This section is comparable to Section 27 of the Transfer of Property Act, which embodies the principle of acceleration. Ordinarily speaking, acceleration means that the time for vesting in possession of the expectant interest is advanced due to various reasons, such as revocation by codicils, disclaimer, forfeiture, lapses, etc.

By way of analogy, it may be pointed out that before the passing of the Hindu Succession Act, 1956, a Hindu widow could accelerate the reversion by surrendering her limited interest in favor of the prior bequest, even though it did not fail in the manner contemplated by the testator.

The rule would apply even when the subsequent interest is a partial interest, such as an annuity subject to a life interest that has been disclaimed.

Under English law, acceleration may occur, even if it changes the class of persons designated to take by advancing the time for ascertaining the class.

However, acceleration cannot occur where the donees under the subsequent gifts are not in existence, as seen in Townshend v. Townshend (1886) 34 Ch D 357.

3. Effect of the Failure of Prior Bequests: In Radhaprosad v. Raneemoni 33 Cal 957: 10 CWN 695, the testator made a gift to a son to be adopted by his widow, and on the adopted son's death without issue during the widow's lifetime, then to his daughters. However, the widow's power of adoption became void. It was held that the executory gift took effect even though the prior gift failed ab initio because its object never came into existence. In Durgaprosad v. Raghunandan 19 CWN 439: 23 IC 597, the testator's will stipulated that if his minor son died without attaining majority and the testator's widow survived the minor son, then she would inherit the properties before the two daughters. The widow predeceased the son, so the event did not unfold in the order the testator had anticipated. Nevertheless, it was held that this fact did not deprive the daughters of the benefit of the legacy given to them, and the section is clear on this point.

It may be observed that in both cases just cited, the prior bequest did not fail in the specific manner contemplated in the will, and so the section applied.

Following the English decision in Jones v. Westcomb 1 Eq Cas 245, it was decided in Okhoy v. Nilmonee 15 Cal 282 that where the testator provided for a gift to a son, if born (his wife then being pregnant), and a gift over to the testator's brother if the child born was a daughter (subject to her right of maintenance), the section would apply. Thus, the gift over to the testator's brother would take effect on the failure of the prior gift to the son, even though such failure did not occur in the precise manner contemplated in the will.

The failure of a gift envisaged either in this section or Section 27 of the Transfer of Property Act refers to the failure of a valid gift. However, when a gift fails because it is void ab initio, the subsequent gifts must also fail, not under this section or Section 27 of the Transfer of Property Act, but under Section 116 of this Act or Section 16 of the Transfer of Property Act, as seen in Ismail v. Umar AIR 1942 Bom 155: ILR 1942 Bom 441.

The general rule of English law is that where there is a subsequent limitation, meant to take effect upon the failure of a prior one, then if the prior limitation is removed or does not take effect, the subsequent limitation must take effect. For instance, where there was a legacy conditioned on the legatee executing a release within three months after the testator's death, and if he failed to do so, there would be a gift over, it was held that the gift over took effect when the legatee died during the testator's lifetime, as seen in Anelyn v. Ward 1 Ves Sen 420.

Written By: S Kundu & Associates
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