S.

19 TRANSFER OS PROPERTY BY ACT OR PARTIES 99

uncertain.& So also trust created for the purpose of
a
Hinduism
1s invalid on the same ground of uncertainty of object but a trust created for
spreading
spreading Sanskrit has been held to be valid because the object is certain and
not vague. 89 Political objeets are not charitable object.
S. 19. Vested interest.-Where on a transfer of
property au inierest
therein is created in favour of a person without specify ing the time when it is to
take effect, or in terms specifying that it is to take effect forthwith or on the
happening of an event which must happen, such interest is vested, unless a con-.
trary intention appears from the terms of the transfer.
A vested interest is not defe ated by the death of the transferee before he
obtains possession.
Explanation.--An intention that an interest shall not be vested is not to be
inferred merely from a provision whereby the enjoyment thereof is postponed,
or whereby a prior interest in the same property is given or reserved to some
other person, or whereby income arising from the property is directed to be
accumulated until the time of enjoyment arrives, or from a provision that if
particular event shall happen the interest shall pass to another person.

COMMENTS: Scope of the section-This section and the correspon-

ding section 119 of the Succession Act, 1925, deal with the question under
what circumstances a person obtains a vested interest or immediate right on
a transfer of property It provides that unless a contrary intention appears
from the terms of the transfer. a person gets a vested iaterest when
it is created in his favour-
(1) without specifying the time when it is to take effect; or

(2) in terms specifying that it is to take effect forthwith; or

(3) in terms specifying that it is to take effect on the happening of
an event which must happen.
N o time mentioned.-If a property is transferred by A to B and the
deed of transfer deed does not meation the exact time from which the transfer
shall come into effe ct, it is normal coastruction of law that in such a case the
transferee gets vested interest. For example, A sells his house to B. B gets
vested interest from the éay of sale. He gets right at once though possession
him immediately.
may not be given to
(ii)
Forthwith.-The second situation giving birth to vested interest con-
transfer mentions clearly that the transfer
sists in those cases when the deed of
take effect at once and forthwith. With such a thing betng clearly
is to
interest alone.
mentioned, the deed conveys vested
Certain event.-The third situation of a vested interest occurs in
(iii made to depend upon some
those cases when the operation
The
of event must isbe
the transfer
clearly explained. and
certain event.
specified be only of time. matter
legibly fixed and its occurrence should
a

as to must happen. Interest that is dependant upon

It should be of a nature vested one.
For examples transfer to B if A dies,
as a
such event is classed

Parvati, ILR 23 Bom 725: Parthasarthy

v. Thiruvengada, 30 Mad
88. Ruachordas v.
340.
Venkata v. Subba Rao, AIR 1923 Mad 376.
89
Subhaschandra Bose v. Patel, ILR 1940 Bom 254.
90.
 100 TRANSPER OP PROPERTY ACT
Is. 19
at sunset or sunrise.
or
There are events which are both () specified (il.
certain. Therefore transfer to B conveys vested interest. and
(a) Enjoyment
postponed.-A condition postponing enjoyment
prevent the interest vesting immediately; but it is itself void for repugnan
after the transferee has attained
cannot
majority. ancy
llustration
A transfers
property to B in trust for C, and directs B to
of the property to C when he
attains the age of 25. give possessinn
and is entitled to Chas a vested
pOSsession the age of 18.
at interest
In the leading case of
of this Court has always been to Gosling.91
Vice-Chancellor Wood said,' The
the age of 21 to enter
upon
recognise the
the absolute use right of all persons whopractice
attain
given to them by will, and
enjoyment of the
propertv
effect that they are not to notwithstanding
any direction by the testator
the property is enjoy it until a later
age unless, during the
to the
given for the benefit of another." interval.
In India, the similar rule has been
numerically fixed as above. The accepted except that there is no
interest may be period up to which the limit
postponed is a matter of fact for the enjoyment of a vested
parties to decide.
llustration
A executed a deed of gift in favour of B, but
takepossession of a directed
that B
wife. B has a ves ted
portion of the property until after the deatins of was not to
interest, enjoyment only being postponed. A and A 's
(b) Prior interest.-A prior interest
subsequent does
fund is interest. Section 13 provides a not postpone the vesting of the
given to A for life, and after deathspecific example such rule. A
to B. On the of
the legacy to B becomes his
vested interest in B. The testator's death
refers to the time when the expression "after his death"
time when the interest gift becomes reduced to
wife a lite estate and aftervests. In Rewun
Prasad's
possession, and not to the
her death one share of case93 the testator gave his
and the other share to his the es tate to his brother
the widow, but as their sons C and D. B and C die B,
shares were vested, and as C and D during the lifetime of
common C's widow was
entitled took as tenantsin
to succeed to C's share.
llustration
Property is settled in trust to A for life
pay A Rs. 2,000 a year out of the rents and with a direction to the trustees to
the discharge of a mortgage ; ard after A's profits and to apply the balance to
Although B may not survive A, yet B's interest death to convey the land
is vested in A's lifetime."
to b.
(C) Accumulation of income.-A
direction for accumulation of income i
In excess of the period sanctioned by the Section 17 is invalid for the excess.
Within the limits
sanctioned by the section it is a provision
ent or enjoyment, and as such it does not postpone the for the postpo
interest. vesting or
91. Gosling v. Gosling (1859) Jobus 265 Re Johnston,
92. Lachhman v. Baldeoi 48 IC
(1894) 9 Ch. 204.
396
93. Rewun Prasad v. Radha
Beeby, {1846) 4 MIA 137.
94 Uzoe v. Ma Mya May. 1930) 127 1C 170.
S. 19] TRANSFER OB PROPBRTY BY ACT OP PARTIES 101

