Sections 104 and 105 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Two short sections of the Act settle a question that arises in almost every estate: what happens to a legacy when the person named to receive it is no longer alive. Section 104 deals with a legacy given in general terms, and section 105 states when a legacy lapses.
As per the text of the Act consulted, a legacy given in general terms, with no time for payment specified, gives the legatee a vested interest from the day of the testator's death, and if the legatee dies without receiving it, it passes to his representatives. But under section 105, if the legatee does not survive the testator the legacy lapses and forms part of the residue, unless the will shows that the testator meant it to go to someone else. Those who claim through a dead legatee must prove that he survived the testator.
Section 104: a general legacy vests on the testator's death
Section 104 reads, in substance: 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.
Three points follow from the words:
- The section is about a legacy "in general terms". A gift of a named sum or share without a date for payment is the plain case.
- The interest vests from the day the testator dies, not from the day the executor pays.
- If the legatee dies later, before he has been paid, the legacy does not return to the estate. It passes to the legatee's own representatives.
Section 104 should be read with section 105, because section 104 assumes that the legatee was alive at the testator's death. A person who died earlier never had a vested interest to pass on. If you need the two sections applied to a particular will, you can ask for a legal consultation before anything is paid out.
Section 105(1): the legacy lapses
Section 105(1) provides that 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". The rule has one exception printed in the same sentence: unless it appears by the will that the testator intended that it should go to some other person.
So the rule has two steps. First, a legatee who dies before the testator takes nothing. Second, what he would have taken falls into the residue and goes to the residuary legatee, if there is one. For who the residuary legatee is and how one is constituted, see our article on the residuary legatee under sections 102 and 103. The next article in this series, on sections 106 to 110, covers the cases where the Act says a legacy does not lapse.
Section 105(2): proof of survival
Sub-section (2) places a burden. To entitle the representatives of the legatee to receive the legacy, "it must be proved that he survived the testator". The family of a legatee who died soon after the testator cannot simply assume survival. The text asks for proof. Illustration (vi) shows the effect: if the testator and the legatee perished in the same shipwreck and there is no evidence which died first, the legacy lapses.
The Act's illustrations to section 105
Six illustrations are printed. They are the Act's own, with old rupee sums, and are not current facts.
| No. | Facts in the illustration | Result |
|---|---|---|
| (i) | The testator bequeaths 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 is dead when the will is made | The legacy to A and his children lapses |
| (iii) | A legacy is given to A, and if he dies before the testator, to B. A dies before the testator | The legacy goes to B |
| (iv) | A sum is bequeathed to A for life, and after his death to B. A dies in the testator's lifetime and B survives the testator | The bequest to B takes effect |
| (v) | A sum is bequeathed to A on his completing his eighteenth year, and if he should die before that, to B. A completes his eighteenth year and dies in the testator's lifetime | The legacy to A lapses and the bequest to B does not take effect |
| (vi) | The testator and the legatee perish in the same shipwreck, with no evidence of who died first | The legacy lapses |
Illustrations (iii) and (iv) show the exception at work: the will itself names another person to take. Illustration (v) shows the opposite. B is named only to take if A dies before completing the eighteenth year; A did complete it, so the condition for B never arose, and the legacy to A fell because A did not outlive the testator.
Examples with invented names
A general legacy and a late payment. Sunita's will leaves 2 lakh rupees to her nephew Dev, with no date for payment. Dev outlives Sunita by two months and dies before the executor pays him. Under section 104 Dev had a vested interest from Sunita's death, so the legacy passes to Dev's representatives.
The legatee who died first. Harish's will leaves a plot to his friend Imran. Imran dies a year before Harish. The will names no one else. Under section 105(1) the legacy lapses and forms part of the residue of Harish's property. If Harish's will gives the residue to his daughter, she takes the plot with the rest of the residue.
A named substitute. In his will, Prakash leaves a shop to Lata, "and if she dies before me, to her sister Meera". Lata dies first. As in illustration (iii), the will shows an intention that Meera should take, and the shop goes to Meera.
What to do when drafting
If you are drafting a will, section 105 is a good reason to state who takes if a named legatee dies first. A short substitute clause avoids lapse and leaves nothing to inference. If you are an executor and a legatee has died, keep records that show the order of the deaths, because sub-section (2) puts the burden of proof on the representatives. Our guide to executor duties explains the executor's tasks in wider terms.
Does it apply to every will?
Schedule III of the Act lists sections 104 and 105 among the sections of Part VI that section 57 applies to the wills and codicils of Hindus, Buddhists, Sikhs and Jainas described there. Restriction 5 in the Schedule names section 105 among the sections where "son", "sons", "child" and "children" are deemed to include an adopted child, and "grandchildren" the children of a child whether adopted or natural-born. Section 58 as printed says Part VI does not apply to the testamentary succession to the property of any Muhammadan. Read the application sections in our article on wills of Hindus, Buddhists, Sikhs and Jainas.
The print consulted shows amendments only up to the Indian Succession (Amendment) Act, 2002 (26 of 2002); check for later amendments before relying on these sections.
Need help with a lapsed legacy?
If a legatee has died and you are not sure who now takes, or you are drafting a will that must cope with that possibility, a legal consultation can help you read the clause against sections 104 and 105 before any distribution is made.
Key takeaways
- A general legacy with no payment date vests in the legatee from the testator's death (section 104).
- A legatee who dies before the testator takes nothing; the legacy lapses into the residue (section 105(1)).
- The will can send the legacy to another person, and then it does not lapse into the residue.
- Representatives of a legatee must prove he survived the testator (section 105(2)).
- If no one can show who died first, the legacy lapses (illustration (vi)).
Read next
- Section 101: two bequests to the same person, cumulative or substituted
- Sections 106 to 110: when a legacy does not lapse
- Residuary legatee under sections 102 and 103
- Executor duties under a will
Disclaimer: Based on an unofficial print of the Indian Succession Act, 1925 showing amendments up to the Indian Succession (Amendment) Act, 2002 (26 of 2002), as consulted on 2 October 2026. It explains the words of the statute only; later amendments, State amendments and rules, court fees and the way courts apply these sections should be checked. This article is general information, not legal advice; check the official text before acting.