Bequest to person not in existence at testator’s death subject to prior bequest
Section 113 of the Indian Succession Act, 1925 deals with 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. The Act came into force on 30 Sep 1925.
Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
Illustrations
(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest son is a bequest to a person not in existence at the testator's death. It is not 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.
Section 113, The Indian Succession Act, 1925 (Act 39 of 1925).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Referred to by 4
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Bajrang Factory LTD vs University of Calcutta
Court's Decision & Legal Precedent
Where a will contains apparently conflicting clauses that can be reconciled by giving full effect to every word used by the testator, such construction should be accepted instead of one cutting down the clear meaning of words. In construing a will, the court must ascertain the testator's dominant intention from the entire instrument read as a whole, including any codicils. A bequest to an unborn person is void under Section 113 only if it constitutes an actual bequest; a mere expression of desire or enabling clause does not constitute such a bequest. When a codicil confirms and amends a will, it brings the will down to the date of the codicil, and the testator's intention as expressed in both documents must be given effect. Upon the failure of a prior bequest due to non-occurrence of contingencies, a subsequent bequest takes effect under Section 129 of the Indian Succession Act, provided the prior bequest is valid.
On this section: Provision regarding void bequests to unborn persons; court examined whether Clause 7 violated this section
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… According to him, under the will, Yellamma has been given a right and therefore the sale by Yellamma is valid. Further, according to him, Yellamma was having a right and interest and that right and interest has become absolute by advent of the Act. The third point submitted by him was that under Sections 112 and 113 of the Indian Succession Act, the adverse possession is void because on the date of Sale Yellamma was unmarried and the question of giving the property to her does not arises. 6. So far as the point regarding right of Yellamma is concerned, on reading of the will, I find that only right and interest has been …
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… case is squarely covered by the provisions of Section 105 of the Indian Succession Act, 1925, which is applicable to the situation where the legatee dies before the testator/testatrix. He further contended that though in the suit for partition filed by the appellants, the appellants had relied upon the provisions of Section 113 of the Indian Succession Act, 1925, there can be no estoppel against the law, and on the assumption that there can be no estoppel against the law, where an erroneous finding of law is given by the Trial Court, relying upon the assumption of law drawn by the plaintiff, it is within the purview of the Appellate Court …
Questions about Section 113
What have the courts held on Section 113 of the Indian Succession Act?
Bajrang Factory LTD vs University of Calcutta (18 May 2007) is the leading judgment on this section among those set out below: Provision regarding void bequests to unborn persons; court examined whether Clause 7 violated this section.
How do I find court cases under Section 113 of the Indian Succession Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Succession Act 113, section 113 Succession Act, section 113 of the Indian Succession Act. People searching for it also type section 113 indian succession act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 1 reported judgment on this section is set out on this page, beginning with Bajrang Factory LTD vs University of Calcutta (18 May 2007).
What should I read with Section 113 of the Indian Succession Act, and has it changed?
4 other provisions in this corpus refer back to it.
When did Section 113 of the Indian Succession Act come into force?
Section 113 of the Indian Succession Act, cited as Succession Act 113, came into force on 30 Sep 1925, having been enacted on 30 Sep 1925. It is in force as at the date shown on this page.
Other sections of this Act
- 120. Date of vesting when legacy contingent upon specified uncertain event712 words
- 111. Survivorship in case of bequest to described class652 words
- 142. Specific legacy defined646 words
- 101. Rules of construction where will purports to make two bequests to same person620 words
- 114. Rule against perpetuity469 words
- 119. Date of vesting of legacy when payment or possession postponed444 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.