d) Conditional limitation.-A provision that if a particular event sha

happen the interest shall pass to another person is what is called in English
law a conditional limitation. A conditional limitation divests an estate which
has vested and vests it in another
person A condition subsequent divests an
estate which bas vested and revests it in the grantor. Section 28 deals with
Conditional limitations, whereas conditions subsequent are dealt with in
Section 31.
An interest whether vested or not-Test:
Whether an interest is vested or otherwise, depends on the intention of
the person creating the interest. Such intention must, however, be
from the language employed by the grantor in the grant,
gathered
giving the plain and
natural meaning of the words used by him. The docunment must be
as a whole giving attention to
construed
every provisions therein. An interest is said
to be vested when it is subject to any condition
precedent-when it is to take
effect on the happening of an event which is certain; whereas an estate is
contingentwhen the rigbt to enjoyment depends on the happening of an
uncertain event which may or may not happen. A person takes a vested
interest in the property when he acquires a proprietary right in it but the
right of enjoyment is only deferred till a future event happens which is certain
to bappen ; but contingent interest is one in which neither
any proprietary
ight nor a right of enjoyment is given at present, but both depend upon future
uncertain events. Thus, if a Hindu widow adopted a son but there was an agree-
ment postponing the son's estate duringg the lifetime of the widow, the
interest, created in favour of the adopted son is a vested right ; it does not
depend upon any condition precedent i. e. the performance of an act; it is to
take effect on the happening of an event which is certain (i. e. widow's
the adopted son has a present proprietary right in the estate, the right of
death)
ment and possession being deferred, and therefore, he
enjoy
can fransfer the property
during the widow's lifetime. Unless otherwise prohibited to do so by any
other law to which he might be answerable. But where an estate is conveyed
to A until he shall marry, and after that event to B, B's interest in the
transfer is contingent because it depends upon a condition_precedent, viz., the
marriage of A, an event which may or may not happen. B has at present no
proprietary interest in the estate, and he cannot alienate it. But as soon as A
marries, the contingent interest of B becomesa vested interest. In a contin
gent interest, the transfer is not complete until the specified event happens or
does not happen. In a vested interest it is complete, but on the happening of
a specifed event it may be divested.7 A vested interest is heritable,i divisible
and transferable.9
One of the features of a contingent interest is that if a person dies
before the contingency disappears and before the vesting occurs, the heirs of
such a person do not get the benefit of the interest.
Time of vesting-As soon as the transfer is complete the interest vests.
Words are to be construed according to their ordinary meaning and no parti.
calar form of words is necessary to effect a vesting.
Contrary intention-The grantor has liberty to specify the time of vesting

95. In re Deao. (1899) 41 Ch. 35.

96. 40 All 692.
97. Festing v. Allen, 5 Hare 573.
Blokassee Dasee v. Darponarain, 5 Cal 49.
Soorjeemoney v. Deriobandbu. 9 MIA 123.
 102 TRANSFER OF PROPERTY ACT

for under Section 5, a transfer may

not be only in present but also in c
But the time of vesting cannot be beyond the
perpetuity. in Wrightson's case, the testatorperiod
by
allowed by the iul.uture
that no devisee should have a vested
attainment of the age of 24. This
a codio
dicil to his will
interest or be en titled dire
to Dos secrected
against
given in the will. prov1sion invalidated 1the future n until
inte
Death of transferee.-When
transferee and is under Sec. 6,interest is vested it becomes the prone
an
of the
obtained possession; for a transfer oftransferable by him even before perty
If the transferee dies, his property not in he has
interest possession is
he has obtained
possession.
vests in his
representatives whethereffective
or not
Rajes Kant Roy v. Santi
contingent interest. In this caseDevi,3 is a
father supreme court decision on
sons. The
settlement provided that the settled the property on vested o
in the property sons would obtain
his two minor
upon the death of the
encumbrances. The Supreme transferor and after absolute intereat
though enjoyment was Court held that sons discharging
got a vested all his
temporarily postponed. interest.
Hindu Law and Muslim
applicable to Hindus. law.-The amendment
under Hindu Law. In Gosling v. of Sec. 2 makes Sec. 19
Gosling has been followed
estate to his sons and Ram Kumar v. Atma in cases
decided
life time. Held that directed that the wido'w should
Singh," the testator devised his
widow was given no the estate vested immediately in manage it during
the sons and her
On the other prior interest they were entitled to as the
hand, in Sriniyasa v.
with a direction
enjoy the Dandapani," that was a immediate
income transfer to possession.
The daughter took a
vested interest
and pass the
corpus intact
a
to
daughter
son who but the direction was her son.
pre-deceased her took no interest at
Hindu law that the creation all. It has alsoineffective and the
the vesting in of partial trusts and charges will been held under
possession. not
postpone
Sunni Law does not
There is some doubt as recognise an estate for life with a vested
the decision of the to whether the law on this remainder.
Privy Council. It led
point has been altered by
Bombay case. Such to a
difference of opinion in a
vested remainder is estates are recognised in Shia law. A life
Wakf Validating Act, recognised both by Shias and Sunnis and estate with a
1913, in the case of wakfs. by the Muslim
S. 20. When unborn
person acquires vested interest on
benefit.-Where
benefit of
on a transfer
of property an interest transfer for his
a
person
not then therein is created for the
intention appears from the living. he acquires upon his birth, unless a
may not be entitled to the
terms of the transfer, a contrary
vested interest, although
enjoyment thereof immediately on his birth.
COMMENTS
person vests as soon asScope.-An interest created for the benefit of an
that person is born. Thus if A settles property on unborn
self and his intended wife for their
joint-lives him
their marriage, the, son takes a vested interest as and then on the eldest
son
soon as he is bora. It matEGIS
1. In re
Wrightson, (1904) 2 Ch. 95.
2. 1957
SCR 77: (1957) ASC 255 1957 SCJ 197: 1957 SCA 440,
3. Ram Kumar v.
Atma Singh, (1927) 8 Lah 181.
4. Srinivas v.
Dandayudapani, (1886) 12 Mad 411.
5. Amjad Kban v.
Ashrai
6. Racol Bibi v. Yusuf Khan, (1929) 56 IA 213 4 Luck 305.
Ajam, (1933) 57 Bom 737.
 S. 21] TRANSFER OF PROPERTY BY ACT OF PARTIESs 103

