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Section 362: When legatee, not satisfied or compelled to refund under section 361, cannot oblige one paid in full to refund

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 361 All 391 Sections of Indian Succession Act Section 363

Legal Commentary & Landmark Judgments: Section 362

Section 362 regulates the equitable limitations on refund claims between legatees, providing that a legatee who is unsatisfied cannot compel a fully paid legatee to refund if the deficiency arose from executorial misapplication.

  • Deficiency Caused by Executorial Waste: Applies where original estate assets were sufficient to pay all legacies in full, but a subsequent deficiency was caused by the insolvency, embezzlement, or waste (devastavit) of the executor.
  • Bar on Inter-Legatee Restitution: An unpaid or unsatisfied legatee cannot compel a legatee who was paid in full to refund any portion of their bequest.
  • Recourse Confined to Defaulting Executor: The unsatisfied legatee must look solely to the personal assets of the defaulting executor or administrator for recovery.
Key Landmark Precedents:
  • Fenwick v. Clarke (1862) 4 De GF & J 240: Lord Justice Turner held that where assets were originally sufficient, but were wasted by the executor, an unpaid legatee cannot compel a paid legatee to refund.
  • Roper v. Roper (1876) 3 Ch D 714: Affirmed that as between legatees, where the executor was solvent and held enough funds at the time of paying the first legatee, a subsequent shortfall falls on the executor, not the paid legatee.
Courtroom Practice & Strategic Litigation Guidance:

When defending a legatee who was paid in full against an action by an unpaid legatee, plead Section 362 and prove that the estate was originally solvent and that the present deficit was caused by executorial misconduct or insolvency.

Section 361 All 391 Sections of Indian Succession Act Section 363