The Doctrine of Lapse: General Principle
A bequest under a Will is, in essence, a gift that is intended to take effect only if the legatee is alive to receive it. If the person named to receive a legacy in a will does not survive when the testator dies, the gift cannot take effect in his favour but it would normally “lapse“. This is provided as the general rule in Section 105 of the Indian Succession Act, 1925 (“the Act”), which applies to all testators other than Muslims.
What the Section 105 States
Section 105(1) of the Act provides that if the legatee does not survive the testator, the legacy cannot take effect and lapses, forming part of the residue of the testator’s property — unless the Will itself shows that the testator intended it to go to some other, substituted person.
The effect of lapse is that the property does not pass to the legal heirs of the deceased legatee. Instead, it falls into the residue of the estate and is distributed under the residuary clause of the Will, if any; and if there is no residuary clause (or the lapsed legacy is itself the residue), it devolves in accordance with the general law of succession applicable to the testator.
The Exception Under Section 109: Bequest to a Child
Section 109 of the Act provides that where a bequest has been made to a child or other lineal descendant of the testator, and that legatee dies during the lifetime of the testator, but a lineal descendant of that legatee survives the testator, the bequest does not lapse. Instead, it takes effect as if the death of the legatee had occurred immediately after the death of the testator — unless a contrary intention appears from the Will.
In substance, Section 109 treats the predeceased child/descendant as though he or she had briefly survived the testator and then died, so that the gift vests in that person’s estate for a moment and then devolves onward, through him or her, to his or her own surviving lineal descendant(s) — rather than failing altogether and returning to the testator’s general estate.
Conditions that Come Under Section 109
For Section 109 to apply, three conditions must be satisfied cumulatively:
- The legatee must be a child or other lineal descendant of the testator (the word “lineal descendant” is not confined to sons; it includes daughters and further descendants in the direct line, both male and female);
- That legatee must have died in the lifetime of the testator (i.e., predeceased the testator); and
- The predeceased legatee must have left a lineal descendant of his or her own who survives the testator.
If any one of these three conditions is absent — for instance, if the predeceased legatee left no surviving descendant, or was not a child/descendant of the testator but some other relative or a stranger — the general rule of lapse under Section 105 continues to apply, and the gift falls into the residue rather than passing onward.
Illustration
Illustration: A testatrix bequeaths a property to her daughter, D. D predeceases the testatrix, but D is survived by her own child, X, who is alive at the testatrix’s death.
- Under the general rule (Section 105 alone), the gift to D would lapse on D’s death and fall into the residue of the testatrix’s estate, bypassing X entirely.
- Under Section 109, because D was the testatrix’s own child and X (D’s lineal descendant) survives the testatrix, the gift does not lapse. It takes effect as though D had died immediately after the testatrix — so the gift passes through D’s estate and ultimately devolves upon X, in accordance with the rules of succession applicable to D’s own estate — provided the Will does not show a contrary intention.
Practical Significance
The practical importance of the distinction lies in who ultimately benefits: under Section 105 alone, a lapsed gift benefits the residuary legatees or the testator’s general heirs — persons who may have no particular connection to the deceased legatee. Under Section 109, the gift is preserved within the testator’s direct bloodline and passes to the deceased legatee’s own descendant, which is presumed to better reflect the testator’s underlying testamentary intention.
Establishing the applicability of Section 109 in a given case therefore requires clear proof of
- the relationship of the original legatee to the testator as a child/lineal descendant,
- the fact and date of that legatee’s death during the testator’s lifetime, and
- the survival of that legatee’s own lineal descendant at the date of the testator’s death — ordinarily through death certificates, birth/relationship records, and other documentary proof, since the benefit of the exception will not be presumed and must be established on the facts.
