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Report No. 110

II. Void Bequests

21.3A. Section 126-Bequest upon impossible condition.- Section 126 reads:-

"126. A bequest upon an impossible condition is void.

Illustrations

(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.

(ii) A bequeaths 500 rupees to B on condition that he shall marry A's daughter. A's daughter was dead at the date of the will. The bequest is void."

The section needs no change.

21.4. Section 127-Condition contrary to law or morality.- Section 127 reads-

"127. A bequest upon a condition, the fulfillment of which would be contrary to law or to morality, is void.

Illustrations

(0 A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.

(ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void."

The section needs no change.

21.5. Public policy a wider concept.-

While section 127 mentions "law and morality", it does not mention "public policy". It is elementary that transactions inter vivos are void if opposed to public policy, and bequests should stand on the same footing. Public policy is a wider concept than 'law or morality'. It may cover, for example, interference with the administration of justice, restraint of marriage and other matters which may not be embraced by "morality". Questions have, in particular, arisen as to the validity of restraints on marriage, inserted in contracts and wills.

As to wills, in a Bombay case,1 the testator had put a condition whereunder if a legatee married a non-Zoroastrian, the property would pass to another. Chagla, C.J. held that such a condition would not be considered as contrary to "law or morality" under section 127 of the Indian Succession Act. Discussion of the aspect of restraint on marriage as violating public policy was held to be irrelevant, having regard to the fact that section 127 concerns itself only with "law and morality".

1. Khurshed Maneck v. Official Trustee of Bombay, AIR 1948 Born 319.

21.6. Transfer of Property Act.-

It may be noted that the Transfer of Property Act1 is more specific on the subject. Under that Act, no transfer can be made for an unlawful object or consideration within the meaning of section 23 of the" Indian Contract Act, 1872. Section 23 of the Contract Act, inter-alia, renders void agreements the consideration or object whereof is opposed to "public policy".

1. Section 6(h)(2), Transfer of Property Act, 1882.

21.7. Recommendation to add 'public policy'.-

In our view, section 127 should be amended by specifically adding 'public policy'. On principle, bequests contrary to public policy should not be regarded as valid. Moreover, as already stated,1 there is no reason why the rule applicable to bequests should be different from the rule applicable to gifts. We, therefore, recommend that in section 127, after the words 'or morality', the words "or to public policy" should be inserted.

After the proposed amendment, the section will read as under:-

"127. A bequest upon a condition, the fulfillment of which would be contrary to law or to morality or to public policy, is void".

1. Para. 21.5, supra.

21.8. Section 128-Fulfillment of precedent of vesting of legacy.- Section 128 reads:-

"128. Where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.

Illustrations

(i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with the written consent of B, C is present at the marriage. D sends a present to A previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition.

(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D, D dies, A marries with the consent of B and C. A has fulfilled the condition.

(iii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in the lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition.

(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C & D. A obtains the unconditional assent of B, C and D, to his marriage with E. Afterwards B, C and D capriciously retract their consent. A marries I". A has fulfilled the condition.

(v) A legacy is bequeathed to A on condition that he shall marry with the consent of B. C and D. A marries without the consent of B, C and D, but obtains their consent after the marriage. A has not fulfilled the condition.

(vi) A makes his will whereby he bequeaths a sum of money to B if B shall marry with the consent of A's executors. B, marries during the lifetime of A, and A, afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect.

(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The document is executed by A within a reasonable time, but not within the time specified in the will. A has not performed the condition, and is not entitled to receive the legacy."

The section needs no change.



The Indian Succession Act, 1925 Back




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