not that he is not entitled to possession during the lifetime of his parents. Nor
Will the vesting be affected by the provision that if his parents die during his
minority the trustees should not deliver possession to him until he attains
marilyA bequest is made in favour of T for life and thereafter to the
children of 7 absolutely. T is married and a daughter, named K, is born to
nimThe daughter, Kpredeceased 7T. Thereafter T, by a will bequeaths the
property absolutely to X. In such a case, K acquires a vested interest in the
property by hirth. T, being K's heir gets absolute title to the property and,
therefore, the bequest by T 1s valid.?
S. 21. Contingent interest.-Where, on a transfer of property, an interest
fherein is created in favour of a person to take effect only on the happening of
of
a specified uncertain event or if a specified uncertain event shall not
happen
such person thereby acquires a contingent interest in the property. Such interest
becomes a vested interest in the former case, on the happening of the event , n
the latter, when the
happening of the event becomes impossible.
Exception.-Where, under a transfer of property,age,a and
ed to an interest therein upom attaining a particular the becomes
person entitl-
transferor also
ives to him absolutely the income to arise from such interest before h: reaches
that age, or directs the
income, or so much thereof as may be necessary to be
applied for his benefit, such interest is not contingent.
COMMENTS Contingent interest.-The section The
gent interest is and when such interest becomes vested. defines what"is created
words contin-
a

in favour of a person to take effect

only on the happening, of a specified
uncertain event" etc., show that an estate or interest is
contingent when the
vesting is to accrue on an event which is dubious or uncertain. Where a right
accrues immediately but the
enjoyment of the interest is postponed to a future
day, the interest is vested and not contingent.The test, therefore, to see whether
an interest created is vested or
contingent is to see whether there is an imme-
diate right of present or future enjoyment, or whether the right itself is to
accrue on the haPpening of an uncertain event.

Illustrations
(1) A grant provided that on the death of the last surviving widow of
the late Raja of Tanjore, his daughter or failing her the next heir. if
any,
should inherit the property. It was held by the Privy Council that until the
death of the last surviving widow, the interest created in favour of the
was only contingent on her surviving the last widow. daughter
(2) X promised A, B and C, Rs. 1000 each to be paid to them on the
occasion of their marriage. It was held that the gift was contingent upon
their marriage taking place. A and C married before the X's death, and the
contingency contemplated did not therefore happen, with the result they did
not take. B married after the death, and on such marTiage, the gift became a
Vested one.
(3) A transfer was made ""to A for life, then, to her adopted son ;if she
dies without adopting any body then to B and her sons." B predeceased A. It
was held that B had only a contingent interest the contingency being that A
should die without making an adoption.0
1. Nusserwanji v. Gurcher, 1946 Bom 134.
8. Mahitai v. Sundaram Ayyar, 1936 PC 11.
9. Abdul Sakur v. Abubakar Raji Abba, 1930 Bom. 191
10. Natwarlal Girdharilal v. Ranchood Bhagwandas, 1920 Bom. 295.
 TRANBFER O PROPBRTY ACT
104 S. 21
4) A makes a gift in favour of his sons with a condition that if-
of them dies leaving no male, issue, his share will be taken by the othany one
In such
case, the and
not by the widow daughter of the
or deceased son. a
creates a contingent interest.11 gift
Contingent interest is a transferable interest-A contingent interess
being a mere possibil1ty. is a well recognised form of property which isc not
apable
of being transferred. Such a transfer would effectually pass to the transfere
all theinterest which the transteror possessed when the
and the interest vested in possession. contingency happen ened
But though a contingent
fer inter vivos it cannot be
interest can be made the subject of a valid trams
made the
proceedings12 [vide Sec. 60, sub-section subject of a forced sale in
(1), Cl. (m), Code of Civil attachmens
It has been held that a
contingent interest 1s not an existing right Procedurei
never ripen into an existing
right, and is not a suficient interest and mav
action for declaration of right.13 to ground

