Sections 138-141 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.
Chapter XII of Part VI deals with a will that gives a fund and then tells the legatee how to use it. Chapter XIII deals with a will that gives a legacy to a person it also names as executor. This article covers sections 138 to 140 (directions on application or enjoyment) and section 141 (the executor-legatee).
As per the text of the Act consulted: where a fund is bequeathed absolutely and the will directs how it is to be applied or enjoyed, the legatee may take the fund as if there were no such direction (s.138). Where the testator gives the fund absolutely, severing it from his own estate, but restricts the mode of enjoyment to secure a specified benefit, and that benefit cannot be obtained, the fund belongs to the legatee (s.139). Where the fund is not absolutely bequeathed but given for certain purposes and part of them cannot be fulfilled, the unexhausted fund remains part of the testator's estate (s.140). A legatee named as executor takes the legacy only if he proves the will or manifests an intention to act as executor (s.141).
Section 138: an absolute gift with a direction on its use
Section 138 reads, in substance: where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.
The Act's illustration: a sum of money is bequeathed towards purchasing a country residence for A, or to purchase an annuity for A, or to place A in any business. A chooses to receive the legacy in money. He is entitled to do so.
The section turns on the word "absolutely". If the fund is given absolutely, the direction on how to spend it does not bind the legatee. The text does not say anything about a gift that is not absolute; that is the subject of section 140. If you are unsure whether a gift in a will is absolute, a legal consultation is a sensible first step.
Section 139: restricted enjoyment that cannot be carried out
Section 139 applies where a testator absolutely bequeaths a fund, so as to sever it from his own estate, but directs that the mode of enjoyment by the legatee shall be restricted so as to secure a specified benefit for the legatee. If that benefit cannot be obtained for the legatee, the fund belongs to him as if the will had contained no such direction.
The Act's two illustrations:
- A bequeaths the residue of his property to be divided equally among his daughters, and directs that each daughter's share be settled on herself for life and paid to her children after her death. All the daughters die unmarried. The representatives of each daughter are entitled to her share of the residue.
- A directs his trustees to raise a sum of money for his daughter, to invest it and pay the income to her during her life, and to divide the principal among her children after her death. The daughter dies without ever having had a child. Her representatives are entitled to the fund.
In both the testator intended a benefit for the children of the legatee. No child was ever born, so the specified benefit cannot be secured, and the fund belongs to the legatee's representatives.
Section 140: a fund given for purposes, not absolutely
Section 140 covers the opposite case. Where a testator does not absolutely bequeath a fund, so as to sever it from his own estate, but gives it for certain purposes, and part of those purposes cannot be fulfilled, the fund, or so much of it as has not been exhausted upon the objects contemplated by the will, remains a part of the estate of the testator.
The Act's two illustrations:
- A directs that his trustees invest a sum in a particular way, pay the interest to his son for life, and at his death divide the principal among his children. The son dies without having had a child. The fund, after the son's death, belongs to the estate of the testator.
- A bequeaths the residue of his estate to be divided equally among his daughters, with a direction that they are to have the interest only during their lives, and that at their decease the fund shall go to their children. The daughters have no children. The fund belongs to the estate of the testator.
Printing note: in illustration (i) the copy reads "without having every had a child", where the sense is "ever". It is flagged here and not corrected.
Telling sections 139 and 140 apart
| Point | Section 139 | Section 140 |
|---|---|---|
| How the fund is given | Absolutely, severed from the testator's estate | Not absolutely; given for certain purposes |
| What fails | The specified benefit for the legatee cannot be obtained | Part of the purposes cannot be fulfilled |
| Who gets the fund | The legatee (as the Act's illustrations show, his representatives) | The fund, or what is unexhausted, remains part of the testator's estate |
The Act's illustrations to the two sections look alike (a gift for a daughter's life and then for her children, with no children). The difference lies in the opening condition: severed from the estate or not. In practice, the first thing to read in such a clause is whether the testator gave the fund away absolutely.
Section 141: a legatee who is named executor
Section 141 provides that if a legacy is bequeathed to a person who is named an executor of the will, he shall not take the legacy, unless he proves the will or otherwise manifests an intention to act as executor.
The Act's illustration: a legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the will, and dies a few days after the testator, without having proved the will. A has manifested an intention to act as executor.
The section sets a test. A named executor who simply ignores the office, and takes no step, does not take the legacy. A named executor who proves the will, or otherwise shows by his conduct that he means to act, does. The text names one act that is enough: ordering the funeral according to the will's directions. It does not list others. For what executors do, see our guide to executor duties under a will. Section 141 sits alongside the rules on renunciation of executorship, taken up in our later article on probate and renunciation of executorship.
Examples with invented names
Section 138. A will gives 5 lakh rupees "to Pallavi, to be spent on a course of study abroad". The gift is absolute. If Pallavi prefers to take the money, she may, as in the Act's illustration.
Section 139. A will gives 4 lakh rupees to Qadir "to be held in trust, income to him for life and the capital to his children". Qadir has no children when he dies. The fund was severed from the testator's estate, and the specified benefit for his children cannot be obtained, so it belongs to Qadir's representatives.
Section 140. A will directs trustees to hold a fund for the testator's grandnephew's education and then for his children. Part of the purposes cannot be fulfilled. The fund was not absolutely bequeathed, so the unexhausted balance remains part of the testator's estate.
Section 141. A will gives 1 lakh rupees to Rohan and names him executor. Rohan never applies for probate and takes no step in the estate. He does not take the legacy. If he had ordered the funeral as the will directed, the Act's illustration shows he would have manifested an intention to act.
Where the sections apply
Schedule III lists sections 138 to 141 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 with a legacy to an executor?
If a will leaves a legacy to the person it names as executor, whether that person has to act first is worth settling early. You can begin with a legal consultation.
Key takeaways
- An absolute bequest with a direction on use: the legatee may take the fund as if there were no direction (s.138).
- If the testator severed the fund but restricted enjoyment, and the specified benefit cannot be obtained, the fund belongs to the legatee (s.139).
- If the fund was not absolutely bequeathed, the unexhausted part remains in the testator's estate (s.140).
- A legatee named as executor takes the legacy only if he proves the will or manifests an intention to act (s.141).
Read next
- Sections 134 to 137: condition subsequent and time for performing a condition
- Section 142: specific legacy defined
- Executor duties under a will
- Sections 227 to 231: effect of probate and renunciation of executorship
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.