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Report No. 70

28.31. Verbal change needed.-

Only a verbal change seems to be required in section 25, to make it clear that it deals with a condition precedent. The general topic of contingent interest is dealt with in section 21 which, so far as is material, provides that "where on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property".

That condition is not confined to events independent of the will of the party-compare the illustrations to section 120 of the Indian Succession Act, illustrations (vi), (vii), (viii) and (ix). Accordingly, section 25 should also be taken as a species of contingent interest. We recommend that in section 25, for the words "and dependent upon a condition", the words "and intended to take effect on a condition" should be substituted.

28.32. Civil law.-

It would appear that the position in civil law is different with respect to legacies of a personal estate. The rule of civil law1 is, where a condition precedent is originally impossible or is made so by the act or default of the testator, or is illegal as involving malum prohibitum, the bequest is absolute just as if the condition had been subsequent.

But where the performance of the condition is the sole motive of the bequest or its impossibility was unknown to the testator or the condition has become impossible by the act of God or where it is illegal as involving malum in se, the civil law agrees with the common law in holding both the gift and the condition void. This rule of the civil law was applied in England in the case of Re Elliott,2 where the condition was not malum in se. The condition was avoided and the gift took effect free from the condition.

1. Jarman on Wills, 4th Edn., Vol. 2, p. 12, cited in Moors, (1888) 39 Chancery Division 116, 128.

2. Elliott (in re:), (1952) 1 All ER 145 (148).

28.33. Impossibility as known to the transferor.-

So far as impossibility is concerned, it is quite likely that if the transferor had known of the impossibility, he would still have maintained the transfer. Since, however, all such questions are difficult to determine on facts, the law seems to have treated all cases of impossibility on the same footing. In this connection, attention may be drawn to the more restrictive language in the first paragraph of section 56 of the Indian Contract Act, under which an agreement to do an act impossible in itself is void.

As regards supervening impossibility or illegality, that section (in its second paragraph) provides that the contract becomes void when the act becomes impossible or unlawful. The leading case on the subject is still the case of Satyabrata.1 a judgment of B.K. Mukherjea J., as he then was. The law on the subject would appear to be still "in the process of evolution"-a statement made by A.L. Corbin long ago, but still substantially true.2

1. Satiabrata v. Mugenee Ram, AIR 1954 SC 44.

2. A.L. Corbin Recent Development in Contracts, (1937) 50 Harvard Law Review 459, 465, 466.

28.34. Recommendation.- In the result, the only change needed is a verbal one already mentioned.1

1. Para. 28.31, supra.

28.35. Section 26.-

That the law has regard to the substance of the matter and not to its minutiae, is a principle often met with in judicial decisions construing statutory provisions. This principle, in its application to the vesting of property, finds express recognition in section 26. Accordingly, that section, in regard to conditions precedent, has regard to the substance and not to the form.

This is what the section provides-

"26. Where the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.

There are two illustrations to the section-

(a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition.1

(b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition."

1. This also illustrates partial supervening impossibility; contrast section 25.

28.36. Analogous law.-

This section closely corresponds to section 128 of the Succession Act, which runs as follows:-

"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 objections. 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 and 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 E. 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 bequeathes 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."

28.37. No change.-

Both the sections are based on the principle that vesting is favoured. The above discussion discloses no need for amending section 26.

28.38. Section 27.- Section 27 provides as follows:-

"27. Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.

But where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.

Illustrations

(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A's death, and if he should neglect to do so, to C, B dies in A's life-time.1 The disposition in favour of C takes effect.

(b) A transfers property to his wife, but in case she should die in his lifetime, transfers to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect".2

1. This is also a situation of supervening impossibility. It illustrates the first paragraph.

2. Illustration (b) illustrates the second paragraph.

28.39. Premises.-

In the case of Jones v. Westcombe, 1711 Precedents 316, the testator had bequeathed a term of years to his wife for life, reminder to the child with whom she was believed to be pregnant and if the child died under twenty-one, a third part of the term was to belong to his wife and the remaining two-thirds to certain others. Although the wife was not pregnant when the will was made, it was held that the devise to her was good. prima facie, the testator is deemed to have intended that the second gift should take effect upon failure in any manner of the prior gift, though this can be displaced by proof of a contrary intention.

28.39A. Comment on illustration.-

Illustration (a) to section 27 is the English case of Avelyn.1 In the case put in the illustration, failure of the interest sought to be created in favour of B is due to the death of B before time had arrived for performance of the condition laid down to avoid failure.

With this, one should contract the stricter approach adopted2 in regard to conditions precedent whose performance is impossible-in section 25. If the condition in section 27, illustration (a), is a condition precedent, then the question arises whether section 25 is confined to initial impossibility.

If section 27, illustration (a), is regarded as contemplating a condition subsequent, then the section does not appropriately cover them; see the word 'failure'. Conditions subsequent are dealt with in later sections. It would then appear that while performance of a condition inherently impossible is governed by section 25, performance of a condition which subsequently becomes impossible is covered by section 27.

Section 27, illustration (b) also is taken from an English case.3 It raises the interesting question of commorientes (persons dying in a natural calamity or other disaster, making proof of survivorship impossible). This topic has been the subject-matter of interesting debate and legislative reform in the law of evidence, and has also been considered in our Report on the Evidence Act.4

1. Avelyn v. Ward, (1750) 1 Ves 420.

2. Section 25.

3. Underwood v. Wing, (1885) 4 De GM&Y 633.

4. Report on Evidence Act, section 108A.

28.40. Valid gift.-

Section 27 of the Act (and section 129, Succession Act) seem to contemplate failure of a valid gift,1 otherwise the matter would be governed by section 16 of the Act (section 116, Succession Act).

1. Ismail Haji v. Umar Abdulla, AIR 1942 Born 155 (158) (Chagla, J.).



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