Report No. 110
III. Successive Bequests
21.9. Section 129 to 133.-
The same property may be the subject-matter of successive bequests. Subject to certain conditions, bequest of the same thing to one person, and thereafter to another person, is not prohibited. However, it becomes necessary to provide rules for working out the exact operation of such bequests. These rules are contained in sections 129 to 133. Such rules, are needed in order to deal with a variety of situations for example-
(a) where there is a failufe of the prior bequest (sections 129 and 130), or
(b) the subsequent bequest is dependent on a condition (sections 131 and 132), or
(c) the subsequent bequest itself is not valid (section 133).
No changes appear to be needed in these sections. But it would be convenient to draw attention to a few salient points, though of minor importance.
21.10. Section 131-Bequest dependent on a condition.-
Taking first, section 231 which deals with a bequest dependent on a condition, it would appear that if non-satisfaction of the condition (to be satisfied under the will for retaining a bequest) is no account of duress or other circumstances beyond the control of the legatee, then the bequest is not forfeited1-2.
The following passage from a judgment of Lord Campbell3 was cited in a Calcutta case4:-
"Had the Children been included in the arrest, I conceive that their residence abroad under continued duress would not have worked a forfeiture, and if their residence abroad may be fairly ascribed to the imprisonment of their father by Napoleon, the forfeiture might he saved on this ground, were there a necessity to resort to it."
1. Tin Couri v. Krishna Bhabini, 1894 ILR 20 Cal 15 (17).
2. Trevelyan Hindu Wills, (2nd Edn.), pp. 125, 126.
3. Clavering v. Ellison, 1 HL Cas 707 (723).
4. Tin Couri v. Krishna Bhabini, 1894 ILR 20 Cal 15 (17).
21.11. Section 132.-
As regards section 132, it is based on the rule that conditions subsequent which tend to the destruction of an estate already vested should be construed strictly.
21.12. Section 133.-
Under section 133, if the ulterior bequest is not valid, the original bequest is not affected "by it", i.e., by the invalidity of the ulterior bequest. The principle here is that specific estates which are good in themselves are not invalidated by a subsequent illegal disposition of the residue or remainder,1-2 and an interest is not taken away unless the gift over takes effect.
The first illustration to section 133 deals with the case of impossibility of fulfilling the condition on which the ulterior bequest would take effect. The second illustration deals with the case of illegality of that condition. The third illustration deals with the case of lapse.3 Invalidity could also arise by reason of vagueness and uncertainty of the bequest-though these situations are not illustrated in the illustrations4 to the section.
1. Khetter v. Gunganarain, 4 CWN 671, footnote discussing the case law, including Tagore v. Tagore.
2. Dhanlaxmi v. Hariprasad, ILR 45 Born 1038 (1044).
1. Some commentators regard it as a case of remoteness but it may be noted that section 105 is mentioned.
2. Halsbury's, 3rd Edn., Vol. 39, p. 923, para. 1396.