Restriction repugnant to interest created 257

11. Restriction repugnant to interest created.-Where, on a transfer of

propery,aninterest therein is created absolutely in favour of any person, but the
temsofthe transfer direct that such interest shall be applied or enjoyed by him
particular manner, he shall be entitled to receive
and dispose of such
ina as,if there were no such direction.
interest
'Where any such direction has been made in respect of one piece of
immovable property for the purpose of securing the beneficial enjoyment of
another piece of such property, nothing in this section shall be deemed to affect
anyright which the transferor may have to enforce such direction or any remedy
which,he may have in respect of a breach thereof.)
SYNOPSI8
1. Scope. 5. Creation of absolute estate.
Applicationt the Cantonment Area in 6. Second paragraph.
2. Punjab. 7. Contract restraining enjoyment.
3 Govermment grants.
land transferred under Colonization of
Government Lands (Punjab) Act, 1912.
1. Scope. Section 11 Transfer of Property Act, embodies a general rule that restrictions contrary
nthe interest created by a transfer may be completely ignored. The object and the principle
ehind S. 11is that the transferors should not be allowed to put aclog or restriction on the right
fa vendee so as to be repugnant to the property sold. [1972 J &KLR 355) Main provision in a
Iansfer will be given efect to and the repugnant one disregarded. [(1911) 14 Cal LJ 303)
Section 11 embodies principles of universal application and are applicable even in Provinces
and in cases to which the Act may not be applicable. (AIR 1929 Lah. 648] Where it is clear that
he main object of the transferor was to make an absolute transfer, the inconsistent provisions
cannot be given effect to. [28 Cal 720] Ifthe intention to give to the donee the entire subject
natter be clear, subsequent condition derogating from or limiting the extent of the right is null
and void. [AIR 1953 Sau 180] Atransferee of property who acquires an absolute interest cannot
be restrained in his enjoyments of which by any condition inserted in. the Deed of Transter A
covenant in a sale deed the effect of which is to disable the vendee from either abandon1ng or
enjoying, the interest conveyed to him is not only contrary to public policy but in violation of the
principle of Ss. 10 &11 of the Transfer of Property Act. [ILR 8 All. 1886 (p. 452)] If a property
absolutely passes to the vendee any direction in the sale deed which is contrary to the
enjoyment of such absolute estate is void and unenforceable. [AIR 1971Pb. &hHaryana 87] In
case of confict in two deeds the earlier deposition of absolute title should prevail., (AIR 1963 Sc
90] without giving effect to subsequent clauses. [AIR 1970 Orissa 215] Where donor has made
an absolute transfer of property in favour of the donee, the subsequent covenant either on the
part of Donees with Donor or desire of Donor being in cenfict with the provision of S. 11 are voId
and of no legal effect. [1988 CLC 186]
M"But the terms of the transfer direct". Word "direction" would include the impostion
of a condition. (AIR 1926 Oudh 431)
1
ou0S. by the Transfer of Property (Amdt.) Act, 1929 (XX of 1929) s. 8, for the original second paragraph
258 Transfer of Property Act, 1882 by ck. chaheood
1.2 "Shall be applied or enjoyed by him in a particular manner".
absolute
added by way of a direction in a transfer which is
{(1888) 38 Ch D176] Partial restraint, on alienation is not shouldAbsol
repugnant
be ute IChapterrestrai-|nt
interest created and is valid. (1875) 23 WR (Eng) 718]
property and his heirs should reside in the property on pain of
be void for repugnancy, if the main intention of the donor wasforfeiture
to
[AIR 1920 Bom 73] Direction in an absolute transfer to several make an
to
Condition that the
of the
the gift
disregaabrdseodlule
donee o
Woud
persons absolthuatte
shall not divide the property at any time or for a limited period would be jointly gifh
void under this section. [(1875) 1 Cal 104] A making absolute
property to B by sale for cash consideration but stipulating for
payment
certain amount per annum from profits of property. Direction is restriction
repugnant they
Conveyance
by of andhis
of right created absolutely in vendee and is unenforceable. [AIR 1938 on vendee
of
enjoyment
Oudh
vendor cannot be permitted to convert a sale into a perpetual lease by providing17] A
payment of haque malkana for all time to come. [AIR 1971 Punj 87] Where
deed the donor unequivocally and unconditionally transfers all his
rights
property to the donee with absolute powersto deal with the same from the
under
over
agt
certain
subsequent clause in the deed to the effect that on the death of the donee date of gift, a
shall not devolve on any of her heirs but will revert to the donor will be the
absolute estate created in favour of the donee and to the legal
incidentsrepugnant
of to the property
and as such the provision will be ineffective and wholly void. [AIR such estate
Where the donor grants an absolute estatè to the donee and in a 1953 Trav-Co 115)
the deed provides that on the happening of a contingency the subsequent
absolute estate clause
would h
in
curtailed to a life estate after the death of the donee by exclusion of al the heirs at l .
the donee from inheritance such a clause being a
defeasance clause and not
repugnant clause. [AIR 1982 Cal 158]
1.3 "As if there were no direction". Direction which is
invalid under this section d0es not
cut down or defeat the estate created. [AR 1935 PC 187]
2. Application to the Cantonment Area in Punjab. It is not
the Transfer of Property Act have not been extended to the denying the fact that provisions of
Cantonment area in the Puniab
province. It is only unavailing because in the areas, including the Province of Punjab
whereto the
application of the Act itself has not been extended, those provisions of it which embody the
principles of equity, good conscience and justice have also been applied. Even though a large
number of cases from the Punjab and other provinces can be cited on this point, yet,
may be made only to the Full Bench judgment in Mool Chand and others v. Gangareference Jal and
others AIR 1930 Lah. 356: Tara Chand v. Bakshi Sher Singh and others AlR
Fim Gandasa Singh Mehr Singh v. Secretary of State AIR 1934 Pesh. 101; 1936 Lah. 944;v.
Chaman Lal AlR 1936 Pesh. 43 and Was dev through Mst. Vitya Wati v. Firm Saifullah Khan
Nath AIR 1940 Lah. 291. Rules embodied in section 105 to 117 of the Transfer ofDheru Mal B!
Property Act
excepting those relating to fom of lease in section 117, therefore. are such rules of law ano
therefore, applicable. The specific application of section 107 Transfer of Property Act to the
Cantonment Area, as regards only the form of lease, is rather a point to the effect the remaiing
rules of the Act will continue to apply as above. More in point, however, is the
Lahore High Court in the case Hafiz Muhammad Budha v. Ghulam Qadir 112 judgment o
/.C. 651 Wneio
principle of section 116 of the Transfer of Property Act was applied to a case from Hoshiarp
To the same effect is also a Full Bench judgment of the High Court of
Madras, baseO
number of other cases, in Katragadda Brahmayya, minor and others v. Katragadda Balatrippura
Sundaramma and other of AIR 1948 Mad. 275. The rules in sections 105 to 116 of the Transfer
S.
11] Restriction repugnant to interest created 259
ofPropertyAct, therefore, apply to the property situated in the Cantonment areas (1987 CLC
1986Lah. 523 =1986 Law
108
=PLJ Notes 1196)
3. GOvernment grants. This section however will not render void any restrictions placed by the
Governmentinthe case even of absolute
transfer. [AIR 1918 PC
4.LandItransferred under Colonization of Government Lands25)(Punjab) Act, 1912. Where a
granted under the
landis an abbsolute
Colonization of Government Lands (Pb) Act, 1912, what the grantee
obtainsis not estate but an estate minus interests excepted
ScheduleI. The scope of transfer is also restricted by the condition in the and reserved under
Section 11 of the Transfer of Property Act does not apply to such cases deed and ofCondition
conveyance.
of the
deedoof conveyance is
legally valid and
enforceable. [PLD 1960 W.P. (Rev) 32]
Creation absolute estate. The clause restricting
of
life estate was held not in derogation of an
alienation in a partition deed conferring
only a absolute
iself. (AIR19552 Mad. 166 (Pr 2)] Where by the words used in grant a deedbut daughter
a condition
of theof the grant
grantor is
the property with absolute rights she takes it
totake absolutely: asubsequent clause
her from selling
the property for any
purpose other than the debts of the grantor is restricting
andinvalid So also the provision that after her death her grandson should get the property is at
repugnant
best a provision for devolution of the property after her death and cannot limit the absolute
character of the estate given. [(50) 1950-2 Mad. L Jour 496)
Transfer of an absolute estate
passes to the transferee an interest which is unlimited in estate and
Ption or trust. [AIR 1934 Cal. 379] Where A who is the full owner of unfettered in respect of any
Pte ostate therein to B, It cannot be an absolute transfer within the
certain property transfers a
meaning of this
020 Cal. 731 (DB)]Principle of S. 11 applies as much to mortgages or leases as to section. [AIR
R6) 8 All. 452 (DB)) The reservation of subordinate or tenancy right by the gifts or sales.
ranuonant to the transfer of the propnetary interest entitling the transferee to receive transferor is not
only the rent
from the transferor. (AIR 1954 Cal 400 (Prs 13, 14))
Where the daughter of the grantor was to take the property with absolute rights she
lakes it absolutely a subsequent clause restricting her from seling the property fof any purpose
other than the debts of the grantor is repugnant and invalid. So also the provision that after her
death her grandson should get the property is at best a proi.ion for devolution of the property
after her death and cannot limit the absolute character of the estate given. [(1950) 2 Mad LJ
496] A gave certain lands to his daughter-in-law G for her lifetime and after her lifetime to her
step daughter S If S had nO ISSues the lands were to go after lifetime of S to her dowhitras and
their issues. It was held that S got an absolute interest in the property and.the clause providing
for devolution in case S died without issues was repugnant to the preceding absolute estate.
[AIR 1953 Andh-Pra 447] Partition arrangement providing in the first instance for allotment of
disputed property in favour one Rs wife C-C not to deal with the property by sale or otherwise
during Rs lifetime-After C property was to devolve on her four brothers-Held that interest
Intended to be conveyed in favour of C was in the nature of mere life-interest and not absolute
one. [AIR 1957 Ker 119)
Where under a gift deed the donor unequivocally and unconditionally transfers all his
ignis over certain property to the donee with absolute powers to deal with the same from the
vele of git, subsequent clause in the deed to the effect that on the death of the donee the
peny shall not devolve on any of her heirs but will revert to the donor will be repugnant to the
sUute estate created in favour of the donee and to the legal incidents of such estate and as
eol ne provision willbe ineffective and wholly void. [AIR 1933 Trav-Co 115 (Pr 3)]
 260 Itanstorof Property Act, 1882 by cM. Mudaat
6 Second paragraph. Second paragapth of S 12 provides that where
duecton has been made in espect of one piece of immovable prOperty
secunng the benetcial enjoyment of another piece of such property.
be deemed to affect any ight which the transferor rnay have to enforce
any.
for
where
nothing in thisthe
remedy which he may have in respect of a breachthereof This para IS an Such Seclio
(dicrheciappurloanr.na
para It was incorporatedin recognition of the rule that the transferor
restricting enjoyment of the land transterred if such restrictions are for the may
bernefit of
exception
to the
inpose
transferor agaiConnsdttn,te
land The second para telates to the enjoyment of the restrictions by the
transferee The restrict1ve convenant could be enforced only by the his a0iit,
assignee from the transteror of the property for the benefit of whichtransferor
the
or a
[AIR 1989 Ker 308) Where Atransfers property Xto B and the latter convenant
agreeS
he will enjoy Xin a particular manner the agreement or convenant is valid or suwasbsequenar
second paragraph does not apply to restraints in respect of an incorporeal
480] There must be a mention in the sale deed that the vendor had
[AIR 1932convenAla1956lnts
right. [AIR 78] Th4.
reserved
beneficial enjoyment of his other property". Where S had sold a portion of the any rights C
thg

