Section 113 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.
Section 113 is a single sentence with four illustrations. It decides whether a will can give a person who is not yet born something less than everything the testator has left after an earlier interest ends.
As per the text of the Act consulted, 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 is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. A bequest to an unborn person of the entire remaining interest is valid; a bequest of anything less, such as a life interest, is void.
What the section says
The section reads: 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.
Break the sentence into its working parts:
- A person not in existence at the testator's death. This is the same idea as in section 112, covered in our article on bequests to a person not in existence.
- A prior bequest in the will. The unborn person comes after somebody else, who takes first, for example for life.
- The whole of the remaining interest. The testator has a bundle of rights in the thing. The prior bequest takes some of them. What is left after that is the "remaining interest". If the unborn person is to take all of what is left, the bequest stands. If he is to take only part of it, it is void.
The test is therefore about size, not about who the unborn person is. Whether the property will be tied up for too long is a separate question, answered by section 114, covered in our article on the rule against perpetuity in wills.
If you are working through a will with a chain of interests, a legal consultation helps to lay the chain out one link at a time and check each against these sections.
The Act's four illustrations
These use old forms of expression and the age of eighteen; they are the Act's own illustrations.
| No. | Facts | Result |
|---|---|---|
| (i) | Property to A for life, then to A's eldest son for life, then to the latter's eldest son. At the testator's death A has no son | The bequest to A's eldest son for his life is void: he is not in existence, and it is not the whole remaining interest |
| (ii) | A fund to A for life, then to his daughters. A survives the testator and has daughters, some not in existence at the testator's death | The bequest to the daughters comprises the whole remaining interest and is valid |
| (iii) | A fund to A for life, then to his daughters, with a direction that a daughter who marries under eighteen has her portion settled on herself for life, divisible among her children after her death. A has no daughters at the testator's death, and daughters born afterwards survive him | The direction to settle is void: it turns the absolute bequest into a life interest for a person not in existence |
| (iv) | A sum to B for life, then on B's death settled on his daughters so that each has a life interest, divisible among her children afterwards. B has no daughter living at the testator's death | The direction to settle on the daughters is void: it is a life interest only for persons not yet born |
Reading illustrations (i) and (ii) together
Both begin with a life interest. In (ii) the daughters take the fund outright after A: nothing is held back, so they take "the whole interest that remains". In (i) the first son takes only for life and the property goes on to his own eldest son, so his bequest is a smaller interest than the whole. The only difference between valid and void is the size of the gift to the unborn person.
Illustrations (iii) and (iv)
In (iii) the bequest to the daughters is absolute, which would be good under (ii). The direction to settle then reduces the interest of a daughter who marries under eighteen to a life interest. Because the daughters are not in existence at the testator's death, that reduced interest is not the whole remaining interest, and the direction to settle is void. In (iv) the only gift to the daughters is the direction to settle, and it too gives a life interest only.
Examples with invented names
Valid. Sudha's will leaves her farm to her brother Vijay for life, and after his death to "his daughters". Vijay has no daughter when Sudha dies. The gift to the daughters is the whole remaining interest after Vijay's life interest, so as in illustration (ii) it is valid.
Void. Another will leaves a fund to Karan for life, then to Karan's future daughters "for their lives", and after them to their children. Karan has no daughter at the testator's death. The daughters would take only a life interest, which is less than the whole remaining interest, so under section 113 the bequest to them is void. What follows for the gift after them is dealt with in section 116, covered in our article on bequests partly void and bequests after a void bequest.
How this section compares with the Transfer of Property Act
The Transfer of Property Act, 1882 has a parallel rule for transfers between living persons. See our article on sections 13 and 14 of the Transfer of Property Act, 1882 for that Act, and check the current law for the corresponding provision there. The two Acts are separate and the text of this article is about the Indian Succession Act only.
Where section 113 applies
Schedule III lists section 113 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 113 among the sections in which "son", "sons", "child" and "children" are deemed to include an adopted child. Restriction 2 provides that nothing in the listed sections authorises 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. Section 58 as printed says Part VI does not apply to the testamentary succession to the property of any Muhammadan. See our article on wills of Hindus, Buddhists, Sikhs and Jainas and Schedule III.
The print consulted shows amendments only up to the Indian Succession (Amendment) Act, 2002 (26 of 2002); check for later amendments. One State amendment is printed in the copy at section 115 (for Gujarat and Maharashtra), and it is explained with that section.
A practical drafting point
A testator who wants to benefit grandchildren not yet born usually does it in a chain of life interests. This section is a reminder that every link after the first must be tested: who is alive at the death, and how much does each person take. A will that gives the unborn person the whole of what remains after the living person's interest avoids the problem raised here.
Need help with a will that benefits unborn grandchildren?
Chains of life interests are easy to write and hard to check. If a will you hold, or are drafting, leaves property to children not yet born, you can start with a legal consultation so each link is tested before the will is signed or acted on.
Key takeaways
- Section 113 applies where an unborn person takes after a prior bequest in the same will.
- The later bequest is void unless it comprises the whole of the testator's remaining interest.
- A life interest for an unborn person is less than the whole remaining interest and is void.
- A direction to settle a portion on unborn persons for life is void for the same reason.
- Section 114, on perpetuity, is a separate test.
Read next
- Section 112: bequest to a person not in existence at the testator's death
- Section 114: rule against perpetuity in wills
- Sections 115 and 116: bequest to a class partly void and bequest after a void bequest
- Sections 13 and 14 of the Transfer of Property Act, 1882
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.