Spes successionis.-The chance of an

as heir or other mere possibility heir-apparent
of a like nature is
to succeed to a persaon
within the meaniog of this section. not a
"contingent interest
Death not an uncerain event, but
death of a person is not an uncertain survival at death of another is.--The
created to take effect on the death event, but is a certain one. An interest
gent one, but is a vested interest. of another person is,
the death of another The survival or therefore, not a contin.
is, on being alive of a person at
quently a transfer to a persontheif he
other hand, an uncertain
survives or is alive at the event and conse
creates only a death of another
contingent inter est.
Transfer
to person at
particular
effect.upon his attaining a
till he attains that particular age age.-A
gives
transfer to a person to take
him only a
decided contingent interest
age. The question is to be
intention of the transferor having regard to the
circumstances.
as
expressed by the words used
by him and by other
A
certain sum of money is
age of 18" or "when he shall transferred to A in case he shall
attain the age of 18". attain the
contingent interest was given. It is Held, in both the cases
a transfer is
at "a given
age" or "uponordinarily a contingent interestgiven
attain" or 'after his attaining'" or as the transferee sna when
attaining certain age", is made.
In England, it has
been
attain a particular age, is onlyheld that a gift to such a
class of persons. as sha
gift was made to A for a
contingent gift. In Festing's case,4 where
age of 21 years, it was life, and then to such of her children as shall
gent interest. In Ma held that the gift to the children created
attain
Yait's casel" whereunder a only a con
Created in
cst child favour
of all the settlement of an interest
attained the age ofchildren of the settlor to take
effect after the yo
20, it was held by the
l1.
Privy Council thar until u
Soorjeemoney
347.
v.
Tenobandhu, 9 MIA 123 d
Guruswami v. Sirakami, ILR 8
12.
Fernando v. Gunatilolaka, 1921 PC 138.
13. S. C Deb
v. B. K. Deb, 35 Cal
14. Festing 777.
15. Ma Yait
v.
Allon, (1843) 152 ER 1204.
v
Oficial Assistancs. 1930
PC 17.
s. 21] TRANSPBR OF PROPBRTY BY ACT OF PARrIES 105

the youngest child attained that age the children had only a contingent interest
in the property.
Contingent interest when becomes vested-An interest contingent on u
happening of a specified event becomes vested on the happening of that event.
If the contingency becomes impossible, the interest never comes into effect.
An interest, to take effect if a specified uncertain event shall not happen, wil
become vested when the happening of the eveLt becomes impossible.

Distinction between the vested and contingent interest-The distinction

between a vested and a contingent nterest may seem simple but in practice it
1S not always easy to distinguish the one from the other. The dificulty arises
from the fact that a vested interest is not necessarily in possession. An interest
may be vested and not yet in posession in any one of the three classes referrea
to in the Explanation, i. e., (1) by a provision postponing enjoyment, or (2) by
the intervention of a prior interest, or (3) by a provision for accumulation
Again an interest may be vested although, it is liable to be divested by a con
dition subsequent. The difference between a condition precedent and condition
subsequent is that when the condition is precedent the estate is not vested in
the grantee until the condition is performed. but when the condition is sub-
sequent the estate vests immediatelyin the grantee and remains in till the
condition is broken. Conditions subsequent are dealt with in sections 28 and
arises most
31. The question whether an interest is vested or contingent
frequenty in wills.
llustrations
A husband transfers his property to his wife for her life and after
(1)
her death, the sons born to them will take the property absolutely. In such
a
case, the sons would acquuire the vested remainder in the property.14

A bequeaths to B 100 rupees, to be paid to him at the death

(2)death C of
On A's the legacy becomes vested in B, and if he dies before C,his repres-
entatives are entitled to the legacy.
to B 100 rupees,to be paid to him on attaining majority
(3) A bequeaths In this the interest is one of
becomes vested.
(18) On A's deata the legacy
which the enjoyment is postponed.
and after his death to B. On the
(4)A fund is bequeathed to A for life, a prior interest intervenes,
testator's death the legacy to B becomes vested. Here
determination of that prior interest at a certain
but the legacy is vested as the
event.
B attains the age of 18 and then to
(5)A fund is bequeathed to A until testator's death.
vested interest trom the
B. The legacy to B is
his attain-
that B's interest was contingent on
Here it might be supposed to A for a term of years with
the of 18, but it is construed as a gift to English
ing age of real estate known
remainder to B. This is applied to device that the law
in Boraston's case. It rests on the principle
lawyers as the rule
estates.
fa vours the vesting of
that the legacy or gift is to be
in his legacy or gift directs
a case, the direction will
A testator not
debts are discharged. In such
given after the 2 Mad LJ 47.
Padayachi, (1958)
16. Adimoola v. Pavadai
19.
17. Boraston's case, (1887) Co. Rep.
106 TRANSFBR OF PROPERTY ACT
S. 21
make the legacy or gift contingent, if it (the gift or
legacy) is
vested.1 otherwise
Contingent and vested interest--Distinction
- .