a passage in the portion sold, this passage is to be treated as in joint land to A

subsequently S sold the remaining portion of the land to Rwithout
the passage by specifically mentioning the fact in the sale deed, R cannot
ownership
specifically
of S.
selling his and A
rights in
resevin
agreement between S and A. (AIR 1951 Ajmer 74] here a convenant was
as owner of other land of which the land sold formed a part for the benefitimposed
of the
by
the vendo e
thenforce
annexed to the unsold land so as to run with it or in other words its benefit runs unsold
with land, itis
the land for the benefit of which it was expressed to be made and not only the whole o
the
convenantee but his transferee or successor-in-interest of the entire
Convenant under Section 11 red with Section 40. 1984) 1 Cal HN 345) Aland canconvenÆ
positive enforce the
beneficial enjoyment of the property of the transferor is saved only as between thepant to
transfer as per S. 11. [(1992) 1 Cur CC 232] Second part of Section 11
allowingretained
a transferor to
impose conditions on the transferee for the benefit of enjoying the portion hu
transferor would be enforced only by the transferor and not by another transferee of angh
portion even though all the transfers had similar conditions imposed and all of them wa
concluded on the samè day. [AIR 1976 All 411]
7. Contract restraining enjoynment. Where the agreement in effect tends to create perpetuy
in property, it would be void. [(1886) 8 AlI 452] Agreement between co-owners of property tha
they should not partition the property for ever or for an indefinite period would be unenforceable
((1909) 31 All 3(4)) Agreement between co-owners not to partition the property during ther
lifetime or for a limited period would be valid and enforceable. [AIR 1920 All 341] Agreemen!
restricting a person's enjoyment of property for ever or for an indefinite period would be binding
on the actual paties to the agreemerit. [(1908) 12 Cal WN 793] Where the liability for payment
of rent to the owner and annuity to the lease holder in perpetuity was assumed by the
transferees while purchasing lease-holder's interest, what was transferred was the interest of the
transferor subject to the right to claim annuity and the covenant to pay the amount in perpelUIy
and a charge on property was not a restriction repugnant. [AIR 1965 Ker 27] Where t we
simply recited that in case the vendee raises construction on the land he willmake payment
the amount which may be demanded by the State Government or Municipal Council, cou
be said to be liable to be ignored on the ground that the sale was for raising construction re
was prohibited by law. (AIR 1990Raj 90] A condition in the deed of gift whereby propertieisnotin
transferred to the son by his deceased father to provide maintenance to his dependants
any way repugnant to the interest created by the instrument and the condition i5 vo
enforceable and not hit by provisions of S. 11. [AIR1987 Cal 368]
 Condition making interest
12)
determinable on insolvency or attempted alienation 261
Condition making interest
alienation.-Where
12. determinable insolvency attempted
on
property is transferred subject to a or
anyinterest therein, reserved or given to or for condition or limitation
ceaseon his becoming insolvent or endeavouring to the
making
to benefitor ofdispose
transfer any person,
of the
condition or limitation is void.
same,such
Nothing in this section applies to a condition in a lease for the
claiming under him benefit of
e lessor or those
NOTES
1. Scope. Section 12, Transfer of Property Act, 1882 refers to the transferee "becoming
insolvent" not "being adjudicated an insolvent" and cannot be restricted to cond1t1ons which
Wouldtake effect only on adjudication. Any condition on transfer whereby the interest transferred
wOuld cease on the happening of an event on which the transferee is liable to
be
adjudicatcd
insolventis void. [AIR 1945 Pat. 162] The section does not invalidate conditions which are in
derogation of the right
of the transferor. [AIR 1951 Pat. 488 (Pr 10).
agpicationto Provident Fund Rules as regards forfeiture upon assignment(Section 12 hasof the
or insolvency no
contributor]A clause of forfeiture on alienation by alessee does not come into operation by the
lessee's becoming bankrupt ((1857) 53 E R152] Aclause for forfeiture must be construed
_trictly against the person who is trying to take advantage of it and effect should be given to it
onlyso far as it is rendered absolutely necessary to do so by the wording of the clausc [AIIR
1935 Mad 163 (Clause of forfeiture on an alienation by lessee does not cone into operation by
land)]
transfer of only part of lease
.nce contained clause of forteiture on lessee's bankruptcy and permission.to assign
lease with consent of lessor-Lessee assigned lease with lessor's consent and became bankrupt-
ethat there was no forfeiture of lease and that it was not affected by bankruptcy of first
776)
lenant. (1891) 60 LJQB
41 Agreement to sell. Petitioner having paid over and above the actual price of the plot.
Dispute about extent of payment can easily be settled by the Departmental authorities
Instead of cancelling the plot (1993 CLC 1206)
13. Transfer for benefit of unborn person.-Where, on a transfer of
property,an interest therein is created for the benefit of a person not in existence
at the date of the transfer, subject to aprior interest created by the same
tansfer, the interest created for the benefit of such person shall not take effect,
unless it extends to the whole of the remaining interest of the transferor in the
property.
Illustration
intended wife
A ransfers property of which he is the owner to B in trust for A and his of the intended
SUCcessively for their lives, and, after the death of the survivor, for the eldest son
benefit of the
lor ite, and after his death for A's second son. The interest so created for the interest
Bl remaining in the
eldest son does not take effect. A's
because does not extend to the whole of
property.
 Act,1882 byc% ohahmoo
Transterof Property
262 3YNOPSI8
2. Propety transferred
ejectment. pending
Chapter
sut
1 Scope
1. Scope. Section 13, Transfer of Property Act, 1882is an attempt to import into and ada
use in Indo-Pak. what used before 1926 to be knoWn in England as the "rule agains
possibilites" The principle is that a person disposing of property to another shall not
property in the hands of more generations than one. The
free dispositon of that against perpetuities, though their effects
distinct from the rule sometimes overlaprule iS qute
interest for the benefit of a
Som. 395 (396)) It is necessary that subsequent
transfer should extend to the
whole of the
interest perso[AnIR nol1945in
existence at the date of
transferor, after the prior interest is
directed to the extent of the
created. [AIR 1944 Mad. 22 (23)] The
subject-matter and to the absolute nature of the estate
188 (193)1
remai"neixntgends
word in the
s
and not to the certainty of its vesting.
[AIR 1948 Bom.
Child in the womb has been regarded by the Hindu law as
well as
the
conferted
person in existence. [(72) Ind App (Sup Vol) 47 (70) (PC)] Where the gift was
made English
as tenants-in-common with their descendants in equal shares,
the fact
that unborn to persons
donees share in the properties is immaterial so long as Ss. 13 and
1953 Trav-Co 89 (Pr 3, 4)) Property cannot be transferred to
14 are not offended children[AIR
of
Muhammadan law. [AIR 1925 Mad. 997 (998)] Wakf alal aulad created by
unborm person under
Muslim
the settler executed trust, setting properties for benefit of family, children or
generation to generation and thereafter for maintenance of holy shrine is valid
whereundertrom
descendents
and not against rule of perpetuity. (AIR 1998 S.C. 2986] Shia cari create vestedcreation of trust
favour of an unborn person provided life estates are created in favour of
[AIR 1947 Bom. 185 (187)) The section imports in India the rule known in persons in remaiexinsdertencein
against double possibilities". The principle is that a person England as the "rule
not fetter the free disposition of that property in the disposing of property to another shall
rule is quite distinct from the rule against hands of more generations than one The
[AIR 1945 Bom 395) Under both S. 13 perpetuities though their effects sometimes overlap
of Transfer of Property Act, 1882
Succession Act if a bequest is made subject to prior bequest there is and S. 113 f
to the beneficiary being defeated
either by contingency or by a clause possibility interest given
of
beneficiay under the later bequest does not receive the of defeasance and the
unfettered form as that in which the interest bequeathed in the same
the whole of the remaining interest of testator held it and the bequest to him does not comprise
the testator in the thing
undr s. 113 of Succession Act. [(1988) 102 bequeathed. Such bequest is void
Mad LW 374)Although no interest can
in favour of an unborn be create0
person
whom are in existence and somewhen the gift is made to a class or
are not in does not fail in its series of persons some 0f
the persons who are in entirety. It is valid
[AIR 1953 S.C. 7] existence at the time of the testator's death and is with regara 0
invalid as to tne ic.
2. Property
under section transferred pending suit for ejectment. Where in
13, West Pakistan for ejectment
proceedings
objected that the landlord had sold theUrban Rent Restriction Ordinance 1959 the
thus ceased to be the property by a registered sale-deed to another, tenal
the landlord was landlord, the petition for and having
to receive rent on ejectment could not be proceeded with: Held that
against the tenant.entitled
By force of the the date that he
filed the application for ejectment
to stipulation
continued be entitled to receive rent in the conveyance to a third person, the landlord
Continued to be his landlord. in respect of the
building from the tenant and. therefore.
 Rule against perpetuity 263
the
relationship of landlord and tenant had not been extinguished on account of
Since his application for
tanser of the property ejectment under section 13 could not be said to
Ordinance VIof 1959,-does not operate as a complete ouster of the principles underlying
me
Transferof
abate
Property Act and is to be preferred only in case of inconsistency. The right to
the propetyis transferred to the lessee in a given case for a given period. In the present
possessatransferee of the property did not have aright to possess the property until the petition
the decided The transferee of the property in dispute did not, therefore. become
ejectmentwas
case
tenant since the former not being entitled to possession himself could not
torlandlord of the
the to the
latter and without a transfer of possession the relationship of landlord and
it
transter established.
lenantcould| not be
'
stipulation contained in the conveyance was a contract to the "contrary" within
The 109 Transfer of Property Act, 1882, so far as the right to possession was
section
meaningof by it the delivery of possession had been made dependent upon the
concerned because
petition for eviction filed by thelessor. [PLD 1967 Lah. 10201
decisionofthe

