Section 133: Original bequest not affected by invalidity of second

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925

Legal Commentary & Landmark Judgments: Section 133

Section 133 codifies the Rule in Lassence v. Tierney, establishing that where an original bequest is followed by an invalid second bequest, the original bequest remains absolute and unaffected.

  • Preservation of Original Gift: An original bequest is not affected by the invalidity of a subsequent gift over or condition intended to divest it.
  • Severability of Invalid Condition: If the gift over is void for perpetuity, illegality, or uncertainty, the original legatee takes the property absolutely, free from the condition.
  • Failure of Defeasance: The initial vested interest is not destroyed by the failure of the testator's secondary disposition.
Key Landmark Precedents:
  • Lassence v. Tierney (1849) 1 Mac & G 551: The landmark English precedent universally adopted under Section 133: if a testator makes an absolute gift and then attempts to engraft trusts or gifts over that fail, the absolute gift remains in full force.
  • Gopal Menon v. Sivaraman Nair (1981) 3 SCC 586: The Supreme Court held that where a subsequent restriction or gift over is void in law, the primary absolute bequest stands unshaken under Section 133.
Courtroom Practice & Strategic Litigation Guidance:

If a will gives an estate to 'A' and then purports to create a gift over to 'A's unborn great-grandchildren' (which violates Section 114 perpetuity rules), invoke Section 133; the invalidity of the gift over confirms 'A' as the sole absolute owner.