Section 123: One of two separate and independent bequests to same person may be accepted, and otherrefused

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925

Legal Commentary & Landmark Judgments: Section 123

Section 123 establishes that where a will makes two separate and independent bequests to the same person, the legatee is entitled to accept the beneficial bequest and disclaim the onerous one.

  • Core Legal Standard: Section 123 provides the vital statutory contrast to Section 122.
  • Operational Mechanism: Where a will contains two separate and independent bequests to the same person—one beneficial and the other onerous—the legatee is fully at liberty to accept the beneficial bequest and refuse the onerous one.

The decisive statutory test is whether the two bequests are truly distinct, independent dispositions, or whether they form parts of a single unified testamentary scheme. If the testator bequeaths profitable shares in Company A in Clause 2, and bequeaths loss-making, debt-ridden shares in Company B in Clause 7, the legatee can legally keep the profitable shares and disclaim the debt-ridden shares under Section 123.

Key Landmark Precedents:
  • C.V. Subba Rao v. C.V. Satyanarayana, AIR 1964 AP 322: The court held that under Section 123, a legatee has the absolute right to accept a beneficial bequest and repudiate an onerous bequest provided the two gifts are separate, distinct, and independent in the text of the will.
  • Pramod Kumar Jaiswal v. Bibi Husn Bano, (2005) 5 SCC 492: The Supreme Court affirmed that separate testamentary gifts allow autonomous election by the legatee under Section 123.
Legal Commentary:

Section 123 is a potent weapon in estate administration. When an estate contains problematic assets (e.g., heavily encumbered real estate or shares in litigious partnerships), litigators should examine whether those assets are bequeathed independently of other lucrative assets. If separate clauses exist, the legatee can execute a deed of disclaimer for the onerous asset under Section 123 while retaining the lucrative property.