14. Rule against perpetuity.-No transfer of property can operate to create

interest which is to take effect after the lifetime of one or more persons living
an
the date of such transfer, and the minority of some person who shall be in
at
existence at the expiration of that period and to whom, if he attains full age, the
belong.
interest created is to
SYNOPSIS
5. Contract to sell.
Scope.
2. Charge.
6. "Which is to take effect".
3 Religious trust. 7. Power of appointment.
4 Property.
Scope. Section 14 of the Transfer of Property Act, provides that no transfer of property can
onerate to create an interest which is to take effect after the lifetime of one or more persons
ing at the date of such transfer, and the minority of some person who shall be in existence at
he expiration of that period and to whom, if he attains full age, the interest created is to belong.
The principle is that the liberty of alienation shall not be exercised to its destruction. [AIR 1970
SC. 1872] The reason of the rule against perpetuity is the mischief that would arise to the public
from estates remaining forever, or for a long time unalienable, or untransferable from one hand
to another, being a damp on industry and prejudice to trade to which may be added the
inconvenience and distress that would be brought,on families whose estates are so fettered.
(732) 24 ER 917 (918)] If it is possible that the vesting may be postponed beyond the imits
Txed by the section, the disposition will be bad, although the events on which the vesting
depended actually happened within the prescribed limits. [(1911) 38 Cal 603] Where the testator
had made a residuary bequest in favour of a certain limited company and a registered society for
ier general purposes which were partly political and partly educational, it was held that the gifts
"ele aosolute gifts to the organizations, that the existing members of the two associations were
ed to the immediate use of both the capital and the income of the bequest and that
therefore the bequest was not hit by the rule against perpetuities. (AIR1949 Cal. 533 (536)) The
galinst perpetuity as embodied in S. 14 cannot have any application to the creation of an
easement
Cal HN 53]by grant since the creation of easement does not amount to any transfer. I(1991) 1
property and theWhereremainder
under a settlement deed the executor and his wife had life interest in the
is yested in the children to be born to them, the executor and his
 Transfer of Property Act, 1882 by o. hahnood
264
wite can alienate their life interest
which is permiSsible under law but not the
may come into play some
[Chapt
absolute
ro
er -
1)
title in the property. (AIR 1989 AP 34] In order that section 14
the alleged transaction. By the stipulation for pre-emplon
ignts ano
in the property must be created byinterest in the property is created. The cOVonant
contained in the partition deed no
interes
held to be a mere offer incapable of being
specifically enforced. [ILR (1972) Guj 1102:
AIR cannot tae
Assam 43 not a good law] 1969
charge. (AIR 1918 PC 1561
2. Charge. Rule against perpetuity does not apply to a
3. Religious trust. Qakf-alal-aulad created by Muslim whereunder the settler executed
settling properties for benefit of family, children or descendent from generation to gene s!
thereafter for maintainable of holy shrine is valid creation of trust and not against u
perpetuity. (AIR 1998 S.C. 2986] Rule against perpetuity applies to private trusts also. [AIR
Mad 102] 1976
4. Property. Rule against perpetuity will apply to all dispositions of property whether m movable
or immovable. [(1896) 20 Bom 511]
5. Contract to sell. The rule against perpetuity is not violated by a mere contract for the sale o
land. That rule is intended to prevent the creation of an "interest" in property.and as a contrat
to sell does not by itself create in immovable property (section 54) the rule is not applicablc Io
such cases. (PLD 1952 Lah. 166]
6. "Which is to take effect". Words "which is to take effect" show that the rule applies only to
the creatiòn of future interests and the rule prescribes a time limit beyond which such interest
shall not vest. [1910) 1910-1 Ch 12 (24, 25)] Where the instrument stated "My remaining
movable property shallbe dealt with by my son G according as he may think proper and when
the sons of my son Gshall attain the age of 21 the same shal be divided and duly received by G
and his sons in equal shares"; Held gift G's sons was void. [(95) 20 Bom. 450 (463) (DB)] A
transfer of property in favour of another, to take effect on the extinction of the transferor's line of
male descendants, is against the law of perpetuities and cannot be given effect to. (AIR 1926 A
283 (283)]
7. Power of appointment. Whatever estates may be created by a person seized in fee may
equally be created under general power of appointment. (1885) 54 LJ Ch 732 (734)] in the case
of a special power of appointment, the question whether an estate or interest created by
appointment under a special power, is too remote depends upon its distance from the creation
and not from the exercise of the power. [(1906) 75 LJ Ch 599 (602)7 If the interest is to be had
under a power of appointment and if the exercise of the power is made contingent upon an cvcnt
which may by pOssibility happen beyond the limits of the rule under this section the mcte t
that the contingency has happened earlier and has rendered the exercise of the powel
practicable within the prescribed limits, does not validate the interest created under the powel.
[(O8) 31 Mad. 517 (521) (DB)]
15. Transfer to class some of whom come under sections 13 & 14.
on atransfer of property, an interest therein is created for the benefit ofa class
of persons with regard to some of whom such interest fails by reason of any
the rules contained in sections 13 and 14, Such interest fails in regard to tnos
persons only and not in regard to the whole class].
whole class
Subs by the Transfer of Property(Amdt.) Act. 1929 (XX of 1929), section 9, for "as regards the
 Transfer to take effect on failure of prior interest 265
167
NOTES

Scope.
Section 15 Transfer of Property Act, provides that, if, on a transfer of property.
interestthherein
is created for the benefit of a class of persons with regard to some of whom
an interest faails by
reason of any of the rules contained in sections 13 and 14, such interest
such regardto those persons only and not in regard to the whole class. This section shows
failsin to unborn persons may be made to a class of such persons since it contemplates the
gift
the members of the class to take, by virtue of S. 13. [AIR 1948 Bom. 188
that a of Some of
failure
section applies only when a whole
class is sought to be benefited. This section.
(193)/ This be relied on where there is no
provision with regardto the benefit ofa class
therefore, cannot Transfer
1948 Bom. 415 (416)7 to the transferor's "son's son" or son's daughters or to the
AIR
"widows" of X, a Hindu, is a transfer to a class where the number is uncertain at the date of the
533 (538)] Atransfer to the"children of the grandchildren" is atransfer to
22 Bom.
transfer. [(98) persons,the children of each grandchild forming aseparate class. [(1865) 34
several classes of
Ch 3 (4)] A
transfer to all the grandchildren of the transferor "with the exception of one
LJ
namely, the exception not being mentioned, is a transfer to a class comprising all the
grandchildren. [(1851) 9 Hare 37 (39)] Where the transferees are specifically named the transfer
cannot be said to be a transfer to a class of persons. (AIR 1936 Sindh 158 (159)] Transfer to an
cained number of persons as a transfer to "my grandchildren by my late daughter E.W." is
3sransfer to a class. [(92) 15 Mad. 448 (466)]Transfer to Xwith his wife and his children or
Mo my brother for life and his Surviving chidren and my niece" is not a transfer to a class. [(91)
6 Rom, 543 (547. 548) (DB) If a transfer provides that the members of the class of transferees
nuild be ascertained at a specified time or on the happening of a particular event they will be
scertained at that time or on the happening of that event. ((1894) 63 LJCh 544 (547))
'Bequest. No date for ascertaining members of class of transferees provided for
Members of class are to be ascertained at death of testator. (1865) 34 LJ Ch 3 (11)] A
transfer or bequest to a class does not operate in favour of such members of the class
who have died before the time at which the class is to be ascertained, or who have
attested the will, or who are incapable of taking otherwise by operation of law. [(1876)
46 L J Ch 33 (36)] Transfer or bequest to class-Transfer enures for benefit of those
members of class who are capable of taking. (AIR 1934 Cal. 379 (382)] If a gift is made
to a clasS some of whom cannot take being not in existence at the death of the testator
those who are in existence and can take at the death of the testator willtake. [AIR 1952
Cal. 427 (Pr 16)] Founder herself constituting first shebait and after her death Aand B or
their male heirs alive at time of her death and subsequently on death of any shebait his
male heirs to be shebaits-This section does not apply. (AIR 1945 Pat. 211 (228, 229, 250))
[16. Transfer to take effect on failure of prior interest.-Where, by reason
of any of the rules contained in sections 13 and 14, an interest created for the
Of a person or of a class of persons fails in regard to such person or the
whole of such class any interest createdin the same transaction and intended to
take effect after or upon failure of such prior interest alsofails.]

