Sections 167-168 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.
A will may give someone a ring that is in pawn or a farm that is mortgaged. Who pays off the charge: the legatee or the estate? Chapter XVII of Part VI begins with section 167, which answers for a specific legacy, and section 168, which deals with costs needed to complete the testator's own title to the thing.
As per the text of the Act consulted, where property specifically bequeathed is subject at the testator's death to a pledge, lien or incumbrance created by the testator or by a person under whom he claims, then, unless a contrary intention appears by the will, the legatee who accepts the bequest takes it subject to the pledge or incumbrance and is liable, as between himself and the estate, to make good the amount (s.167(1)). A direction to pay the testator's debts generally does not show a contrary intention (s.167(2)). A periodical payment in the nature of land-revenue or rent is not such an incumbrance (Explanation). Anything to be done to complete the testator's title is done at the cost of the estate (s.168).
Section 167(1): the legatee takes subject to the charge
Section 167 is headed "Non-liability of executor to exonerate specific legatees". Sub-section (1) says that where property specifically bequeathed is subject, at the death of the testator, to any pledge, lien or incumbrance created by the testator himself or by any person under whom he claims, then, unless a contrary intention appears by the will, the legatee, if he accepts the bequest, shall accept it subject to such pledge or incumbrance, and shall (as between himself and the testator's estate) be liable to make good the amount of such pledge or incumbrance.
The pieces:
- Specifically bequeathed. The section is about specific legacies; see our article on section 142.
- A pledge, lien or incumbrance that exists at the death, created by the testator or by someone through whom he holds.
- "Unless a contrary intention appears by the will". The will can put the burden on the estate.
- "If he accepts the bequest". The legatee has a choice; compare section 122 on accepting an onerous bequest fully, covered in our article on sections 122 to 125.
- "As between himself and the testator's estate". The section is about who bears the burden between the legatee and the estate. The text does not speak of the rights of the lender.
If you hold a legacy that is subject to a charge and you are not sure whether to accept it, a legal consultation before you accept or refuse is a sensible step.
Section 167(2): a general direction to pay debts is not enough
Sub-section (2) provides that a contrary intention shall not be inferred from any direction which the will may contain for the payment of the testator's debts generally. A will that says "my debts shall be paid first" does not, by those words alone, relieve a specific legatee of the burden on his gift. The will would need to say more, pointing to the particular charge.
The Explanation: rent and land-revenue
The Explanation states that a periodical payment in the nature of land-revenue or in the nature of rent is not such an incumbrance as is contemplated by this section. The copy prints the word "Explanation" followed by a full stop and a lower-case letter, which is its way of printing a dash. Periodical payments of that kind are dealt with in section 169, covered in our next article on land revenue, rent and calls on shares.
The Act's illustrations to section 167
- A bequeaths to B the diamond ring given to him by C. At A's death the ring is held in pawn by D, to whom it was pledged by A. It is the duty of A's executors, if the state of the testator's assets will allow them, to allow B to redeem the ring.
- A bequeaths to B a zamindari which at A's death is subject to a mortgage for 10,000 rupees, and the whole of the principal, together with interest to the amount of 1,000 rupees, is due at A's death. B, if he accepts the bequest, accepts it subject to this charge and is liable, as between himself and A's estate, to pay the sum of 11,000 rupees thus due.
Illustration 1 is worth reading closely. The executors' duty is to allow B to redeem the ring, if the estate can afford it: that is, to let B pay off the pledge and take the ring. The text does not say the estate pays the pawn. Illustration 2 shows the sum B must make good: the principal and the interest due at death, 11,000 rupees in all.
Section 168: completing the testator's title
Section 168 states that where anything is to be done to complete the testator's title to the thing bequeathed, it is to be done at the cost of the testator's estate. The Act's illustrations:
- A, having contracted in general terms for the purchase of a piece of land at a certain price, bequeaths it to B and dies before he has paid the purchase-money. The purchase-money must be made good out of A's assets.
- A, having contracted for the purchase of a piece of land for a certain sum, one-half of which is to be paid down and the other half secured by mortgage of the land, bequeaths it to B, and dies before he has paid or secured any part of the purchase-money. One-half of the purchase-money must be paid out of A's assets.
The two illustrations are worth putting side by side. In the first the whole price is unpaid and the estate pays the whole. In the second only one-half was to be paid down, with the other half to be secured by mortgage of the land, so the Act says one-half of the purchase-money must be paid out of A's assets.
Comparing the two sections
| Point | Section 167 | Section 168 |
|---|---|---|
| Situation | A pledge, lien or incumbrance already on the thing at death | Something still has to be done to complete the testator's own title |
| Who bears the burden between legatee and estate | The legatee, if he accepts, unless a contrary intention appears | The estate |
| Effect of a general direction to pay debts | Does not show a contrary intention | Not mentioned |
| Act's figures | Mortgage of 10,000 rupees plus 1,000 rupees interest: 11,000 rupees | One-half of the purchase-money paid from the assets |
Examples with invented names
Section 167. Pooja's will gives her gold necklace to her niece Quincy. At Pooja's death the necklace is pledged with a finance company. Unless the will shows a contrary intention, Quincy takes the necklace subject to the pledge and must make good the amount, if she accepts it.
General direction. Pooja's will also says "all my debts are to be paid from my estate". Under section 167(2) that general direction does not show a contrary intention about the necklace.
Section 168. Ravi agrees to buy a plot for 6 lakh rupees, pays nothing, and by his will gives the plot to his son before he dies. Under section 168 and the Act's first illustration, the price must be made good out of Ravi's assets.
Where the sections apply
Schedule III lists sections 167 and 168 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 that carries a charge?
If a specific legacy is subject to a pledge or mortgage, the legatee needs to know before accepting what he will have to pay. You can begin with a legal consultation.
Key takeaways
- A specific legatee who accepts takes the property subject to a pledge, lien or incumbrance existing at death, unless the will shows a contrary intention (s.167(1)).
- A general direction to pay debts does not show a contrary intention (s.167(2)).
- Periodical payments in the nature of land-revenue or rent are not such an incumbrance.
- What is needed to complete the testator's title is done at the cost of the estate (s.168).
Read next
- Sections 169 and 170: land revenue, rent and calls on shares bequeathed
- Sections 162 to 166: when a change in the thing bequeathed is not ademption
- Sections 122 to 125: onerous bequests and contingent bequests
- Section 142: specific legacy defined
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.