Sections 129-130 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.
When a will gives the same thing to two people, one after the other, the second gift is called a bequest over. Sections 129 and 130 answer a drafting question that arises again and again: if the first gift fails, does the second take effect, even if the first failed in a way the testator did not have in mind?
As per the text of the Act consulted, where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest fails, the second takes effect upon that failure, even though the failure may not have occurred in the manner contemplated by the testator (s.129). But where the will shows an intention that the second bequest shall take effect only if the first fails in a particular manner, the second does not take effect unless the first fails in that particular manner (s.130).
Section 129: the second bequest takes the place of the first
Section 129 reads, in substance: where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.
The practical meaning is that the second legatee is a substitute for the first. The testator may have named a particular way in which the first gift might fail, such as the legatee's children all dying young. If the gift fails in some other way, the second gift still takes effect. The Act's two illustrations:
- A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect.
- A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A's death, and, if he should neglect to do so, to C. B dies in the testator's lifetime. The bequest to C takes effect.
In illustration 1 the testator was thinking of children who die under 18; no child was ever born, and that way of failing was never contemplated. In illustration 2 the testator was thinking of B neglecting to execute a document; B instead died before the testator. In both cases the prior bequest failed, and the second takes effect.
If you are reading a will with an alternate legatee and the first has died or refused, you can ask for a drafting review of the clause before the estate is distributed.
Section 130: when the will ties the second bequest to a particular failure
Section 130 is the counterweight. Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.
The Act's illustration: A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The bequest to B does not take effect.
The will there names one way of failing: the wife dying in A's lifetime. It cannot be shown that she did, so the gift over is not triggered. The result matches section 105(2), which requires proof that a legatee survived the testator before his representatives can claim; read our article on lapse under sections 104 and 105.
Putting the two sections side by side
| Point | Section 129 | Section 130 |
|---|---|---|
| Starting point | A bequest to one person and a bequest of the same thing to another | The will shows the second bequest is to take effect only if the first fails in a particular manner |
| Result | The second takes effect on any failure of the first | The second takes effect only if the first fails in that particular manner |
| Key question | Did the prior bequest fail? | Does the will show the intention to confine the gift over to one kind of failure? |
| The Act's illustrations | Children surviving, all die under 18, none ever born; B dies before the testator | Wife dies in A's lifetime; they perish together and the order of deaths cannot be proved |
Which section applies is a question of the wording of the will. Section 129 is the general rule. Section 130 is for the will that shows an intention to limit the gift over. Words such as "if my wife dies in my lifetime" are the kind of wording that signals a particular manner.
Examples with invented names
General substitute. Bhavna's will says: "I give my farm to my son Dinesh, and if he does not take it, to my daughter Esha." Dinesh predeceases Bhavna. Dinesh's gift fails, and Esha takes under section 129. The will did not need to list every way the first gift might fail.
Particular manner. Another will says: "I give my shop to my brother Farid, and if he dies in my lifetime, to my cousin Gopal." Farid survives the testator but renounces the gift. Whether Gopal takes depends on whether the will shows an intention that Gopal should take only on Farid's death in the testator's lifetime. If it does, section 130 stops Gopal taking on any other failure. If it does not, section 129 lets him take. The text of the Act leaves the question to the words of the will.
Order of deaths unprovable. A husband and wife die in an accident and nobody can say who died first. The husband's will gave his property to his wife, and if she died in his lifetime to her brother. As in the Act's illustration, the gift over does not take effect.
Related sections
Section 124 deals with a legacy given if an uncertain event happens with no time stated; see our article on sections 122 to 125. Sections 131 to 133 deal with the conditions attached to a gift over; see our article on ulterior bequests and strict fulfilment of conditions. The Transfer of Property Act, 1882 has parallel rules for transfers between living persons; see sections 27 to 30 of that Act and check the current law for the corresponding provision.
Where the sections apply
Schedule III lists sections 129 and 130 among the sections of Part VI that section 57 applies to the wills and codicils of Hindus, Buddhists, Sikhs and Jainas described there. 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.
Need help drafting an alternate legatee clause?
A gift over is simple to write and easy to get wrong. Our drafting team can read the wording with you and show which of these two sections it falls under before the will is signed.
Key takeaways
- A second bequest of the same thing takes effect when the prior bequest fails, even if the failure was not the one the testator had in mind (s.129).
- If the will confines the second bequest to a particular kind of failure, it takes effect only on that kind (s.130).
- If the order of two deaths cannot be proved, a gift over that depends on one dying first does not take effect.
- The words of the will decide which section applies.
Read next
- Sections 126 to 128: impossible or illegal conditions and condition precedent
- Sections 131 to 133: ulterior bequest on an uncertain event
- Sections 104 and 105: time of vesting and when a legacy lapses
- Sections 27 to 30 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.