Serte was subs. by the Transfer of Property (Andt.) Act, 1929 (XX of 1929), s. 10, for the onginal
sections.
 266 Transter of Proporty Act, 1882 by k.
SYNOPSISMaamoad
Sye Suit for
1. Scope. Secton 16, Transfer of Property Act, provides that
2
termination of lease-
where,
nules contained in sections 13 and 14, an interest created for the
of persons fails in regard to such person or the whole of such
benefi t by
of areason of
(chapte
sametransaction and
intended to take effect after or upon
failureclass any person
interest intended take effect after prior interest of
Where an is to a such interest prior
any reason, the subsequent interest also fails. (AIR 1942 Bom and the
155 (158)] prior orealed
interest also
in he
intere sti s
to Rtor life and after her death, if there be
any male descendants to S
have only daughters they were to have it without any power of
them gave vOidlats
awa y Ioy
male or female property to go to D-Gift to R's daughters held only
VOId under S. 13 and gift over to D, held void under this
a grant is made alternatively the failure of the one, even on
operate to nullify the other. [(1852) 42 ER 826 (840, 841)] the
section.
of
[AIR
1934
ground
absolutely-\f propen
transfer-ln absence
limited
Oudh
3
of
interest and
R
any iS UE
as Such
Where an
of Ss.
13 35 (40)]Where
on the happening of either of two
other valid, the Court will separate thecontingencies one of which is void
for
ulterior and
gift is t4 wil no
to
two contingencies if they take ee
in one clause and will give effect to

not offend S. 13 or 14 and the unborn

the ulterior
contingency. [(1859) 115 RR 257 (264, 265)] Once itdispositionis
are
on
remitted that gift the
to
rhappeniemotngenessexpres ed
separable though
of the
and
children acquire vested interest unborn valid
under S. 20 there is no possibility of defeating the
the provisions of S. 16. Where non of the interest of the unbornthe moment they.children
children are
dhó
bom
settlement deed is operative in respect of liferequirements as
of S. 16
interest satisfied violalihenNce
ve
interest and the are ol
unborn children. [AIR 1983 AP 139] created in and
2. Suit for termination of
lease-Court fee. Suit for termination of lease and
favour of
Court fee to be calculated on the annual rent. [1989
CLC 202]
'17. Direction for possession
property direct that theaccumulation.--(1) Where the terms of a
income aising from the property shall be transfer of
either wholly or in part during a period longer than: accumulated
(a) the life of the transferor, or
(b) aperiod of eighteen years from the date of the
transfer, such
shall, save as hereinafter provided, be void to the extent to. direction
which the
period during which the accumulation is directed exceeds the longer of
the aforesaid periods, and at the end of such last-mentioned period the
property and the income thereof shall be disposed of as ifthe perioo
during which the accumulation has been directed to be made nau
elapsed.
(2) This section shall not affect any direction for accumulation for the purpo
of:

orig1na
the
1 New S. 17 was subs by the Transfer of of 1929), s. 10, for
sections Property (Amdt.) Act. 1929 (XX
 Direction for accumulation 267

payment of debts of the transferor or any other person taking any

the
0 interestunderthe
transfer, or
provision of portions for children or remoter issue of the transferor or
the
any other person taking any interest under the transfer, or
of preservation or maintenance of the property transferred; and such
( )the
direction may be made accordingly.]
NOTES

Section 17 of the Transfer of Property Act, provides accumulation of income arising

Scope.
1. property either
wholly or in part during a period longer than:-
from life of the transferor,
or
the
period of eighteen years from the date of the transfer,
(a)
(b) a direction shall, save as hereinafter provided, be void to the extent to which the
Such
which the accumulation is directed exceeds the longer of the aforesaid
period during
periods, and at the end of such last-mentioned
the
period the property and the income
of as if
thereof shall be disposedelapsed period during which the accumulation has been
directed to be made had
rule has been subject to the following exceptions:
The above
the
payment of debts of the transferor or any other person taking any interest under
() the
transfer, or
the provision of portions for children or remoter issue of the transferor or of any other
transfer, or
person taking any interest under the
the preservation or maintenance of the property transferred; and such direction may be
(i) made accordingly.
Where a person transters property to another absolutely, but the terms of the transfer
direct that the income arising from the property should be accumulated, the direction would be a
repugnant one and would be void under the provisions of S. 11. [(75) 1 Cal. 104 (107, 108)]If a
transferor makes a provision for the discharge of liabilities that are likely to arise in the future
under a covenant or an agreement that has already been entered into, such a provision also will
be good as one for the payment of "debts". [(1859) 45 ER 339 (344) + (1910) 30 LJ Ch 29,
Povision for payment of debt must be bona fide)] Debts paid and satisfied out of capital fund
Provision for accumulation of income in order to recoup capital that has been taken out from
fund is not provision for payment of debts. [(1904) 73 LJ Ch 543 (544)] Where an accumulation
is directed with the object of giving something to the children which does not constitute only a
part of the estate the direction will not come within the exception. [(1863) 43 ER 17]
Limitations prescribed by this section are alternative as is shown by the word "or".
(1884) 32 WR (Eng) 284 (285)] If a person directs that to be done which as a result leads to an
accumulation, it will amount to a direction for accumulation. (1855) 24 LJ Ch 716 (719)] A
Tansterring property in 1920 with direction that its income should be accumulated for eignieen
Pears trom 1930-Income willbe valid as to eight years up to 1938 and void beyond that year
ODe Tom 1939onwards willbe disposed of as if period for accumulation had expired. (184 1)
49 ER 231
the transfer(235)] In computing the period of eighteen years from the date oftransfer, the date of
should be excluded. [(1808) 33 ER 748 (752))
 268 Transter of Property Act, 1882 by o%. Makooad
Z. Lease in perpetuity-Vacation sought on the

