Report No. 70
Where a qualification is annexed to an interest which provides that the interest shall take effect if the qualification is fulfilled, the case is one of a condition precedent which we have so far discussed. On the other hand, there may be created an interest to which a qualification is annexed whereby it is provided that the interest shall be transferred if a certain event happens or does not happen. The former types of conditions were dealt with in the last chapter and the latter type of conditions are now to be dealt with.
They can also be called conditions subsequent-that, in fact is the terminology used in England, even where the interest entirely ceases and is not transferred to another person1. Conditions relating to events on the happening or non-happening of which the interest already created is directed to pass to another person, contemplate a prior disposition and an ulterior disposition2. The imposition of such conditions is permitted by the earlier half of section 28, subject to certain restrictions which are indicated in the latter half of that section.
1. Cheshire Modern Law of Real Property, (1972), p. 314, section 1.
2. For these expressions, see sections 29 and 30.
29.2. Section 28.- The section reads-
"28. On a transfer of property, an interest therein may be created to accrue to any person with the condition superadded that, in case a specified uncertain event shall happen, such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in sections ten, twelve, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five and twenty-seven."
29.3. Section 28-Case of duress.-
Section 28 contemplates a literal transfer on the happening or non-happening of a certain condition. Since this is a condition of forfeiture, it appears that if the condition cannot be fulfilled or is violated on account of duress, the forfeiture is not incurred. Thus, a testator by his will directed that if any of the female members of his family, either from misunderstanding or any other reason, should live in a place other than a holy place for more than three months except for pilgrimage, they should forfeit the rights under the will.
The plaintiff, a widowed daughter-in-law of the testator and minor, was removed from the house of the testator by her maternal relations and brother with the aid of the police and had to reside for more than three months with her mother. It was held1 that although the police help was properly and legally given, this was a plain case of duress at the time of leaving, and ought not to attract forfeiture.
1. Tin Cowri v. Krishna, ILR 20 Cal 15 (17).
Since the insertion of a condition subsequent has a divestiture effect, the law considers it desirable to provide that the condition must be strictly fulfilled. This is another example of the anxiety of the law to favour the vesting of estates and the preservation of estates already vested.
29.4A. No change.- No change is needed in the section.
29.5. Section 29.-
While in the case of a condition precedent, substantial compliance is enough, the reverse is the position in the case of a condition subsequent. It is on this principle that section 29 provides that an ulterior disposition of the kind contemplated by the last preceding section cannot take effect unless the condition is strictly fulfilled.
In the illustration to the section, A transfers Rs. 500 to B, to be paid to him on his attaining his majority or remarrying, with a proviso that, if B dies a minor or marries without C's consent the Rs. 500 shall go to D. B marries when only 17 years of age, without C's consent. The transfer to D takes effect.
29.5A. Analogous law.-
This section and its illustration correspond to the section and illustration (iii) of section 132 of the Succession Act, which extends the same rule to bequests. The illustration to section 29 is adapted from the three illustrations to section 132. The English cases lay down an identical rule and furnish apt illustrations of the doctrine here codified1.
1. Clavering v. Ellison, 7 HLC 707; Kiallmark v. Kiallmark, 26 LT Ch 1; Harvey Bathrurah v. Stanley, 4 Ch D 272; referred to in Gour.
This is in accordance with the English law where it is held that a condition subsequent must be strictly fulfilled1. It will not occasion forfeiture if the fulfilment of the condition becomes impossible2, if it is reasonably fulfilled3.
1. Wagstaff v. Crossly, 2 Coll 746; Sander's Trusts (in re:),.1 Eq 675; Clavering v. Ellison, 4 Drew 451: 7 HLC 707.
2. Brown's Will (in re:), 18 Ch 661.
3. Astley v. Earl of Essex, LR 18 Eq 290; Wynne v. Fletcher, 24 Beav 430.
29.6A. No change in section 29.-No change is needed in the section.
29.7. Section 30.-
Cases may arise-these are taken care of by section 30-where the same transfer makes a prior disposition which is valid and an ulterior disposition which is not valid. In conformity with the policy of the law that what is vested ought not be divested or affected by collateral factor unless there are weighty reasons, the provision in section 30 is to the effect that if the ulterior disposition is not valid, the prior disposition is not affected by it.
The illustration is as follows-
"A transfers a farm to B for her life, and if shes does not desert her husband to C. B is entitled to the farm during her life, as if no condition had been inserted."
This section and its illustration correspond to section 133 and illustration (ii) of the Succession Act, which run as follows:
"133. Original bequest not affected by invalidity of record-If, the ulterior bequest be not valid, the original bequest is not affected by it.
(i) An estate is bequeathed to A for his life, with a condition superadded that, if he shall not, on a given day, walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the will.
(ii) An estate is bequeathed to A for her life, and if she do not desert her husband, to B. A is entitled to the estate during her life, as if no condition had been inserted in the will.
(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the testator's death, had not had a son. The bequest over is void under section 105 and A is entitled to the estate during his life."
29.8. No change.- No change is needed in the section.