Vested interest
Contingent interest
1. Definition
Where on transfer of property
a person
an interest therein is created in
favour of
() without
specifying the
time when it is to take t) to take effect
pening of
only on the
hap.
effect, or a
specitied uncertain
event, or
(#) specifying that it is to take
effect forthwith, or (Gi) if a specified
may or may nct;uncertain event
thereby acquires such a
person
interest in the contingent
property.
(iit) on the happening of an
event which must happen,
such interest is vested.
2 Fulfilment of condition
Does not depend the fulfil
ment of any condition;upon
it creates an
Is solely dependant upon the ful-
immediate right though the filment of the
may be postponed to enjoy- that if the condition, so
a future date. condition is not
fulfilled, the interest would
fail.
3. Effect of transferees death
Not defeated by death
feree before he obtains of trans- Cannot take effect in the
possession. event of
transferee's death before
4.
fulfilment of the condition. the
Whether transferable or heritable
(a) It is
both transferable as well )Is
as heritable. transferable able.
but not herit
(b) If transferee of vested in-
a
terest dies before actual (b) It is incapable of descending
enjoyment, it passes on to his to the heirs.
heirs.
5.Present right of
enjoyment-
In a vested
interest
present immediate right even there
when
is a
its
There is no present right; there
enjoyment is postponed. is a mere promise for giving
Such right and such promise
may be nullified by the failure
of the condition.
18.
Ragunatha v. Mobana Krishna, AIR 1926 Mad 645.
 S. 22] TRANSFER OF PROP8RIY BY ACT OF PARTIES 107

Exception.--An interest is not contingent when the transferee by the

terms of the transfer is entitled to it on his attaining a particular age if at the
same time the transferor; either-

(1) gives him absolutely the income to arise from such interest before
he reaches that age, or

(2)fordirects the income or

his benefit.
so much thereof as may be necessary to be

applied
The exception as stated in Pearsons's casel® is based on the principle that
where the principal is given at a distant epoch, and the whole income is given
in the meantime, the court leaning in favour of vesting has said that the whole
or gap, which separates
the gift
thing is given; but if there occurs an interval
of interest from the principal, it is not vested.
llustration
under a
to his wife J, for her lifetime
A husband gives certain properties
Takshimnama the deed providing, "that
the properties shall devolve upon my
after genera-
absolute owner, generation
nephew B, or his legal heir, shall, as
porperties.........in the possession
possession..........of all the
tion remain in death". B sells the property and dies
of my which he will get on her
wife, J of the
of J. The reversioner brings suit for possession
during the lifetime to an end on his death
B's interest was contingent and came
properties. Held interest is created in respect
of such person as
J20 Here an
during lifetime of death of J.
shall be surviving at the
exception to
the Indian Succession Act, 1925, illustrates
Section 120 of two things when contingent may
Sec. 21. The exception requires either of the direction
of the interestin a secondly, involves
a
or
vested interest. First, gift property aan
be treated as
it. The gift of interest
part of ot the property is immediately
set
to apply whole or reason that part
immediate gift for simple
for this purpose.
when he shall for his the
attain age
A transfers to B Rs. 50,000 applied benefit
Example: (a) interest thereof
shall be
and directs that the vested interest.
of 18 years, that age. It conveys
until he reaches contingent in following
the interest shall remain only age of 18, and
against this attain the
(b) As
Rupees when he shall for his mainten-
A transfers to A 500 shall be applied
when another fiund income is of another
fund
certain sum out of
case
directs that a In this case the
age.
he arrives at that not apply.
ance until exception
does as it happens
therefore, the apply to gifts to a class
may to a contingent
of the exception extended to a gift
The principles cannot be
principle
English Law but the
in age.
attain a particular
class.
members of
a who
class is created in favour of such
to therein does nof
S. 22. Transferproperty. an interest
age,
such interest
transfer of attain a
particular
Where, on shall attained that age.
class as has not
members only of a class wh0 to take effect
of the person
transfer to
member a
a interest which
Vest in any
According to Sec. 21
him only a cotingent
COMMENTS:
gíves
particular age
attainiaga
upon his
LR 3 Bq 315. 247.
Porsoa v.
Dolamab,
AIR 1937 p.
19. Jagadeshwari,
Chandra v.
70, Ram
 108 TRANSFER OF PROPBRTY ACT

becomes vested only on his attaining such age. This S. 23

of the same principle to transfer section is an
members of a class as shall attain a creating interests in favour ofapplication
on the
members attaining a particular particular age. The transfer is only such
age and the
any member of the class
who has not attained that
applicable only where an interest has been created in age. The section vest iis
contingent
of a class who attains a favour of: such a member
of all members of a class.particular age,
A makes a not inwhere interest is created in
attaining a particular age. If gift favour of his
interest is to vest in him. any one of them nephews upon their
But one thing is toattains that particular
applicability, element of time must be the
the be age, his
essence remembered
of the that for ita
ts
The exception to Sec. 21
does not apply to transfer.21
such transfers.
A fund is
Illustration
18 with a
direction
bequeathed such of
to
children of A as
the income of the that, while any child of A shall shall attain the age of
share, to which it may be
entitled, shall be applied be under the age of 18,
who is under the for his maintenance andpresumed he will be
eventually
age of 18 has education. No child of
vested interest in the
a
A
S. 23.
Transfer bequest.
Where, on transfer of contingentan on happening of specifie d
property,
person, if a specified uncertain interest therein is to uncertain event.
the occurrence of event shall accrue to a
that event, the interest happen and no time is specifed
or at the same
time as the fails unless such èvent mentioned for
intermediate or precedent interest happens before,
COMMENTS:
in favour A person. is
of another to take entitled to create an
ceases to exist.