property in the
basis of
personal need has overriding effect. Owner of property has bona
absolute
nmanner he likes and no clog, disqualification or adverSe
in the context of denied suggestion that landlord
IS to be made a ground for refusal of
was planning to sel|
thene
fi de
inference to be
(Chaptet
rightpertosisonaldeal ne d
[PLD 2007 Kar. 50] ejectment on the plea of personal
reniedunderpremises drawNn
need
18. Transfer in
perpetuity for benefit of
sections 14, 16 and 17 shall not apply in the case of public.-The
Ret \aN
a
benefit of the public in the advancement of religion,transfer of
health,safety or any other object beneficial to mankind.] r
pre
o st
perr
knowledge, r theic
tytionfos
2
1. Scope.
For the benefit of man kind.
SYNOPSIS
3
Muhammadan Law.
Commerce
1. Scope. Section 14 of the
Transfer of Property Act, 1882 imposes
of perpetuity that no transfer
after
of property can operate to create an
the lifetime of one or more persons living at interestrestrictions against
the
the date of such transfer.which is to take ule
Some person who shall be in existence at the
expiration of that period and to and the effecloi
full age, the interest created is to belong.
the rules contained in sections 13 and 14, Section 16 provided that where. bywhom, he attains
if minority
an interest
class of persons fails in regard to such person or the created for the benefit of a reason
of
any o
the same transaction and intended to
take
whole of such class
any person
or of a
interost
fails. Section 17 restricted the direction for effect after or upon failure of such prior cIcated n
period longer than (a) the life of the accumulation of income either wholly in inlcrcst aalsso
or (b) a period of 18 years from thepart during
transferor. This section provides thattransferor, date
restrictions as imposed in the sections above given shal of h
a
not apply in case of transfer of
property
religion, knowledge, commerce, health, safety for the benefit of the public in the
or any other object beneficial toadvancement
mankind The
of
exception created u/s 18 is in favour of a
beneficiary so far as the objects of the transfertransfer under which the public becomes the
the rule (i.e., the rule forbidding the tying up ofare concerned. (AIR 1989 Oissa 60] Object of
property inalienable unless for objects which are property) is to prevent the mischief of making
in some way useful or beneficial to the
community. [(1876) 6 P 381]Bequest to charity to take effect
rule against perpetuities is valid where the property had been beyond the period allowed by the
charity. [(1913) 14 Cal 192] Exceptions provided by this section given in the meantime to another
benefit of the public "in the advancement of religion". [AIR 1923 Cal extends to all transfers for the
708]
Apurpose must, in order to be charitable be directed to
asection of the community. [('10) 32 All. 503 (511) (DB)7 If the the benefit of the community or
benefit specific individuals the gift is not charitable even thoughintention of the donor is merely o
relieve their poverty or to accomplish some other purpose inthereference motive oftothethese
gift may o
part1c1uku
individuals which would be charitable if not so confined: on the other hand, if the donors o
is to accomplish abstract purpose of relieving pove ty, advancing education or religion clc.
without reference -to any particular individuals and without giving any
right to claim the funds, the gift is charitable. [(10) 32 AlI. 503 particular inovu 81
(511) (DB) + AlR 1930
New S. 18 was subs. by the Transfer of orig1na
1 for the
Property (Amdt.) Act, 1929 (XX of 1929). S. 10.
sections
 Transfer in perpetuity for benefit of public 269
community is sufficient and it is not necessary to see in every case
benefit the
to carried out the community would in fact be benefited. [(1895) 64 LJ Çh 856
Iatention
Objectis be a charitable purpose only where the religious services tend
A8IN purpose can
t hrellgious
it
that
e
towards the instruction or edification of the public. [(1871) 40 LJ Ch 640
A
R58) indirectly whether object is beneficial to public, customary law and common opinion
or
tirecty deciding parties interested belong must be taken into considetation) +(75)
cOmmunityto which
(216) (DB)] A charity founded as a perpetual charity can never come to an
214
objects may be altered, and indeed, its name may be altered, accord1ngto
among hHCA
endeventhoughits
Bom.
2 [(1954) 1954-1 All.: ER 227 (229)]
oflaw.
proceSs
man kind. The purpose as envisaged in this section must in order to be
due benefit of
the directedtothe henefit of the community or a section of
For
the community. I(1910) 32
intention of the donor is merely to benefit specific individuals the gift is not
2 be
chariable
the motive of the gift may be to relieve their poverty or to accompl1sh
503]Ifeven though the
AW
charitable reference to these particular individuals which would be charitable if nol
in
SOme
other purpose
(A/R 1956 Bom 81]
A charity founded as perpetual charity can never come to ar:
Confined objects may be altered and indeed its name may be altered accord1ng to
so eventhough its AlII ER 227]
due law. [(1954) 1
endprocesSS of,
f
following have been held to be good as charitable gifts:
The
for say1ng masses. [(1930) 99 LJ Ch 232 (234)]
(a) Gift
(14Bang LR 442]
h) Gift for hospitals.
Trust for
promotingthe knowledge of the poor and ignorant inhabitants of a certain
1106 (11 10)1
named place. [(1885) 39 ER
voluntary association having for its object the teaching of ignorant and nursing
(d) Gift to a (640, 651))
of the sick. ((1871) 40 LJCh 640
Ial Git for the purpose of providing or keeping in good order a burial ground. [(1905) 74 LJ
Ch 95 (98)]
(0 Trust for the provision ot play helds parks, gymnasiums for the health and welfare of the
working classes. [(1932) 101 LJ Ch 521
Where the objects of a society were "(a) To acquire and take over as a going concern
ndconduct as a scientific and educational undertaking the, business heretofore carried on as
te Chester Zoological Gardens by Chesters, Zoological Gardens, Limited, together with any
pat of the real or personal property and assets of the company used in connection with that
business. (b) To promote. facilitate and encourage the study of biology, zoology and animal
plysiology, aviculture, aquaria, ichthyology entomology. botany and horticultural and all kindred
sciences andto foster and develop among the people an interest in and knowledge of animal
ie. (c) To establish, equip and carry on and develop zoological parks or gardens and living
k000gical collections at such places as the society shall determine. (d) To establish sanctuaries
r al kinds of wild life. particularly animal and bird sanctuaries and to police in such manner and
al tings necessary for the protection of allanimal and plant life therein." It was held that all
MOs
WLR Under the headings of (a), (b), (c) and possibly (d) were charitable. [(1958) 1958-1
1258 (1264)]
ie tolowing have been held not to fallwithin the class of charitable gifts:
bgest with a direction "that a house for perfoming religious ceremonies to my late
husband and myself be erected." [(1875) 6PC 381 (396)]
 t
270 Transter of Propety Aut, i8b2 Dy ci UNua

(0) Gift merely for the purpose of keeping up a

l1S54) 55 E/ 5n7 (508, 509)]
tomb of the testator

wurlen for the purpose of

ICnapthiserfami-ly1)
and of
() Gift to a voluntary association of
salvation by religious exercise and self-denial ((1871) 40 LJ Ch 640 (65117
working out u
(1895) 64 L Ch
(d) Bequest for the purpse of encouraging mere spots. 695(701))
ten1ple. I(1925) 95
(e) Legacy for the mainten ance and upkeep of ainasonic LJ Ch 46
3. Munammadan law. Principle of this section has been recognized by the (47)|law
[AIR 1939 PC 185 (189)]) Muhammadan
13. Vested interest.Where, on a transfer of property, an interest
created in favour of a person without specifying the time when it is to take thereieffectn is,
or in terms specifying that it is to take effect forthwith or the
on

event which must happen, such interest is vested, unless happening

a contrary of an
intention
appears from the terms of the transfer.
Avested interest is not defeated by the death of the transferee
obtains possession.
before he
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 aprior 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 a
particular event shallhappen the interest shall pass to another person.
SYNOPSI8
1. Vested interest. 4. "Unless a contrary intention Transfer'.
2 "Or in terms specifying that it is to take 5. Vested interest-Transferable and
effect forthwith". heritable.
3. "On the happening of an event which must
happen".
1. Vested interest., Section 19 of the Transfer of Property Act, 1882 provides that where, on a
transfer of property, an interest is created in favour of a personwithout specifying the time when
it is to take effect, such interest is vested, unless contrary shown in the terms of the transferrng
document. It i_ further provided in S. 19 that a vested interest is not defeated by the death or ne
transferee before he obtains possession. According to explanation an intention that an interes
shallnot be vested is not to be inferred merely from a provision whereby the enjoyment thee
is postponed. According to Oxford Dictionary "vested" means "clothed, robed, dressed espee
in ecclesiastical vestments, vested right essentially differ from rights which are contingent Contract
rha
completely created vested interests may perhaps be defined as rights based not upon
conditioF
but upon custom". An interest said to be vested when it is not subject to any rightinit
precedent. Aperson takes a vested interest in property when he acquires proprietary to happen.
An
but the right of enjoyment is deferred till a future event happens which is certain
interest may be a vested one, though its enjoyment may be postponed. [19 DLR 106 (De
 Vested interest
271
vested
interest is when there is an immediate right of
19/ estateor present enjoyrneri or
of future enjoyment. An estate or interest is
ap r e s eAn
anoymenInrti g h t contingent
isto aCCrue on an event which is dubious or uncertain. [AIR 1932 Cal. when600the(609))
rightThis
of
unless thei is tra.ister of property. [AIR 1943 Bum. 7
apply interest
o o e snot
(9)] Intention of
must be gathered from the language
seclion creatiny the
and natural meaning to the words employed by the grantor in
person
qivingthe
plain employed by him. [AIR 1929 PC 149
is to vest in aperson on fulfillment of certain
the
Wherean
grar estate conditions, the intention
151)
the should not vest unless the condition is fulfilled, then strict
clearthat it
the party claiming the estate under the instrument can assertcompliance
that he
is
has
being before the
necessary,
owner of estate. [AIR 1954 Hyd. 185(Pr 23)1
the whether vested or
become
Trust deed contingent-Guiding principles. The determination
1.1 question as to whether an interest of a beneficiary underatrust deed is vested or
of the
contingent has to be quided generally by the principles recognized under section 19 and
Transfer of Property Act, 1882, and sections 119 and 120 of the Succession
21 ofthe Apart from this the question is really one of intention to be gathered
Act,1925. from a
comprehensive View of all the terms of a document. Further, the Court has to approach
of construction in such cases with a bias in favour of a vested interest unless
thetask
intentionto the contrary is definite and clear. (PLD 1957 S.C. (Ind) 261]
the
Compulsory registration applies not only in the case of transfer or declaration etc. of
vested rights but also of contingent rights in immovable property. These terms have not
been defined in the Registration Act itself, but acCording to section 19 of the Transfer of
Property Act a vested interest accrues on a transfer of property when it is created in
favour of a perSon without specifying 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, whereas a contingent interest. as defined in section 21 of the same Act, is an
interest in property which is to take effect oniy on the happening of a specified uncertain
ntor if specified uncertain event shall not happen. Such contingent interest can,
however, ripen into a vested interest on the happening of the event or, in the second
case, when the happening of the event becomes impossible. (PLD 1977 S.C. 109)
1.2 Burden of proof. The burden of proving the contrary intention is on those that assert it,
and the weight of the burden is aggravated by the elimination in the explanation of
circumstances which might. apart from the explanation, be thought sufficient to
discharge it (AIR 1931 Cal. 651 (655))
, M0r in terms specifying that it is to take effect forthwith". Though the disposition may be
etnoned till the lifetime of the settler and though pima facie it may appear that the
isnossession consummates only after his death yet such postponement not being illegal if in a
oiven instrument there is a present dispossession and a vesting of right in preferential and if
Such a conciusion can be arrived at reasonably by reading the instrument as a whole than
mere ambulation of interest during the life time of a settler would not make it a testamentary one.
I1979) 2 Mad LJ 88] Where under the settiement deed there is an immediate vesting of the title
in one moiety of the property to the donee andthere was categorical assertion that possession
of that portion of the property was also delivered such a vested interest cannot be divested by
the adoption of certain follow up recitals which woukd militate against such vesting of title and
Which aiso delimit the force and legality of such entitlement. [(1978) 91 Mad LW 570]
3. "On the happening of an event which must happen". Where an estate is to vest in a
person on fulfilment of certain conditions, the intention being clear that it should not vest unless
he condition is futfilled, then strict compliance is necessary before the party claiming the estate
diuer the instrument can assert that he has become the owner of the estate. (AIR 1954 Hyd
 272 Transfer of Property Act, 1882 by ck eMakonaat
185)Where a deed of settlement gave the
of the estate holder not in
existence at
a person lite estate in property
time of settlement and the
uncertain event, uncertain
to take effect on the happening of specified spes successionis and as to time
with remainder
interest chapter -
of the in chidren
of life estate holder, it was nothing short of vested interest and that
holder in the property during his lifetime was
[AIR 1981 S.C. 1881] If an absolute estate is
denied to B after
of
the lifetime was
children was
interest of thenamely
children ife estdeatale
does coningen not
contingent interest that B gets, but a vested right that he gets and
that of A, MIS
predeceased A. (AIR 1977 (NOC)341] not
4. "Unless a contrary intention Transfer". The burden of proving the mal er B
is on those that assert it and the weight of the burden is aggravated by the
Cont r ay intention
explanation of circumstances which might, apart from the explanation be
discharge it. (AIR 1931 Cal 651] The general policy of law is in favour of
an opposite intention is expressed or has to be implied from the other
law would confuse a grant which was to take effect in future as
eli
thoughtmi
early vesting
provisions
creating
a
n as t
uito
fi
and
the es
of
nci
iennt
unl
he
to
wil the
vested
favour o the grantee from the very moment of transfer. ((1982) 2 Mad LJ 3141
5. Vested interest-Transferable and heritable. Avested interest
includes
innteresl n

