SECTION 25
Section 25 - Conditional transfer
CONDITION 3 TYPES 1. CONDITION PRECEDENT 2. CONDITION SUBSEQUENT 3. CONDITION COLLATERAL
1. 2. 3. 4. 5. 6.
According to section 25, an interest created on a transfer of property and dependent upon a condition fails under the following conditions:Impossible condition Forbidden by law Defeat the provisions of any law Fraudulent Involves the injury to the person or property of another Immoral or opposed to person or property of another.
SECTION 26
Fulfillment of condition precedent This section is based on principle that law leans in favour of vesting of the estates.
English Doctrine of cypress
When literal performance of antecedent condition is rendered impossible for some reason ,substantial performance in conformity with the original intentions of the transferor will suffice.
Beni Chand v Ekram Ahmad, Agreement between A, a widow on one side & B,C & D on other ,it was agreed that A should not transfer property without consent of B,C & D and A transferred her property with the consent of B, the other two being dead at that time, it was held there was no substantial compliance.
SECTION 27 – RULE OF ACCELERATION
This section deals with the second transfer on the failure of a prior valid transfer.
Section does not apply unless the prior and ulterior disposition refer to the same interest.
Full v Jacobs
This section has to be distinguished with section 16 which states that if the prior transfer fails with due to the violation of section 13 and section 14, then the transfer that was to take effect upon the prior transfer would also fails.
As per this section if the prior interest fails the subsequent interest is accelerated that is it takes effect although the first transfer might have failed.
EXCEPTIONS 1. Where the prior interest is void the ulterior interest dependent upon it also fails. Eg., A transfers property to B on the condition of B murdering C and then to D.
2. Where the intention of the transferor is specific and clear that the second transfer would take effect only when the prior interest will fail in a particular manner. Eg., A transfers property to his wife but in case she dies in his life time, transfer to B that which he had transferred to her. A and his wife died an accident, it was impossible to prove she died before him. So the disposition in favour of B does not take effect.
Under Section 129 of the Indian Succession Act also Rule of Acceleration is enacted.
SECTION 28 THE DOCTRINE OF CONDITIONAL LIMITATION
Condition subsequent – A transfer which is absolute in the first instance may be made subject to the a condition that it shall be cut down or divested on the happening of a contingency. Such condition is called a condition subsequent.
Condition limitation – A transfer may also be made subject to a condition that, on the happening of a contingency the interest created shall not only cease, but it shall pass to another person. Such condition is, so far as prior interest is concerned, a subsequent, but is, so far as the ulterior transfer is concerned a condition precedent. Such a case is known as condition limitation.
Exceptions
Section 28 is subject to the rules
Restraint of alienation [s.10] Restraint on insolvency [s12] Contingencies [s.21-24] Condition precedent [s.25] Doctrine of acceleration[s.27]
Section 31 deals with Condition Subsequent and Section 28 deals with Conditional Limitation. SECTION 29 – An ulterior disposition contemplated by section 28 cannot take effect unless the condition is strictly fulfilled.
Section 30 – prior disposition not affected by invalidity of ulterior disposition This section lays down that if the ulterior disposition is not valid, the prior disposition is not affected by the invalidity of the subsequent disposition.
Section 31- condition subsequent This section states that an interest may be created on a transfer of property with a superadded condition that interest shall cease to exist – 1. In case a specified uncertain event shall happen 2. In case a specified uncertain event shall not happen.
Distinction between Sec 31 & Section 28 is that while later deals with the case in which on happening of contingency the first transferee’s interest ceases and passes to second transferee, this section refers to mere end of transferees interest on happening of a contingency in which case property will revert back to the donor.
This section is subject to section 12 of the Act. Section 32 provides a condition would be void under section 25 as a condition precedent is void under this section as a condition subsequent.
Section 32
Illustration
A transfers his land to B ,with a condition that if B does not set fire to C’s hay stack within a year ,his interest shall cease. The condition subsequent is invalid and B’s interest is not affected.
Section 33 – no time for performance mentioned
Section 33 deals with a condition where no fixed time is mentioned for the performance of a condition subsequent. The person who has to perform the condition and who is to take interest created, does some act by which the condition becomes impossible to perform or its performance is permanently postponed, the condition subsequent is broken.
Section 34 – Time for performance specified
This section lays down where if the performance of the condition, whether subsequent or precedent, is prevented by a person interested in its non fulfillment, the delay is executed and the condition is discharged.
Principle
No party can take advantage of his own fraud. If performance of a condition whether subsequent or precedent ,is prevented by a person interested in its non fulfillment ,the delay is excused, and condition is discharged.
1.
2.
This section is based on the two principles: Mullus commodum capere protested injuria sua propria – no one can take advantage of his own wrong. Raus et nemini patrocinari debent – fraud and deceit ought not to benefit any person.
Section deals with two class of cases: 1. Where time is specified for performance and condition is prevented by fraud of person directly benefitted by non fulfillment of the condition. 2. where no time is specified and fulfillment of condition is rendered impossible or is indefinitely postponed by fraud of person interested in non fulfillment of condition.
Illustration
A testator directed that if any of the female members of his family lived for more than three months at any place other than holy place they would forfeit their interest under his will. The forfeiture was not incurred when they were forcibly removed by their relation.
