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Report No. 70

30.6. Case law.-

There have been many cases in which the Courts, in construing a deed of gift or a will, have found that the earlier clauses of the document if read by themselves and without reference to the rest of the document would confer an absolute estate, but that subsequent clauses if, read with the earlier clauses, indicate that the intention of the donor or testator, as the case may be, was that the donee should have such a degree of power of disposing of the estate as should not be inconsistent with the subsequent enjoyment of the second donee on the happening of the specified uncertain event.

The earliest, of these cases was that of Bhoobun Mohini Debia v. Hurrish Chunder, (1879) 4 Cal 23: 5 IA 139: 3 Suther 537: 3 Sar 815 (PC)., where a Hindu granted a talook to his sister, K by a sanad in the following terms:

"You are my sister; I accordingly grant you as a talook for your support the three villages H, P and K, belonging to my zamindari, with all rights appertaining thereto at a jama of Rs. 361. Being in possession of the lands and paying rent according to the tabutjarna, do you and the generations born of your womb successively enjoy the same. No other heir of yours shall have right or interest."

The opinion of the Privy Council, delivered by Sir Robert Collier, was that these words, had they stood exclusive of the last sentence, would have conferred an absolute estate upon K, but the last clause cut down this gift so that in the event of failure of issue living at the time of her death, the estate was to revert to the donor and his heirs, that there was nothing in the condition repugnant to Hindu law, and, that as the uncertain event contemplated had not occurred, K, the sister was able to dispose of the property by Will.

30.7. In Sreemutty Soorjeemoney Dossoy1, a Hindu testator governed by the Dayabhaga law devised all his real and personal estate among his five sons in equal shares The will contained the following clauses:

should any among my said five sons die, not leaving any son from his loins, nor any son's son, in that event neither his widow nor his daughter nor his daughter's son, nor any of them will get any share out of the share that he has obtained of the immovables and movables of my said estate. In that event, of the said property, such of my sons and my son's son as according to their respective shares."

On the construction of the will that the uncertain event was a failure of male issue of any one of his sons at the time of the death of that son, it was held that the gift over was not inconsistent with the general principles of Hindu law, and therefore the gift over was valid. The precise terms of the first gift are not described in detail in the report.

This case2 was explained by the Privy Council in the subsequent case of Kristoromoni Dasi3.

1. Sreemutty Soorjeemoney Dossoy v. Denobundoo Mullick, (1861-63) 9 MIYA 123: 1 Sar 837 (PC).

2. Sreemutty Soorjeemoney Dossoy v. Denobundoo Mullick, (1861-63) 9 MIYA 123: 1 Sar 837 (PC).

3. Kristoromoni Dasi v. Narendro Krishna Bahadur, (1889) 16 Cal 383-16 IA: 29-5 Sar 285 (PC).

30.8. In stating the rule relating to the defeasance of a prior absolute interest by a subsequent event, it is important to add, first, that the event must happen, if at all, immediately on the close of a life in being at the time of the gift, and, secondly, that a defeasance by way of gift over must be in favour of somebody in existence at the time of the gift.1

1. Jotendromohan Tagore v. Gunendra Mohan Tagore, 1872 IA Supp Vol. 47-49: Beng LR 377: 18 WR 359: 2 Suther 692: 3 Sar 82 (PC).

30.9. No change.- No changes are needed in the section.

30.10. Section 3-Invalid condition.-

Under section 32, in order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest.

30.11. Principle.-

This section is the same as section 135 of the Succession Act. The section merely lays down that a condition must be valid before it can operate. Section 25 enumerates the conditions that are valid. An invalid condition precedent invalidates a transfer, though an invalid condition subsequent does not.

30.12. No change.- The section needs no change.

The Transfer of Property Act, 1882 Back

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