user, enjoyment or control over a thing. (PLD 1957 Lah. 752] it is an immediate
immediate
present or future enjoyment and rights are vested in contradiction to being fixed right o
right of
expectpresent
contingent. It must be a title to the present or future enjoyment of property or to the
future enforcement of a demand, or alegal exemption from a demand
ant oror
made by another, (PLD
1965 Pesh. 47] A vested interest is transferable even though there is no
present
(AIR 1925 Al. 389]It can be attached and sold in execution of a decree. [AIR 1934
is a heritable interest which will descend on the death of the owner of the interest to biOudh 954]N
possession
such it is not defeated by the death of the transferee before he obtained possession AAs
Pat. 247] Interest in a property created in favour of person which is to take effect on thede
next reversioner in whose favour prior interest in the properties gifted is created i s o
interest. A vested interest is not defeated by the death of the transferee before he h
possession and is a heritable interest which ion the death of the owner descends of the inda
to his heirs. [ILR (1978) 57 Pat 426]
20. When unborn person acquires vested interest on transfer for his
benefit.-Where, on a transfer of property, an interest therein is created for the
benefit of a person not then living, he acquires upon his birth, unless a contray
intention appears from the terms of the transfer, a vested interest, although he
may not be entitled to the enjoyment thereof immediatelyon his birth.
21. Contingent interest.-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 shal not happen, such
person thereby acquires a contingent interest in the property. Such interesl
becomes a vested interest, in the former case, on the happening of the event, in
the latter, when the happening of the event becomes impossible.
becomes
Exception.-Where, under a transfer of property. a person transferor
entitled to an interest therein upon attaining a particular age, and the
also gives to him absolutely the income to arise from such interest De
 Contingent interest 273
directsthe income or sO much thereof as may be necessary
age, or
e c h e that
s
for hisbenefit, such interest is not contingent.
applied
be SYNOPSI8
p
Contingentinterest-Test 3 Two or more
contingencies.
Muhammadan Law-Not effected. 4. Exceptions.
I
Ruleof interest-Test. Acontingent interest is an interest in the property which is to
Contingent
on the happening of a specified event. One of the features of a cont1ngent
(akeeffectonly
. dies before the contingency disappears and before the vesting occurs,
a person
i sthatif do not get the benefit of the gift. (PLD1957 S.C. (Ind) 261: AIR 1957
interest
such a person
heirs of
the 255)Contingent
interestnot being existing right is not sufficient for suit for declaration of
SC 777
Cal. (SB)]In determining the question as to whether an estate was vested o
(08)35 intention of settler has to be gathered from all the terms of document and the
rght. the
contingent, document has to start with a bias in favour of a vested interest unless the
construction of express and clear. As the acquisition of property in this case was
the Contrary is
intention to
uncertain events, interest of daughters was contingent interest and not vcsted
dependernt on surviving daughter alone was entitled to trust property. [ILR (1966) 2
hence the
remainder and question is as to whether an interest granted under a settlement or a Will is
Wherethe to vested
Cal 470/
contingent the well settled rule of construction is that interest is to be held be
vested| or precedent to vesting is expressed with reasonable clearness. The question is
condition
unless a be gathered from a comprehensive view of all the terms of the
of intention to
(ealy "one 161] Contingent interest does not necessarily require a prior interest
document. "[AIR 1967 Guj always take effect after the termination of a prior interest. (AIR 1960
support and does not and does
for its
609] Contingent interest does not necessarily require prior interest for its support, Bequest
Cal
take effect after the termination of a prior interest.
[AIR 1960 Cal. 606 (615))
not always after her death to testator's nephew if he remains obedient
wife for her lifetime and
otestator's contingent upon his remaining
her Held vested interest postponed till death of wife and
(197)]
obedient to her. [AIR 1944 Bom. 196
rule of Muhammadan
Rule of Muhammadan Law-Not effected. Section 21 does not affect (DB))
bw. A contingent interest cannot be subject of valid gift. [(06) 28 Al. 342 (345)
a person
1 Two or more contingencies. On a transfer of property interest created in favour of must be
otake effect on happening of more contingencies than one-AlI the contingencies
fuliled before interest can become vested. [(1860) 54 ER 435 (437)]Transfer made by which
interest is created on fulfillment of two contingencies in the alternative Estate would vest on
either of them happening-Neither of the contingencies happening-Estate does not vest. [(1871)
40 LJ Ch 316 (371)]
4 Exceptions. Property given to such members of a class of persons as shall attain a
panlcülar age and income directed to be applied for their benefit without specifying at the same
e nat the income from the respective shares should be applied for their benefit-Interest taken
ngent. ((1902) 71 LJCh 680 (682)) Testator, after stating that his wife was. in the family
Hay. directing the executor to maintain the testator's wife, the expected son or daughter and the
executor himself, out of the properties and effects bequeathed-Further declaration that should a
Son be born he also should be cherished and maintained and educated and brought up. And
when he Comes of age the executor should make over the whole of his remaining properties to
he said Son. Held, that it Could not be said that there was any definite ascertained interest "to
arise from the fund" within S. 107 of the Succession Act, 1865. [AlR 1925 PC 27,(28, 29))
274 Transter of Property Act, 1882 by K. Maknoot
22. Transfer to members of a class who
attain a
on a transfer of property, an interest therein is created in
in particularfavourchapter -
members only of a class as shall attain a particular age
vest in any member of the class who has not attained that age.
23. Transfer contingent on happening of specified
such interestage.her
of

Where, on a transfer of property, an interest therein is to

person if a specified uncertain event
uncertain
accrue
shall happen, and no time
to a event

