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Section 328: Non-abatement of specific legacy when assets sufficient to pay debts

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 327 All 391 Sections of Indian Succession Act Section 329

Legal Commentary & Landmark Judgments: Section 328

Section 328 codifies the paramount rule of Non-Abatement of Specific Legacies, providing that specific legacies do not abate until general legacies are completely exhausted.

  • Total Immunity from General Abatement: Where the assets of the estate are insufficient to pay all debts and legacies, specific legacies do not abate until all general legacies have been completely wiped out.
  • Exhaustion of General Fund First: General cash legacies and the residuary estate must be entirely depleted to pay debts before a specific legacy can be touched.
  • Proportionate Abatement Among Themselves: Only if the general estate is completely exhausted and debts still remain do specific legacies abate rateably among themselves.
Key Landmark Precedents:
  • Ranganathan Chettiar v. Periakaruppan Chettiar AIR 1957 SC 815: The Supreme Court delivered an authoritative ruling on Section 328, affirming that specific legacies are statutorily insulated from abatement and enjoy absolute preference over general cash bequests.
  • Subramaniam v. Ramaswamy (1932) 34 BOMLR 1612: The Privy Council affirmed that specific legatees are entitled to receive their specific assets intact so long as general funds suffice to pay creditors.
Courtroom Practice & Strategic Litigation Guidance:

In estate insolvency disputes, defend specific legatees (e.g. someone left a specific house or car) by citing Section 328; the executor must exhaust all bank accounts, cash, and general legacies before he can sell the specifically bequeathed house to pay debts.

Section 327 All 391 Sections of Indian Succession Act Section 329