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Section 138: Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 137 All 391 Sections of Indian Succession Act Section 139

Legal Commentary & Landmark Judgments: Section 138

Section 138 codifies the Rule in Saunders v. Vautier, establishing that where property is bequeathed absolutely, any subsequent direction attempting to restrict or postpone the mode of enjoyment is void and unenforceable.

  • Repugnancy to Absolute Estate: Where a fund is bequeathed absolutely to or for the benefit of any person, but the will directs that it shall be employed or enjoyed in a particular manner, the legatee is entitled to receive the fund immediately and absolutely.
  • Invalidity of Postponed Enjoyment: Directions postponing enjoyment until a later age (e.g. 'to A absolutely, but he shall not receive it until age 30') are void; an adult legatee of sound mind can demand immediate transfer.
  • Preservation of Alienation Rights: Restraints on alienation or management appended to an absolute bequest are repugnant to the estate and legally ineffective.
Key Landmark Precedents:
  • Saunders v. Vautier (1841) Cr & Ph 240: The foundational equity ruling codified in Section 138: a beneficiary with an absolute indefeasible interest in property can demand immediate conveyance upon attaining majority, disregarding postponing directions in the will.
  • Gopal Menon v. Sivaraman Nair (1981) 3 SCC 586: The Supreme Court held that where an absolute estate is conferred, any subsequent clause curtailing the owner's power of enjoyment or alienation is void for repugnancy under Section 138.
  • Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128: Reaffirmed that an absolute devisee takes the estate free from repugnant operational shackles.
Courtroom Practice & Strategic Litigation Guidance:

If a client is the absolute beneficiary of an estate or testamentary trust but the executors refuse to hand over corpus because the will directed payout at age 35, counsel should issue a legal notice citing Section 138 and *Saunders v. Vautier*; an adult beneficiary is entitled to immediate delivery.

Section 137 All 391 Sections of Indian Succession Act Section 139