event happensspecfied
is mentioned fo
the occurrence of that event, the interest faiis uniess such
or at the same time as, the intermediate or precedent interest
24. Transfer to such of certain persons as sunvive at to exis ceases beiore
specified.-Where, on a transfer of property. an interest therein is to period
not
some
such of certain persons as shail be surviving at some period
period is not specified, the interest shail go to such of them as but the exa
accue to
shall be
when the intermediate or precedent interest ceases to exist, uniess
a alive
intention appears from the terms of the transfer
Illustration
contrary
Atransfers property to Bfor ite. and after hs deatth to Cand
them, or to the survivor of them Cdies durng the e
D equaly to
be dinded
passes to D.
of B Dsuvrves B Al Bs deatn heeen between
25. Conditional transfer.-An interest created on a transfer of property anM
dependent upon a condition fails if the fulfiliment of the condition is impossible
or is forbidden by law, or is of such a nature that, if
permitted, it would defeat the
provisions of any law, or is fraudulent. of nvolves of implies injury to the person
or pioperty of another, or the Court segards it as immoral or opposed to pubic
policy.
(a) Alets a farm to B on conditon that he lustrations
shal wakahungred mes ti an Dour The lease is vod
(b) Agives Rs. 500 toB on conditon ha: he shaf marry As
was dead. The transfer is void dauglerC A! the date of the trarster
(c) A transfers Rs 500 to B on conditon that
she shal urder C The transter s vod
(d) A transfers Rs. 500 to his niece Cit she wil desert her
hustand Thie trarsfer S vod
26. Fulhfillment of condition
precedent.-Where the terms of
impose a condition to be fulfilled before a person can take an interestpropey
in u
property, the condition shali be deemed to have been fulfilled if it has u
substantially complied with.
(a) llustrations
Atransfers Rs. 5,000 to Bon conaition that he shall marry with the consent of C Dand E
marries with the Cunsent of C and D. Bis deemed to
have futfiiied the
condition
 Conditionaltransfer to one
person coupled with
taISfers Rs. 5,000 to B
and E,condi
on transfer to
but tion that he shal niarry wianot her on
C D
) A
the consent of failure.
obtains their Consent after th the consent 275
the of
Conditional transter to marriage. Bhas GD and E 8
one not fulfiled the
27.
of prior disposition,- person coupled
hereini s created in favour of
one-Where,
person,
on a
transfer
with
of transfer to
another
disposition of the
yterior same interest is
made
and by the
in favour ofsame
property , an
interestan
dtsposition under the transfer
failure of the prior
shall fail, the ulterior transact
another, ionprior
if the
the
ypon
in
DCCUred disposibytion,the although dithesposifailure
the manner contemplated tion shall take effect
may
not have
But, where the intention transferor.
of the
disposition shall take effect only in theparties the transaction is that the
to
particular manner, the ulterior
event of the prior ulterior
dispositionfails in that manner. disposition shall di sposi
not take effect tion failing
unless the
in a
prior
Atransfer Rs. 500 to B 0n condition Illustrations
that he
death, and if he should neglect to do so, to C. shall execute a certain lease within three
dies in A's liftetime. The
disposition in favourmonths
A's after
efec!. of C takes
(b) Atransfers property to his wife: but, in case she should die
transferred to her. Aand his wife perish together, in his
lifetime transfers to Bthat which
he had under
provethat
she died before him. The
disposition in favour of Bdoes circumstances
not take effect.
which make it impossible to
SYNOPSIS
1. Scope. 2.
Sale of suit land through
Cenne, Section 27 of the Iranster of Property Act, mutation.
larest is created in one of one person, and by the 1882, where, on atransfer of property, an
same
$ame interest is made in favour of another person thetransaction an ulterior disposition on
alerior disposition shall take effect. But where the prior disposition shall fail and the
disposition shall take effect only in the event of the prior intention of the parties is that ulterior
the ulterior disposition shall not take effect unless the disposition failing in a particular manner,
prior disposition fails in that manner. This
section does not apply unless the prior and ulterior disposition refer to the same interest. [AIR
1942 Sindh 145] If the prior disposition is void ab initio the
the principle embodied in S. 16. [AIR 1942 Bom. 155] Award subsequent disposition also will fail on
in respect of religious endowment
agreed by parties as binding providing for appointment of sons of dedicator as manager each for
Iem of 21 years in succession and after them eldest son of each of these
sons each for same
em. Eldest son of dedicator acting as manager for 21 years-Second son dying before expiry of 21
yeafs and third dying before second son-Principle underiying S. 27 held applicable and eldest son
DuOn of dedicator was entitled to succeed as manager after death of second son. (AIR 1932
Oudh 161] Agift made to ason, to be adopted by the wife of the testator and if the adopted son
Qied without issue
the lifetime of the widow then to the daughters of the testator in equal shares.
The adoption was founa to be void ab initio: Held that the gift over in favour of the daughters would
take efect although the contingency upon the happening of which it was to take effect had not
happened in the way contemplated by the wil . [(O8) 35 Cal. 896; 35 Ind App 116 P]
 Property Act, 1882 by c%. Kaknood
276
2. Sale of suit land through
ethcacy due to expiry of
Transter

period
of
mutation. Plea of vendor that first agreement had
fixed there in for performance.
Vendor had not
had neither
[Chlaopslter I-)cgal
denied Is

wntten statement nor alleged so

plaintiff. Subsequent
in
vendee
of sale agreement in favour of examination-in-chief except that he had raised
of sale deed in favour of plaintiff by vendor.
such execuion
enquired from plea in
Sub-Registrar about registration
ofice
of
vendee did not deposeto the effect that before
thed to contact plaintiff. Subsequent vendee forvendor
Object to maintainability of suit particularly
when
entering into subsequent sale

had not
Subsequent,
agreement
being hit by principle of lis pendense cannot
challenged decree of trial
he had
2011 YLR 2232] Coun
28. Ulterior transfer conditional on happening or not
specified event.-On atransfer of property an interest therein may be
to accrue to any person with the condition superadded that in case a
happenincrgeatedof
uncertain event shall happen such interest shall pass to another speci
person, or fthat
ie t
in case a specified uncertain event shall not happen such interest shal
another person. In each case the dispositions are subject to the rules pass
to
in sections 10, 12,21, 22,23, 25 and 27. contained
SYNOPSI8
1. Scope. 3. "Specified uncertain event".
2. Imposition of condition. 4. Concurrent jurisdiction of Trial Court
1, Scope. Section 28 of Transfer of Property Act, 1882 deals with a.case in
which on tho
happening of a specified uncertain event the property transterred is to pass to a second donoo
whereas, S. 31 refers to a mere cesser of the first donee's interest on
specified uncertain event, in which case the property will, in ordinary cases, the happening of a
[AIR 1935 Pat. 401] Where there is a gift of any revert tò the donor.
interest in favour of a donee subject to the
condition that if the donee died during his minority or before he was
pass to another person, what is really conferred on the married the interest shll
donee is only a life estate and the
absolute estate passes to the donee or donees on the happening of
event. [AIR 1957 Trav Co. 167]Where there the specified uncertain
is no defeasance of the prior
cannot come into operation. [AIR 1928 Oudh 67] On the interest, the gift over
which the interest created is to pass to another happening the uncerlan cvent or
of
gift over takes effect. [(12) 14 Ind Cas 708 person, the prior estate is put to an end and ne
and Dwhich was to be paid to them as and (DB)] A testator begueathed afund to his sons B.
the condition that in case any son died when they attained the age of 21 years, subject
before
share was to go to his issue. Bdied before the the period of distribution to him of his share, e
died he made a will bequeathing his period of distribution leaving issue, but beiole
share to his wife. It was held that on
distribution his estate was his deatn be
to the property was not divested and passed to his issue and that, therefore, the wife's claim
2.
sustainable. [(84) 6 All. 583 (DB))
Imposition condition. Imposition of a condition
of
of mak1ng
transfer and not subsequently. [(83) 6 Al. should be made at time
deed of
agreement, whereby the donor was entitled to313] Where the deed of gift and the spec1iled
event mentioned under S. 126 revoke the gift upon of a
were executed as wo and also upon
specified uncertain
happening
events mentioned in S 31.
separate documents but on the same that both
formed
date, was
it held
 Fulfillment of condition subsequent 277
transaction and must be read together and fell within the
the same
599(Prs. 5, 6, 8, 12, 13)] purview of Ss. 31 and
ant
o f 1951 All.
"Specified
AIR uncertain event". The contingency should be so expressed as not to leave it in
26
doubtful or uncertain what the
9Y
egree
contingency in which is
(470) The uncertainty referred to in the intended to defeat the prior
(1655) 3 Drew 451
hagpening the event and notin the language in which it is expressed. section
of, [(84) 6isAll.uncertainty
583 (DB)]in the
estale
Concurrentjurisdiction
of Trial Court. VWhen twO or more
the matter and parties to a Courts have concurrent
wrisdiction
4 in contractldispute choose to
agreement is not violative of law. confer jurisdiction upon one
ofsuchCourts. then such Court so chosen assumes
matter. (2017 CLC 518, 1987 SCMR 393 rel.]
inthe
urisdiction
29. Fulfillment of condition subsequent.-An ulterior disposition of the
contemplated by the last preceding section cannot take effect unless the
isstrictlyfulfilled.
kind
Condition
Illustration
Atransfers Rs. 5000to be paid to him on his attaining his majority or marrying, with a proviso that if
or marrnies without C's consent, the Rs. 500 shall go to D. B
diesa
minor marries when only 17 years of
B without C's conSent. The transfer to Dtakes effect.
age,
NOTES
Coone. The condition, such as is reterred to in S. 28 becoming impossible of fulfillment
through no act or default of the person who has to perfom it will be treated as void. Transferee
of prior interest will take estate absolutely. [(1739) 26 ER 407 (408)] Where the gift over clause
sambiguous it should be construed in such a manner as not to divest an interest already
s Ap 1925 Mad. 599 (605)] Gift with a condition.that if the donee did not reside in the
ea given the house should pass to another person-Occasional use of the house by donee by
ctablishment in it with intention of again using it as residence: Held, gift over did not
we effect as residence contemplated was not exclusive residence. [('74) 1Ind App 387] Nhere
bequest was made to Aon condition that if she should have no legitimate children, then the
yOperty was to pass to B. Ahad one legitimate child born alive who died before her. Held. that
since Ahad a child though subsequently dead the event contemplated happened and that the
got over did not take effect. Ahad the estate absolutely. [(1810) 33 ER 1041)
Apartition deed between A and B provided as regards certain land that its usufruct was
set apart for the maintenance of their mother and then provided as follows: "We shall divide the
properties after defraying the funeral expenses of our mother. The land of the person that does
not contribute to the said expenses shall be enjoyed by the person who contributes". A did not
Contribute: Held, that the clause as to contribution was one of defeasance, that the words "if
elther of them does- not contribute." must be construed as meaning "if either of them
refuse to
Contribute and that the mere failure ofAto contribute did not divest him of his vested interest.
(12) Ind Cas 256 (DB)] Atransfers property to B.subject to a condition that on his failure to
Polom a particular act it shall pass to another person. B is not able to do the thing by
reason of
hmprisonment.
OVer does not The non-performance of the act will not divest the estate and the gift
take effect. [('93) 20 Cal. 15(DB)]
278 Transfer of Property Act, 1882 by c. hakot