is also entitled to effect on the interest in property

specify the time withinhappening of an uncertain
happen provided the time-limit so which such uncertain event.
event
He
perpetuities, fixed does not offend the is to
person in whose
favour rule
interest on the the interest is
happening of the event within created azainst
the time so limited.will take the
But where no time is
the
contingency mentioned by the
should happen. The
the law fixes the time-limit transferor
wihin
for the bappening of
section which the
happen before or accordingly contingency
time as the provides that the contingency must
at the same
principle on whichintermediate
ceases to exist.
law is in favourThe
or the
of this time limit is precedent
fixed
estare
thereof. early vesting and is that ine
against the indefinite postponement
This section bas no
happening of a certain application where the interest is to accrue on
event, such as, the death of a tne
expressly refers to a contingent person.
gift to a 'specified person. Il has This section
to a gift to contingent class which fall within Sec. 22. In no releren
the Judicial Committee Bhupendra' s case
Act, 1865, now reproducedobserved, with reference to Sec. 111 of
which in Sec. 124 of the the succes
corresponds with Sec 23 of this Act Indian Succession Act, 174v9
"Section 111 embodies the rule enunciated in case of
ruleof law laid down in that case has been Edwaras.
considerably moaic
21. Maseyk v.
Furguson, 1LR 4 Cal 304.
22. Kanai Lal v.Kumar Purnendu Nath, 51 CWN 227.
23. Bhupendra Krishna Ghosh
24.
v. Amarendra Nath Dey, Il R(1915) 48 Cal 432.
Bdwards v. Edwards, (1852) 15 Beav. 337.
s. 23) TRANSFER OF PROPERTY BY ACT OR PARTIBS 109

later English decisions. The Indian Act, however has given it

statutory force.. Their Lordships think that it should be applied only
to cases strictly coming within its scope."

The principle behind this section is that property should never be without
any owner, it must always vest in some person.26
Subsequent contingent interest.-The section deals with_the case of a
prior interest followed by a subsequent contingent interest. The contingent
interest cannot vest until the event on which it is contingent happens. r that
event happens sometimes after the prior iaterest has determined, there is a gap
or interval during which the estate would be in suspense and would be a res
muullius. The section, therefore, enacts that the contingent interest will tail or
cannot vest unless the event happens before or at the same time as the prior
interest ceases.

lustrations
There is gift for life to A, and thento B in case he gets called to
(1) a
the Bar. The gift to B fails unless he is called to the Bar in the lifetime of A
or at the same time as A dies.
case of his death to B. IfA
(2) A legacy is bequeathed to A, andnotin take effect.
the testator, the legacy to B does
survives
to A when and if he attains the age of 18 and
(3) A legacy is bequeathed
A attains the age of 18. The legacy to B does not
in case of his death to B.
take effect.
(4) A legacy is bequeathed to A for life, and after his death to B, and
to C. The words "in case of B's
in case of B's death without children
as meaning in case B dies
death without children" are to be understood
without children during the lifetime
of A.
real property rule
The rule in this section corresponds to the English the continuance of the
that every contingent remainder
must vest during
it or co instanti that such particular case
particular estate which supports real property is not to be imported
dete rmines.2 This artificial rule of EnglishCommittee in Gadadhar Mulick v.
the Judicial
to India was so observed by
and Soarjeemoney's case.a
oficial Trustee of Bengal37 to his
the testator bequeathed his property
In Chunni Lal v. Samarth,20 without male issue his
that in case of either dying
two sons with a proviso over to the surviving son was

share was to go to the of survivor. To gift without male issuue. The Privy
death the other son
contingent on the the other son died two
over was effective although
Council held that the gift the Hindu Wills Act did
This was a case to which
after the testator.
Indian Succession Act,
other cases in which Sec. 11l of the
years
was
not apply; but in
was made applicable by the
Hindu Wills Act, itof the
or the death
1865, was applicable absolute and indefeasible
was an
on

held that the prior gift

testator.30

Ch. D. 211.
25. Abiss v. Burney, 17
136
of Property Act, p.
Mulla's Transfer
26. IA 129.
27. (1940) LR 67
123.
MIA
28. (1862) 9Bom Nistarini Debya v.
399. 563
29. ( 914) LR (1896) 23 Cal.
Kamalbasini Dasi,
N a r e n d r a n a t h v.
30. 19 CWN 52.
Bchari Lal, (1914)
 110 IRA NSPER OF PROPERIY ACT

Whether section 23 is
Santi Debi3 the High Court
exhaustive.-In
of Calcutta held
case of Indraloke C.
.24 S. 25]
exhaustive. that section 23 of dio Ltd. v.
this Act i survivest
S. 24. Transfer to such of certain not representa
specified.-There, on a transífer of property,persons as sur vive at some
Deria
rviving some period, but period
to such of certain persons as
period is not specilied, the
all be su
an interest
at therein is 0
not with a di
(4)
when the intermediate or interest shall go to such of them as the accrue shall go tc
precedent
intention appears from the terms of theinterest ceases to exist, shall hct the lifeti
transfer. unless
less a ove
contrary This
Tllustration the analog
to two or
transfers property
A to B for life, and after his death to C or survivo
to be divided
between
life of B, D Survives B.them, or survivor of them. C dies D, eauat
At B's death the
to the and Survivorsh
property passes to D. durine the sion, wher
COMMENTS :
Scope of the and wher=
time is mentioned for the
of which an interest occurrence of an section.-The
section provides that where a life.37

