Sections 368-369 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.
Executors and administrators hold an estate for others. Chapter XIII of Part IX contains two short sections that say what happens when they cause it harm: if they misapply the estate or expose it to loss (s.368, headed "devastation"), or if they cause a loss by neglecting to get in part of the property (s.369). This article explains both, with the Act's five illustrations, as per the text of the Act consulted.
When an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned (s.368). When he occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount (s.369). The Act's illustrations include paying an unfounded claim, failing to give notice to renew or end a lease, releasing a debt owed by a solvent person, and failing to sue until the debt is barred.
Section 368: misapplication, loss or damage
The section reads, in substance: when an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned. (The copy consulted prints "subject it to loss", where "subjects" seems meant; this is a printing slip.)
Two kinds of conduct are covered: misapplying the estate, and subjecting it to loss or damage. The measure of liability is "the loss or damage so occasioned". The text does not mention interest, a penalty or a time limit.
The Act's three illustrations to s.368
- Unfounded claim. The executor pays out of the estate an unfounded claim. He is liable to make good the loss.
- Lease renewable by notice. The deceased had a valuable lease renewable by notice, which the executor neglects to give at the proper time. The executor is liable to make good the loss.
- Lease terminable on notice. The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss.
Illustrations 2 and 3 are the same failing seen from two sides: in the first, giving notice would have kept something valuable; in the second, giving notice would have ended a burdensome lease. In each, the executor's neglect to give notice is a cause of loss.
If you are a beneficiary who suspects that an executor has misapplied the estate, or an executor who wants to understand the standard the Act sets, early advice on estate disputes and executor liability can help.
Section 369: neglect to get in property
When an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount. This links with s.319, under which the executor shall collect, with reasonable diligence, the property of the deceased and the debts due to him (see our article on sections 319 to 325).
The Act's two illustrations to s.369
- Release or compounding. The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount.
- Delay until barred. The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation, and the debt is thereby lost to the estate. The executor is liable to make good the amount.
The second illustration refers to limitation as a general idea; this article does not state any period. For the Act's rule that an executor has the same power to sue as the deceased, see our article on sections 305 and 306, and for the periods themselves see our general guide on limitation periods for suits and appeals, which belongs to a different law.
A fresh example
Mrs. Joshi is executor of her brother's estate. The estate is owed Rs. 2,00,000 by a solvent businessman, Mr. Arora. She tells Mr. Arora in writing that the debt need not be repaid, without any benefit to the estate. On illustration (i) to s.369, an absolute release of a debt due to the deceased from a solvent person makes her liable to make good the amount. Suppose instead that she simply never asks Mr. Arora for payment and never sues, until the claim is time-barred. Illustration (ii) says she is liable to make good the amount.
| Section | Conduct | Liability | Act's illustrations |
|---|---|---|---|
| 368 | Misapplies the estate, or subjects it to loss or damage | Make good the loss or damage occasioned | Unfounded claim paid; lease not renewed by notice; burdensome lease not ended by notice |
| 369 | Occasions a loss by neglecting to get in any part of the property | Make good the amount | Absolute release or compounding with a solvent debtor; neglecting to sue until barred |
What the sections do not say
The two sections do not say who may sue the executor, in which Court, or within what time. They do not say how loss is measured beyond "the loss or damage so occasioned" and "the amount". They do not say anything about an executor's good faith. The text consulted also prints no fee or penalty. Other sections of the Act, such as those on removal of an executor (see our article on sections 299 to 302) and on a person who acts without being an executor (see sections 303 and 304), deal with related questions.
For the general picture of an executor's duties, see our guide on executor duties under a will.
Later amendments are not shown in the text consulted and should be checked.
Need help with executor liability?
If you are a beneficiary concerned about how an estate has been handled, or an executor wanting to avoid the situations these sections describe, we can explain the Act and help you plan. Start with our legal dispute resolution service.
Key takeaways
- An executor or administrator who misapplies the estate or subjects it to loss or damage must make good the loss or damage (s.368).
- One who neglects to get in any part of the property and thereby occasions a loss must make good the amount (s.369).
- The Act's illustrations cover paying an unfounded claim, failing to give lease notices, releasing a solvent debtor and letting a debt become time-barred.
Read next
- Sections 362-367: refund between legatees, residue and transfer of assets abroad
- Section 370: succession certificate, when it cannot be granted and meaning of security
- Sections 303-304: executor of his own wrong and his liability
- 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.