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Section 361: Creditor may call upon legatee to refund

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 360 All 391 Sections of Indian Succession Act Section 362

Legal Commentary & Landmark Judgments: Section 361

Section 361 codifies the right of an unsatisfied creditor to follow estate assets into the hands of distributees, enabling recovery directly from legatees who have received payment.

  • Unsatisfied Lawful Creditor: Applies to creditors who were not paid out of the estate and who did not receive actual notice or whose claims could not be satisfied prior to distribution.
  • Right to Follow Assets: The creditor is entitled to call upon any legatee who has received payment or delivery of a bequest to refund the same to liquidate the lawful debt.
  • Subordination of Bequests to Debts: Affirms the fundamental principle of succession law that testamentary gifts are subordinate to the discharge of the testator's lawful debts.
Key Landmark Precedents:
  • March v. Russell (1837) 3 My & Cr 31: Lord Cottenham ruled that creditors have an equitable right to follow assets into the hands of legatees, irrespective of whether the executor was discharged by court order or statutory notice.
  • Ramamurthy v. Venkatasubbarayudu, AIR 1954 Mad 986: Held that a creditor of the deceased may maintain a suit against the legatees who have taken the estate, to the extent of the assets in their hands, under Section 361.
Courtroom Practice & Strategic Litigation Guidance:

Unsatisfied creditors discovering that the executor has distributed the estate should institute an action under Section 361 against the legatees, accompanied by an application for attachment before judgment under Order XXXVIII Rule 5 CPC over the distributed properties.

Section 360 All 391 Sections of Indian Succession Act Section 362