not necessary that the created on a transfer of uncertain event on the

happenino The
event should
happen beforeproperty is to take effect, surviving
precedent or intermediate interest or at the
same time as
it is vested onl-
eases where the
transfer
ceases to exist.
This the section th
contingency is to refers to some section deals with
period within which
may be happen does; but
not a
conditional in either of the two exactly specify the period.particular
meaning."
interest may depend upon the S.
senses. Either the creation ofA gift
interest analogous to the happening event when it
of the property
another case, a gift may beinterests referred in sections would be
contingent
21, 33 and 34. In
is impossib
it would de=
superadded a condition that theconditional
interest
when the interest
created by it is injury to
uncertain event shall shall cease to exist
happen or not
happen.3 in case a
specified
moral or 0-
The section enacts a
Justice Turner in White's*s caseruleas of construction. It has
been explained by
follows: (a) A
"Where there is a an hour.
the survivor of them, bequest toA for life and after his death
some meaaing must
the survivor." to B and C or (b)
They may refer to any oneofofcourse be attached to the words C. At the-
persons named surviving other, or to the three
events-to one of the
or to one of them only one of them (c) A
surviving the tenant only surviving the testator, transfer is
indication to the contrary for life, and in the absence of
the more they are taken to
refer to the latter event as any
probable one to have been referred to." being (d) A
The transfe
Tlhustrations COM
(1) A makes a gift in favour of B and conditions E
and, therefore fails, C is entitled to take theC jointly. The gift to B is invalid case of a co-
whole estate.34 the contrac
(2) Property is sell his hous
to be equally divided bequeathed
between
to A for
life, and after his death to B and C dition prece
the life of A ; C them,
survives A. At
or to the
survivor of them. B dies duriug the house do
^'s death the
(3) Property is bequeathed to A for goeslegacy to C. to be perfor
agrees tolet
OTthe survivor, with a direction that, if life, and after his death to Ban is one of con
children are to stand in B should not survive the
his place. A dies testator, B
31. AIR 1960 Cal during the life of the vesia 35. CripF
609. 36. Ellok
32. (1969) 71
Puj LR (Delhi) 9, 37. CripE
33 White
Baker, 1860 8 De G. F. and J. 55, 64:
v.
38. Harri
34. Nandi Singh v. 129 R, R. 9 (14
Sitaram, ILR 16 C 677.
 S. 25] TRANSFER OF PROPERTY By ACT OP PARTIBS 111
survives the testator, but dies in the lifetime of A.
representative of B.
The legacy goes to the

(4 Property is bequeathed to B for life, and after his heath to C and

with a direction that in case either
shall go to the survivor. B dies in of them dies in the lifetime of A, the whole
the lifetime of A. The the lifetime of A. Afterwards C dies in
legacy goes to the representative of A.
This rule and Sec. 125 of the
the analogous rule of Indian Succession Act, 1925 are based on
English law relating to bequests that if a
persons equally to be divided between them, or tolegacy
to two or more is given
the
or
survivor of them, and there is no special intent to be found in survivors
Survivorship is to be referred to the period the will the
sion, where prior interest is given in the of division 35
The period of tivi
legacy, is the death of
and where a prior life estate is given, it is the death of the estator,34
life.37 the tenant for
The interest created to acrue to
such of certain persons as shall be
surviving at some period, is only a contingent
vested only when they survive the owner of the interest, which would become
section the word precedent interest. Under this
'survivor should be construed according to its natural
meaning.38
S. 25. Conditional
property and dependent upontransfer.--An iuterest created on a transfer of
a condition fails if
the fulfilment of the condition
is impossible, or is forbidden
by law, or is of such a natnre
it would defeat the that, if, permitted,
provisions of any law or is fraudulent, or involves
injury to the person or or
implies
moral or opposed to publicproperty
of another, or the Court
policy. regards it as im

