Devolution and Transmission

1. Devolution

1.1 Devolution prior to the 1891 Act
Prior to the Registration of Title Act, 1891, only the Personal Estate of a deceased person devolved on and became vested in his personal representative. The personal estate included Chattels Real, i.e. leaseholds and tenancy interest.

The Real Estate of a deceased person, that is his freehold property, did not devolve on the personal representative but passed directly to the devisee under a Will, or in the case of an intestacy to the heir at law, subject to estates of Dower in favour of a Widow and Curtesy in favour of a Widower.

1.2 Under Part IV Registration of Title Act, 1891

  1. Part IV of this Act provided that freehold registered land at anytime sold or conveyed to or vested in a purchaser under the Land Purchase Acts, would devolve on and become vested in his personal representative (Section 84) and descend as if it were personal estate (Section 85).
  2. Demesne Lands vested under the Land Purchase Acts also became subject to Part IV of the 1891 Act if there was a registered owner thereof alive on or after the 9th August 1923, (Section 60 Land Act, 1923).
  3. Freehold registered land at any time purchased by means of an advance under the Small Dwellings Acquisition Acts, 1899-1931, became subject to Part IV of the 1891 Act if there was a registered owner thereof alive on or after the 15th December 1942 (Registration of Title Act, 1942, Section 19).

1.3 Administration of Estates Act 1959
This Act provided (in Section 6) that Real Estate of a deceased person dying on or after 1st June 1959, would devolve on and become vested in his personal representative. The Act did not alter the manner of devolution of the beneficial interest in freeholds.

1.4 The Succession Act
This Act which came into operation on 1st January 1967, repealed and re-enacted the Administration of Estates Act, 1959, by providing in Section 10 that the Real and Personal Estate of a deceased person shall devolve on and become vested in his personal representative.

Section 12 provided that hence forth realty would descend in the same manner as personalty.

The Act substantially altered the manner of distribution on death intestate (Part VI) and provided a legal right for the spouse of the deceased person which could not be defeated by his will (Section 111) and an obligation to provide for his children (Section 117).

1.5 Devolution Notes
No Devolution note is to be entered on leasehold folios.

On freehold folios bearing a devolution note which does not refer to Part II of the Succession Act, where ever a Settling Officer is satisfied that there was a registered full owner alive on or after 1st January 1967, such devolution note should be altered to read:

” The Devolution of the property is subject to the provisions of Part II of the Succession Act, 1965.”

Where the registered owner is a limited owner the existing devolution note is not to be amended unless the Legal Officer is satisfied that a registered full owner or a person entitled to be registered as full owner was alive after the 1st January 1967.

2. Personal Representatives

2.1 Assents by Personal Representatives
The Administration of Estates Act, 1959, gave the power to the personal representative to vest any land of a deceased person dying testate or intestate after 1st June 1959, in the person entitled thereto by means of an assent in writing (Section 20) and authorised the Registrar to register the person named in such assent (Section 22(3)).

Prior to the Act an assent was not effective to pass an interest in land and was appropriate only in the case where a devisee was to be registered. (The interest passed by virtue of the devise). In any other case a transfer from the personal representative was required only where the personal representative was beneficially entitled (where the interest was already vested in him/herself).

The above provisions were re-enacted by Section 61 of the ROT Act, 1964, (Section 61(1) and Section 61(3)(b) in relation to transmission of registered land from limited owner repealed by the 2009 Act) as amended by Section 54 of the Succession Act, 1965 which provided in addition that, in the case of an application accompanied by an assent in the prescribed form:

“it shall not be the duty of the Authority, nor shall it be entitled to call for any information as to why any assent or transfer is or was made, and he shall be bound to assume that the personal representative is or was acting ………… correctly and within his powers”.

2.2 Registration of Personal Representatives as full owners with Inhibition

(i) When a dealing is lodged on a folio that contains an inhibition, entered at the time of a Land Commission First Registration, restricting all dealings by the registered owner of the folio except in the administration of the estate of some deceased person, the said dealing is to be passed to the Higher Executive Officer for attention. The Divisional Manager may be consulted where necessary.

(ii) There is no provision in the Registration of Title Act, 1964, or the Land Registration Rules, 2012, for the registration of a personal representative as full owner with an inhibition inhibiting dealings with the property except in the administration of the estate of the deceased person.

The Act or the Rules do not prohibit such registration, but such registration should not normally be made since the note of death procedure provided by the Rules is adequate.

In rare cases it may be necessary to make such a registration e.g. where the Court directs or in certain Section 49 applications.

(iii) Prior to 1959 personal representatives of deceased registered owners were registered as full owners with an inhibition inhibiting all dealings except in the administration of the estate of the former registered owner.

Where a personal representative so registered is the executor of the former registered owner his registration does not prevent him from assenting to the devise. He may either assent to the devise or transfer the property to the devisee.

If an executor so registered died testate before the 1st January 1967, and has appointed an executor who proves his will, such last mentioned executor can, as personal representative of the original registered owner, proceed with administration of the estate by sale, transfer or assent, etc.(See heading 2.6 hereunder).

(iv) Where a personal representative so registered dies before completing the administration and chain of executorship does not arise the following practice is to be adopted on lodgment of a dealing:-

(a) If the inhibition entered on the folio is against all dealings except a transfer on sale without notice to persons beneficially entitled a grant de bonis non or an order under Section 61(7) of the Registration of Title Act, 1964, is not to be called for. The inhibition was often entered in this form where the property had been devised to the personal representative on trust to sell. The Grant to the deceased personal representative is to be accepted and notice served on the persons named in the inhibition. If the registration of the personal representative is more than 12 years old, the present addresses of the notice parties should be ascertained. If some of the notice parties are deceased the names and addresses of their personal representatives or the persons entitled to their assets is to be requisitioned and notice served on such persons. If the dealing lodged is a sale by the personal representative of the deceased personal representative registration is to proceed after...

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