only similarity that exists is the unity of possession. Except that, a tenant-
in-common is to his undivided share in the position of the owner of that share. A
tenancy-in-common may also be created by the severance of joint tenancy, as for
instance, by alienation by one of the joint tenants.
18


16
Yathirajulu v Mukunthu, (1905) ILR 28 Mad 363.
17
Sinna Raj Pillai v. Ramayee Ammal, AIR 1969 Mad 96.
18
Jogeshwar vs Ram chandra
Where a Hindu testator makes a bequest to persons constituting of a joint Hindu family,
the view is that they take severally and that those who argue in favour of joint tenancy
have to show some clear foundation for it in the terms of will. If the bequest is to
persons who are incapable of forming a joint Hindu family, the inference is stronger that
they take as tenants-in-common

Tenancy in common with survivorship
A rule was established in the case of Cripps vs Wolcott
19
which said that there is a gift to
a number of persons and the survivors and survivors of them, in default of any
expressed intention of the testator prima facie refer to the period of distribution.
SECTION 108
When lapsed share goes as indisposed of: where a share which lapses is a part
of the general residue bequeathed by the will, that share shall go as indisposed
of.
Under Section 103,a legacy that lapses will form a part of the residue and will go to the
residuary legatee. This section comes into operation when the residue itself lapses by
the death of the residuary legatee before the testator or in any other manner. Where the
residue is indisposed of or lapses, it will go as on intestacy and be divided amongst the
next-of-kin of the deceased and all the next-of-kin will share in spite of any one being
expressly excluded by the will. If the residue that lapses is a particular residue, it will fall
into the general residue. When there are several residuary legatees and the residue is
given to them as tenants-in-common the share of any one, who dies in the testators
lifetime, will lapse and will not accrue in the augmentation of the remaining parts as a
residue of a residue but will devolve as indisposed of.
If the residue is indisposed of, it must be divided amongst all the next-of-kin of the
testator as on intestacy, notwithstanding the fact that the testator has by his will directed
that one of them shall take no share in his property. In England however the rule is that
where the testator in his will makes a declaration excluding one or some only of the
next-of-kin in clear language, it would be held valid.
This section is based on the English rule in Skrymsher vs NorthCote
20
which was
followed in Vedabala Debi vs The official Trustee of Bengal
21
where residue was given
on trust which failed on the ground of uncertainty and it was held that there was a

19
4 Mad 15
20
1 Swan 566
21
62 Cal 1062:39 CWN 1154
resulting trust of the residue to the heirs of the testators as on intestacy. Modern
decisions however lay down a different rule. They state that if there is in the will an
intention to the contrary, that intention must be given effect
SECTION 109
When bequest to testators child or lineal descendant does not lapse on his death
in testators 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 the
contrary intention appears by the will
This section is an exception to the doctrine of lapse. To prevent the lapse under this
section, three conditions must be fulfilled.
The bequest must be to any child or other lineal descendant of the testator.
The child or lineal descendant dies in the lifetime of the testator but any lineal
descendant of his survives the testator .The person entitled to the bequest must
be ascertained as to the date of the death of the child and not as at the date of
the death of the testator
There should be no contrary intention in the will.
The words unless a contrary intention appears by the will must be construed to mean
that there must be clear ,unambiguous and unequivocal intention by the testator in the
will itself before a bequest in favour of a lineal descendant, should he die before the
testator can be defeated. The expression means that there must be clear, unambiguous
intention by the testator in the will itself before the bequest in the favour of a child or
lineal descendant can be defeated.
The word child used in this section does not include an illegitimate child but includes
an adopted child in case of Hindus
This section corresponds to s 33 of the English wills Act 1837, which is now substituted
by the s 19 of the Administration of the Justice Act,1982
To prevent lapse under this section, it is not necessary that the lineal descendant who
is alive at the death of the testator, should be the same lineal descendant who was alive
at the death of the legatee. It is sufficient that any lineal descendant is alive.
Expression of contrary intention
Since the section carves out an exception in the general rule of lapse, the contrary
intention to restore the applicability of the rule cannot be lightly inferred. The contrary
intention to avoid lapse of legacy shall have to be gathered in the terms of the wills
itself. There should be an express statement which is necessary to exclude the
operation of the section and it cannot be inferred from circumstances developing after
the death of the testatrix.
In Krishna veni vs Rajagopal
22
,the Kerala High Court was dealing with a case where
the statement in the will was that none other than the legatees shall take her share. It
was contended that to mean that it was an affirmation of an exclusive right of the
legatee for her share vis-a-vis other legatees under the will and it was not an expression
of any contra intention on the part of the testator that the bequest should lapse if the
legatee predeceased him. Section 109 being an exception to the general rule ,the intent
of the section appears to be to prevent a lapse unless the testator had indeed
expressed a clear contention that the legacy should lapse on the death of the legatee
before the succession opened

SECTION 110
Bequest to A for benefit of B does not lapse by As death: Where a bequest is
made to one person for the benefit of another ,the legacy does not lapse by the
death ,in the testators lifetime, of the person to whom the bequest is made.
This section is another exception to the doctrine of lapse. If the property is bequeathed
to A in trust for B, the beneficial interest of B will not lapse by the death of the trustee A
in the lifetime of the testator.
The testator may give a beneficiary such rights to secure his legacy as this law allows.
Thus a legacy may be charged upon a specific land and in addition, the legatee may be
given a right of entry upon the land to enforce the payment of legacy. I f therefore, there
is a gift to A charged with a sum payable to B,the legacy to B does not lapse by the
death of A, before the testator.





22
(1998) 1 KLT 353,406
BIBLIOGRAPHY
Indian succession Act by Paruck,10
th
edition 2011