Sections 187-190 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.
Sections 187 to 190 of the Indian Succession Act, 1925 deal with how a legatee who is put to election actually makes his choice. A choice can be made by acceptance of a benefit, it can be presumed after two years' enjoyment, the testator's representatives can call on the legatee to choose after one year, and a disability postpones the choice. This article explains the four sections as per the text of the Act consulted.
Under s.187, accepting a benefit given by a will is an election to take under the will if the legatee knew of his right to elect and of the circumstances that would influence a reasonable man, or waives inquiry. Under s.188, that knowledge or waiver is presumed after two years' enjoyment without dissent. Under s.189, if the legatee has not signified his choice within one year of the testator's death, the representatives require him to elect. Under s.190, disability postpones the election.
The setting: a legatee who must choose
Election arises when a will disposes of something that belongs to the legatee while also giving him a benefit. The rule itself is covered in our article on the doctrine of election under a will, and the people who are not put to election are covered in ss.184-186. Sections 187 to 190 answer the practical questions that follow: how does the legatee choose, and by when?
Because an election can alter who ends up owning an estate, a family often needs a careful reading of the will and the title papers. If you are in that position, a legal consultation is a sensible first step. Our team can map what the will gives, what it takes away and what has already been done.
Section 187: acceptance of a benefit
Section 187 says that acceptance of a benefit given by a will constitutes an election by the legatee to take under the will in either of two situations:
- the legatee had knowledge of his right to elect and of those circumstances that would influence the judgment of a reasonable man in making an election; or
- he waives inquiry into the circumstances.
So acceptance alone is not enough. Knowledge, or a waiver of inquiry, must go with it.
The Act's illustrations
The two illustrations to s.187 show a legatee who accepted, but without the knowledge the section requires. They use old estates and sums, and are the Act's own illustrations.
- Illustration (i). A owns an estate called Sultanpur Khurd and has a life interest in another estate called Sultanpur Buzurg, to which, on A's death, his son B will be absolutely entitled. A's will gives Sultanpur Khurd to B and Sultanpur Buzurg to C. B, in ignorance of his own right to Sultanpur Buzurg, allows C to take possession of it and enters into possession of Sultanpur Khurd. The Act says B has not confirmed the bequest of Sultanpur Buzurg to C.
- Illustration (ii). B, the eldest son of A, possesses an estate called Sultanpur. A leaves Sultanpur to C, and to B the residue of A's property. B, having been told by A's executors that the residue will amount to 5,000 rupees, allows C to take possession of Sultanpur. He later finds the residue does not amount to more than 500 rupees. The Act says B has not confirmed the bequest of Sultanpur to C.
Section 188: when knowledge or waiver is presumed or inferred
Section 188 has two sub-sections.
Sub-section (1). Knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing any act to express dissent.
Sub-section (2). Knowledge or waiver of inquiry may be inferred from any act of the legatee that makes it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if the act had not been done.
The difference in the wording is worth noting: sub-section (1) says "shall be presumed" (unless there is evidence to the contrary), while sub-section (2) says "may be inferred".
The Act's illustration
A leaves B an estate to which C is entitled, and leaves C a coal-mine. C takes possession of the mine and exhausts it. The Act says C has thereby confirmed the bequest of the estate to B. Exhausting the mine is an act that cannot be undone, so the persons interested cannot be put back in their former position.
A fresh example
Kavita receives the use of a rented shop from her uncle's will, which also gives away a plot that belongs to her. She collects the shop rent for two years and writes nothing to anyone to express dissent. Applying the rule of s.188(1) as printed, knowledge or waiver of inquiry is presumed in the absence of evidence to the contrary. If Kavita had written to the executors within that time saying she did not accept the will's arrangement, the position on "without doing any act to express dissent" would need to be looked at differently.
Section 189: when the testator's representatives may call on the legatee
Section 189 deals with the case where the legatee says nothing. If he does not, within one year after the death of the testator, signify to the testator's representatives his intention to confirm or to dissent from the will, then:
- the representatives shall, on the expiry of that period, require him to make his election; and
- if he does not comply with that requisition within a reasonable time after he has received it, he is deemed to have elected to confirm the will.
The section does not define "a reasonable time" and the text gives no figure for it. The one-year period is counted from the death of the testator, not from the date the legatee learns of the will.
Section 190: postponement in case of disability
Section 190 is short. In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority. The section does not list what counts as a disability; the text of the Act consulted prints no list in this section.
Summary of the four sections
| Section | What it covers | Period or test in the text |
|---|---|---|
| 187 | Acceptance of a benefit is an election to take under the will | Knowledge of the right to elect and of circumstances that would influence a reasonable man, or waiver of inquiry |
| 188(1) | Knowledge or waiver presumed | Two years' enjoyment without any act to express dissent |
| 188(2) | Knowledge or waiver inferred | An act making it impossible to restore the persons interested to their former condition |
| 189 | Representatives call on the legatee | One year after the testator's death; then a reasonable time after the requisition |
| 190 | Disability | Election postponed until the disability ceases or a competent authority elects |
Practical points
- Keep a record of dissent. Section 188(1) speaks of an act "to express dissent". Whether a letter or other step is such an act depends on the facts, but a record shows when and how a legatee spoke.
- Ask for the facts before accepting. Section 187 turns on knowledge of the right to elect and of the circumstances. The Act's illustrations (i) and (ii) show that a legatee who accepted without them had not confirmed.
- Executors should watch the first year. Section 189 puts a duty on the representatives, using the word "shall", once one year after the death has passed.
For a different kind of benefit given only in contemplation of death, see section 191 on gifts in contemplation of death. For how limitation periods work in the legacy context, a general guide is our article on limitation periods. The Transfer of Property Act has a parallel rule for transfers between living persons: Section 35 of the Transfer of Property Act, 1882 on the doctrine of election.
Need help with an election under a will?
Whether a legatee has elected, and when, can change who owns an estate. Our team can read the will, the dates of enjoyment and any communication with the executors, and explain where the legatee stands. Book a legal consultation and bring the will with every document that shows what the legatee received and when.
Key takeaways
- Section 187: acceptance of a benefit is an election to take under the will, if the legatee knew of his right to elect and the relevant circumstances, or waives inquiry.
- Section 188: knowledge or waiver is presumed after two years' enjoyment without dissent, and may be inferred from an act that cannot be undone.
- Section 189: after one year from the testator's death, the representatives shall require the legatee to elect; failure to comply within a reasonable time is deemed election to confirm.
- Section 190: disability postpones the election.
- The illustrations use old sums (5,000 and 500 rupees) and estates; they explain the rule and are not current facts.
- The copy consulted shows amendments up to the Indian Succession (Amendment) Act, 2002 (26 of 2002); later amendments should be checked.
Read next
- Sections 184-186: who is not put to election and the exception
- Section 191: gift made in contemplation of death
- Sections 180-183: the doctrine of election under a will
- Limitation period for filing suits and appeals
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.