Section 108 Succession Act: When lapsed share goes as undisposed of

Section 108 of Indian Succession Act: Testamentary & Estate Administration Procedure

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

Where a share which lapses is a part of the general residue bequeathed by the Will, that share shall go as undisposed of.

Illustration

The testator bequeaths the residue of his estate to A, B and C, to be equally divided between them. A dies before the testator. His one-third of the residue goes as undisposed of.

Legal Commentary & Landmark Judgments: Section 108

Section 108 establishes the rule that where a lapsed share is itself a portion of the general residue, that lapsed share does not fall back into the residue, but goes as undisposed of under intestacy.

Core Legal Standard: Section 108 codifies the famous common law rule that a lapsed share of residue does not fall back into the residue (there can be no residue of a residue).
Operational Mechanism: Where a testator bequeaths the general residue of their estate to two or more persons as tenants in common (e.g., 'the residue of my estate to A, B, and C in equal shares'), and one of them (A) predeceases the testator, A's one-third share lapses.

Under Section 108, A's lapsed one-third share cannot be absorbed by surviving residuary legatees B and C, nor does it fall back into the residue. Instead, it goes as property undisposed of by will and devolves directly upon the testator's statutory legal heirs under the rules of intestate succession in Part V.

Key Landmark Precedents:

Suraj Pal v. Ram Kol, AIR 1952 All 324: The court held that under Section 108, a lapsed share of the general residue cannot be absorbed by the surviving residuary legatees and must devolve upon the intestate legal heirs of the deceased.
Gnambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103: The Supreme Court recognized that Section 108 creates an unavoidable partial intestacy when a residuary legatee predeceases the testator without a substitutional clause.

Legal Commentary:

Section 108 is the statutory heirs' premier weapon in residuary estates. When a residuary legatee dies before the testator, surviving residuary legatees invariably claim the entire estate. Counsel for the intestate heirs should invoke Section 108: the lapsed fraction cannot go to the surviving residuary legatees; it must be distributed to the intestate heirs under Section 32.

Section 108: When lapsed share goes as undisposed of

Section 108 of Indian Succession Act: Testamentary & Estate Administration Procedure

Legal Commentary & Landmark Judgments: Section 108