Section 335 Succession Act: Assent of executor to his own legacy

Section 335 of Indian Succession Act: Testamentary & Estate Administration Procedure

Official Bare Act Text

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

(1) When the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to it, in the same way as it is required when the bequest is to another person, and his assent may, in like manner, be expressed or implied.

(2) Assent shall be implied if in his manner of administering the property he does any act which is referable to his character of legatee and is not referable to his character of executor or administrator.

Illustration:

An executor takes the rent of a house or the interest of Government securities bequeathed to him and applied it to his own use. This is assent.

Legal Commentary & Landmark Judgments: Section 335

Section 335 regulates the assent of an executor to their own legacy, enacting that an executor cannot claim a testamentary bequest beneficially without expressing or demonstrating assent in their representative capacity.

Necessity of Distinct Dual Capacity: An executor who is also a legatee holds property initially as a fiduciary personal representative; a conscious act of assent is mandatory to convert that possession into beneficial ownership.
Modes of Assent: Assent may be express through formal written declaration, or implied from unambiguous conduct demonstrating that the property is held as legatee rather than executor.
Evidentiary Presumption from Administration: Where the executor has fully discharged all estate debts and testamentary charges, their continued retention and personal enjoyment of the bequeathed asset raises a strong legal presumption of implied assent.

Key Landmark Precedents:

In re Culverhouse; Cook v. Culverhouse [1896] 2 Ch 251: Held that when an executor-cum-legatee has paid all funeral expenses and debts, their assent to their own legacy is presumed, and they thenceforth hold as absolute owner or trustee for beneficiaries.
Commissioner of Income-Tax v. Estate of V.L. Ethiraj, (1979) 120 ITR 271 (Mad): Ruled that the dual character of executor and legatee terminates the moment assent is manifested, and subsequent income accrued from the property must be taxed in the hands of the beneficiary.

Courtroom Practice & Strategic Litigation Guidance:

When representing creditors of an executor personally, counsel should establish implied assent under Section 335 (e.g., mutation in personal revenue records, letting out the property in personal name) to execute personal decrees against the bequeathed assets.

Section 335: Assent of executor to his own legacy

Section 335 of Indian Succession Act: Testamentary & Estate Administration Procedure

Legal Commentary & Landmark Judgments: Section 335