Tllustration
(a) A lets farm to B on condition that he shall walk a
an hour. The lease is void, hundred miles in
(b) A gives Rs. 500 to B on
C. At the date of the marriage Ccondition
was dead.
that he shall marry A's daughter
The transfer is void.
(c) A transfers Rs. 500 to B on condition that she shall murder C. The
transfer is void.
(d) A transfers Rs. 500 to his nieoe C, if she will desert her
The transfer is void. husband.
COMMENTS : Condition Precedent.-Conditions are of three
kinds,
conditions precedent, collateral
case of a contract, there may be a
conditions and conditions subsequent. Inviz.,
the
the contract as a whole comes into condition attached
on whose
performance
operation. For instance, A contracts to
sell his house to B if B marries C. This
dition precedent and its effect is that
is a case of a contract with a con-
the house does not arise against A.
until B marries C, the obligation to sell
to be performed side by side with the
Secondly, a condition may be required
performance of the contract. Where A
agrees to let his fields to B, so long as B lives in the same house as A, the case
is one of contract with a collateral condition and the contract of lease
remains
35. Cripps v. Wolcott. 4 Mad 11: 56 ER 613. See Illustration I
above also.
36. Ellokasee Dassee v. Durponarain Bysack, 5 Cal 59,
37. Cripps v. Wolcott, 4 Mad 11.
38. Harrison v. Harrison, (1901) 2 Ch. 136.
 TRANSFER OF PROPBRTY ACT
rstin kng as B continues to live in the
so
nsy e a
oondition that on fhe happening oor same
e t te ontract will be discharged.
For house as2s A. Thira
ary to B until he dies. This is
Bs death, the
library will revert to 4.
Section 25 deals with trensfer
the case
instan
of a A on-happening«
condition Contrac
A.
subsequent,
acts to leandn
is atisîed.
If a condition precedentwhich takes
is iDvalid effect if
the transfer itself fails. in law
o the
inpossibility of
In
illustrations (a) and (b)
thisondition dition pTeats
is section enacts
forbiddenperformance
of the
tbe act is one the act prescribed. transf fails be
to public policy. by law and in
illustration (d) the Ansfer In ilustration
The test whether a a
act
character without condition is valid or one opps
Intention of the parties istaking the
intention of void, it is to ha
property based on the
is irrelevant. If an
the parties inJudged
in connSi
or of such a condition which is
interest, created o
or
fraudulent
nature that if
or involves permitted, it would impossible or forhid
defeat the provisi anse
erabsn
or the
Court regards it as implies injury to the
or
by a
under this section. immoral person or
of condition.° A
provision good by
or Opposed to publi: policy. proDertany
In cases way of contract
the transfer contemplated
dependent on it are void.41 section 25 bothisthealsocondi
by val
A transfer of
crime or civil property on
wrong as assault, the
also, a transfer libelcondition
and fraudthat the
policy.
of
property which is based on a transferee
etc. is hit will
by this sectim
condition against mikt
Section 25 of this Act
Succession Act, 1925, and may be 2omp1red with sections
sections 23 and 36 of the 126 and Mdte
If the fulfilment Indian Contract Act.
transfe subject to a of the conditions is
andimpossible.-When
is rendered condition precedent a deed naksa
impossible by the act
the circumstances of transferor
the
performance of the
take effect show that the himself the interest conditio
only if the condition transferor intended that would fall
the transter shous
was fulfilled.2
Opposed
is illegal.to Public
public
policy
is policy-Condition
governed by judicial policy is not a branchagainst public good or P
of the law to be
Is precedents. extenu
immoral forbiden by
relations between law.--The transfer
implied. transferor and transferee conditional on on continuance
contin lcan
is void
pronlD on
tion Condition
prece dent ISprecedent and condition
condition one which must
happen
defeated. subsequent is only the happeningbeiore subsequent--Distinction.mene
A cond

the estate can ctate wll

of which an exlsts
(2) Where the
condition is precedent, the estate is not in
ranteeun
39. Sections 26 to 30, tn
17 LJ Ex Contract Act.
.
(1846)
(1926) 95 LJ Ch (109).
42. AIR 1975 SC 136.
43. AlR 1976 All 1019.
79.
S. 26] TRANSFER OF PROPERTY BY AST OF 113
PARTIES
the condition is
performed ; but where remains
immediately vests in the grantee and the
broken.4 condition is subsequent,
in him the estatei3
till the condition

(3) In the case of a condition precedent being or

be performed or being immoral or becoming impossible to
opposed to public
arise and the transter will be void (S. 25). But in the policy, the estate win
case of an
or immoral
condition subsequent the estate will be or become impossibie
absolute
condition will be ignored. Thus if a gift was made with a condition and th
marry a certain person on or before she superadded
that the donee should
age of 21, and the person named died before attained the
she attained that age, it
subsequent having become impossibieheld
that the fulilment of the condition was
estate become absolute.46 tne

There is clear distinction between an

and animmoral condition which is
immoral consideration for a gift,
subsequently
consideration itself is immoral, the transfer fals to attached to a gift. If the
the
hand, if a subsequent condition is tried to be attached toground. On the other
a perfectly
then the condition, if valid gift,
immoral, is void but the gift remains unaffected.*
(4) A condition subsequent must be strictly fulilled
precedent substantial compliance (S. 29), condition
for
is sufficient
(S. 26).
Exception.-If the fulfilment of the condition is made impossible by the
fraud on any person directly benefited by the
the condition shall be non-fulfilment of the condition,
deemed to have been fulilled.
S. 26.Fuifilment of condition precedent.--Where the terms of transfer
of property impose a condition to be fulilled before a person can take an
interest in the property, the condition shall be deemed to have
been fulfilled if
it has been substantially comp lied with.
Illustration
(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
Bis deemed to have fulfilled the condition.
and D,

(b) A transfers Rs. 5,000 to B on condition that he shall marry with the
conseat 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 fulilled the condition.
COMMENTS Scope of section.-This section deals with the fulfilment
of a condit ion precedent. The general principle is that where a transfer is
made on a condition precedent, the transter fails unless the condition is first
fulfilled. This section provides that such a condition shail be deemed to be
fulilled if it is substantially complied with. Thus, for th2 applicability of this
section, a literal performance of the condition is not required.47 It is an
application of the well recognised principle that the law leans in favour of
vesting of the estates. It is also in accordance with what is known as the
cypres doctrine applicable to wills charitable and trusts.4
Conditions precedent.-Conditions precedent are the conditions which are
44. Wynne v. Wynne, 2 M. & G. 8.
45 Thomas v Howell. 1 Salk. 170: Jarman on Wills, Vol. II, p. 12.
46 Chumna v. Ramchandra, 47 All 69: AiR 1925
All437
47. Santona v Advocate.General of Bengal, ATR 1921 C 39.
48. Seo H. v. Taylor, 2 w& TLC 146.
TP8