Sections 356-361 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 legacy that has been paid is not always safe. If the estate proves short, or a debt turns up, the Act says in what cases the executor may call on a legatee to give money back, and when a creditor may do the same. Sections 356 to 361 set out those cases and the protection an executor gets by giving notice to creditors. This article explains the six sections, as per the text of the Act consulted.
An executor or administrator who paid a legacy under the order of a Court may call on the legatee to refund if the assets prove insufficient to pay all the legacies (s.356); one who paid voluntarily cannot (s.357). If he later has to discharge a debt of which he had no previous notice, he may call on each legatee to refund in proportion (s.359). After giving the notices the High Court prescribes (or would give in an administration-suit), he may distribute assets and is not liable to a person of whose claim he had no notice (s.360). A creditor who has not been paid may call on a legatee who has been paid to refund (s.361).
Section 356: legacy paid under a Court's order
When an executor or administrator has paid a legacy under the order of a Court, he is entitled to call upon the legatee to refund in the event of the assets proving insufficient to pay all the legacies.
Section 357: legacy paid voluntarily
When an executor or administrator has voluntarily paid a legacy, he cannot call upon a legatee to refund in the event of the assets proving insufficient to pay all the legacies.
The difference between ss.356 and 357 is in how the payment was made: under a Court's order, or voluntarily. The same event (assets insufficient for all legacies) leads to a different result.
If you are an executor wondering whether to pay a legacy at once or wait for a Court's order, or a legatee asked to return money, early advice on legacy and estate disputes can help.
Section 358: further time under section 137
The section covers a particular chain of events. The time prescribed by the will for the performance of a condition has elapsed without the condition having been performed, and the executor or administrator has thereupon, without fraud, distributed the assets. In that case, if further time has been allowed under section 137 for the performance of the condition, and the condition has been performed accordingly, the legacy cannot be claimed from the executor or administrator. Those to whom he has paid it are liable to refund the amount. Section 137 itself is in Part VI of the Act and is not explained here.
Section 359: a debt of which there was no previous notice
When the executor or administrator has paid away the assets in legacies, and he is afterwards obliged to discharge a debt of which he had no previous notice, he is entitled to call upon each legatee to refund in proportion.
An invented example: an executor, Latha, pays three legacies of Rs. 50,000 each in full. Later a supplier's bill for Rs. 60,000, of which she had no previous notice, has to be met by her from the estate. On the text, she can call on each legatee to refund in proportion. The section says "in proportion" and does not give a formula; the text consulted prints none.
Section 360: distribution of assets after notice
Where an executor or administrator has given such notices as the High Court may, by any general rule, prescribe, or, if no such rule has been made, as the High Court would give in an administration-suit, for creditors and others to send in their claims against the estate, he shall, at the expiration of the time therein named for sending in claims:
- be "at liberty to distribute the assets, or any part thereof, in discharge of such lawful claims as he knows of"; and
- not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of the distribution.
The proviso says that nothing in the section shall prejudice the right of any creditor or claimant to follow the assets, or any part of them, in the hands of the persons who received them. So the executor is protected, but the creditor can still follow the assets into the hands of those who received them. The form and period of the notice are "as prescribed" by the High Court; the text consulted prints none and this article names none.
Section 361: a creditor may call on a legatee to refund
A creditor who has not received payment of his debt may call upon a legatee who has received payment of his legacy to refund, whether the assets of the testator's estate were or were not sufficient at the time of his death to pay both debts and legacies, and whether the payment of the legacy by the executor or administrator was voluntary or not.
The section is wide: it applies whether the assets were sufficient or not, and whether the payment was voluntary or not. That connects to the order of payment in s.325, under which debts of every description must be paid before any legacy (see our article on sections 319 to 325).
| Section | Who may call on whom | Condition |
|---|---|---|
| 356 | Executor on legatee | Legacy paid under a Court's order; assets prove insufficient for all legacies |
| 357 | Executor cannot call | Legacy paid voluntarily; assets prove insufficient |
| 358 | Those paid are liable to refund | Condition performed within further time allowed under s.137 after distribution without fraud |
| 359 | Executor on each legatee, in proportion | Obliged to discharge a debt of which he had no previous notice |
| 360 | Executor protected after notice | Notices given as prescribed or as in an administration-suit; creditor can still follow assets |
| 361 | Unpaid creditor on paid legatee | Whether assets sufficient or not; whether payment voluntary or not |
Practical points
- Give notice before distributing. Section 360 gives protection to an executor who has given the prescribed notices and waited for the time named.
- Voluntary payment has a cost. Under s.357 the executor who pays voluntarily cannot call for a refund if the assets later prove insufficient.
- A creditor's right is separate. Section 361 does not depend on the executor's right.
- Time limits. For a suit to recover a legacy or its refund, see our post on articles 42 to 46 of the Schedule to the Limitation Act, 1963; that is a different Act, and its periods are not part of this Act.
For the executor's earlier steps, see our guide on executor duties under a will. The next sections deal with refunds between legatees; see our article on sections 362 to 367. Later amendments are not shown in the text consulted and should be checked.
Need help with a refund or a creditor's claim?
If a legatee has been asked to refund, an executor wants to protect himself by giving notice, or a creditor has not been paid, we can explain the Act and help you plan the steps. Start with our legal dispute resolution service.
Key takeaways
- Legacy paid under a Court's order: the executor may call for a refund if assets prove insufficient (s.356); not if paid voluntarily (s.357).
- An unknown debt later discharged lets the executor call on each legatee to refund in proportion (s.359).
- Notice to creditors in the prescribed manner protects distribution as to claims not noticed, but creditors can follow the assets (s.360).
- An unpaid creditor may call on a paid legatee to refund (s.361).
Read next
- Sections 351-355: interest on legacies and annuities
- Sections 362-367: refund between legatees, residue and transfer of assets abroad
- Sections 368-369: liability of executor or administrator for devastation and neglect
- Executor duties under a will: probate, inventory and distribution
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.