30. Prior disposition not affected by invalidity of ulterior IChapter -

the ulterior disposition is not valid, the prior disposition is
Illustration

Atransters afamm to Bfor her life, and if she does not

farm duning her ife as if no condition had been inserted.
NOTES
desert her
not
dispositentonile,d
affected
husband, toC. EBis
by it.
to the

Scope. An ulterior disposition on the happening of a condition

WN 671 N(677)] Where prior which is
reason would not take effect. [(99) 4 Cal.
condition of defeasance with a gift over and the condition is valid but disposition
invalid
becomes is tor
impossible of fulfillment, the ulterior disposition fails. The prior disposition he subje ct toany a
free of the condition. (AIR 1924 All. 625] Atransfer to Afor life with a
amounting to altering the legal course of inheritance would be invalid So far as
the subsequent subsediqsupeosnttlioyn
becomes absolute and
disposition is concerned. [AR 1931 PC 179]
31. Condition that transfer shall cease to have effect in case sspecified
ubsequent
uncertain event happens or does not happen.-Subject to the
position off S.
12 on a transfer of property an interest therein may be created with thhe
superadded that it shall cease to exist in case aspecified uncertain condition
happen, or in case a specified uncertain event shall not happen. event shall
Illustrations
(a) A transfers a farm to B for his life, with a proviso that, in
case B cuts down a certein u .
transfer shall cease to have any effect. B cuts down the wOOd. He loses his
(b) Atransfers afarm to B provided that, if B shall not go to life-interest in the farmn
the transfer. his interest in the farm shall cease. B does not England within three years after the date f
go to England within the term prescribed He
interest in the farm ceases.

8YNOPS1S
1. Condition, subsequent. Revocation of gift deed.
2.
1. Condition subsequent. Section 31 of the Transfer of Property Act, 1882.refers to condition
subsequent which terminates an interest and reverts the property in the grantor. It provides that
on atransfer of property an interest therein may be created with the
condition
shall cease to exist in case aspecified uncertain event shall happen, or in case superadded.that t
aspecitied
uncertain event shall not happen. As illustrated where A transfers a farmn to Bfor his life, With a
proviso that, in case B cuts down a certain wood, the transfer shall cease to have any eneu.
cuts down the wood. He loses his life-interest in the farm. The illustrations given under S.
sufficiently suggestive of the position that a specified event contemplated under thatbusiness"
Se
must be definite and specific and a wide and vague clause of the nature "any other
the prohibition of which is inserted as a trm in a lease deed
uncertain event. [AIR 1957 Orissa 35) This section applies cannot
only tobe ataken to be atransfer
completed spr ofof
property creating an interest therein with a condition
contingency, but has no application superadded for its Cessol superadded eradded
thereto. Thus, where in a sale deed it to
was aprovided
contractthat
for if transfer with dida condition
the vendee not pay the amountof
the price retained by him to the creditor of the vendor within a certain time, the sale deed woud
be deemed to have been cancelled, and the yendee failed to pay the price to the creditor within
 Such condition must not be invalid 279

Court gave him further time to pay, it was held thát the contract of sale and the act
the
and
were embodied in the same deed and the condition was to be regarded as an integral
oMne
transter
f contract for sale providing the date for completion of the contract by satisfaction
conditionof
the contract price, and not as a condition superadded to the transfer itself, and,
balance ofthe
the thetransfer
was not defeated. It was held that there was nothing in section 31, which
of upon a condition subsequent is a lawful method of grant, to
therefore, that a limitation
declared
merely of the Court to give relief to the vendee who failed to make payment of the
exclude the right agreed upon in the contract of sale (b). Where Aexecuted a document in
the date
effect: "| sell property to you. | have received consideration as
price
by
of Bto the following
favour kept Rs in deposit with you for payment to my creditor B and have
have
follows: I balance of Rs. in cash. Youshould go with me to B. I shall request Bfor
receivedthe you should pay Bthe reduced sum and the balance to me. If you
andif he reduces it,
remission by 30th December 1925 this sale-deed shall stand cancelled": Held
as aforesaid
pay B
failto document contained both a contract of sale and an act of transfer of the property, that
that the of the contract of sale and not of the transfer of property, and that S. 31
clause was part
thelasteXclude
not
the right the Court to give relief to the purchaser who fais to make payment of
of
did
the date agreed upon in the contract of sale. [AIR 1936 PC 24]
the priceby
Revocation of gift deed. Aan old widow, with none else to took after her, out of love and
2. of her entire property in favour of B an outsider to family. On
affection, executing a gift deed
day, B, by executing a deed accepted deed on condition that he will maintain widow till her
same Rfailed to maintain. Gift held liable to be revoked. Both deeds taken together superadded
th
condition to gift and the condition tormed an integral part of transaction and could not be
ed from gift. (AIR 1968 Assam 50] Gift of one property for construction of Government
PMlane with superadded condition that in case college is not built on the very sale, the interest
tthe college committee in land gifted would cease and another gift empowering college
committee to sell property advantageously and utilize the money for construction of college but
wihout a defeasance clause. Section 31 was attracted to the former gift but not to the latter.
AIR 1987 Kant 227]
32. Such condition must not be invalid.-In order that a condition that an
interest shall cease to exist may be valid, it is necessary that the event to which
trelates be one which could legally cònstitute the condition of the creation of an
interest.
8YNOPS1S
1. Scope. 3. Condition illegal.
2. Provisions void for
repugnancy.
nlerepe. Section 32 of Transfer of Property Act, 1882 provides that a condition that an
one whlceased to exist should be valid. It is necessary that the event to which it relates be
tanstarOuld legally constitute the condition of the creation of an interest. To illustrate if A
transfers his field toB with a proviso that if Bdoes not within a year set fire to C's haystack his
Interest shall cease. The condition
section subsequent is invalid and B's interest is not affected. This
not affectcontains
a analogous provisions as of S. 30. Under s. 30 an invalid ulterior disposition will
prior
Intaerest to which it interest; under this section no invalid condition subsequent will divest the
is attached. Acondition which is void as a condition precedent is also void as
condition subsequent. Acondition that if the legatees should live with their father they should
 280 Transfer of Property Act, 1882 by ck, oKaham

required by the first donee of the absolute

[(1912) 81 LJ Ch 800 Gift
forieit the legacy, is void for uncertainty. interest, is void
testator devised his welling house and other property
son H) who should be a member of the Church of England and
"to
for
the eldest of
an
over of
uncertaintthey. [AIR what19921
adherent tosonsthe ofdo
Chapter Lah. 1
Church" and in case there was no such son of F, then on death of F
W. It was held, that the condition was void for uncertainty. ((1953) 1 AI
reserved the donee right to revoke the gift in the event of failure of donee
the condition set bythe donor did not suffer for legal Iinfirmity. [(1988) 2L
the
to pay
ERpropet
308)y was docine dta
\Where deised't
Acondition subsequent altering the legal course of
opposed to public policy. (AIR 1931 PC 179) A, who was under a
life, transferred property to Bsubject to the condition that in
serving his sentence, the property shall revert to him, that the
LS
inheritance
the
would
(AP) 182]
be
void as beins
sentence of
event of A.
to
mtraainntsepnoartcaeli,otnn
condition
Mad 67] Atransfer of property to the wife so long as she continued the
widow of the husband with gift over in case the marriage is dissolved
was legal
is
ate
cohabi retun
not ting Wie
[i
AnIg
R 1923 or
cease was held to be valid. [AIR 1932 Cal 350] Acondition unchaste life opposed
policy. [(1904) 20 TLR 282] Condition that if the legatee leads an t0 thR
the grant putik,
subsequent
the event of marriage without the consent of some persons named causing a shoucin
293] Hgave certain property to Wwho was his mistress but who
is
valid. [(1905)
lived with him
condition of her continuing to be his wife and remaining obedient to
53 forfWRetu(rEeng
condition was not immoral. [(1879) 2 All 433] him, it wasas heldhis
wfe, on
2. Provisions void for repugnancy. A that he
testator after conferring absolute
a Son, his estate on his SOns
said in a subsequent clause that if any son died without
should not inherit the property it was held that the clauseleaving widow or
repugnancy. daughters
was void for
Cal. 226] The testator gave absolutely to his wife
she did not dispose of during her lifetime shouldcertain properties, but provided that[AIR 1939
community. It was held that the proviso was void tor go for the education of the whatever
absolute gift was made by Ato B, but
kharij between the parties Astated certain
repugnancy 1(1889) 13 379] Where an
subsequently in a petition by A to the Mad
Anglo-Bndian
was treated as inefficacious for that conditons as being attached to theCollector for dakhl
gift The nelibes
purpose. [(1883) 6 All 313] Where a property was
absolutely with all rights to a Theosophical Society for the use and benefit of the Society Conveve
condition that in the event of the property not being required for the abOve with a
revert to the donor on his paying to the purposes, would
it
held that the reverter clause was not Society the then estimated value of the building, it was
one of defeasance. [AIR 1951 Mad. one of repugnancy to the absolute estate, but was, if at all
798] Will by A
shares of my providing:-"After
three daughters wil be maliks in equal my death my son Land my
dies childless then my property. If my son Lcannot be
daughter T will become owner of his share"- Held married and
conferred upon L was subject to defeasance that estate which was
defeasance clause was not opposed to any rulein ofthelaw.event of his dying without issue-Such
absolutely to his wife certain properties, but provided that [AIR 1956 Punj 45] The testator gave
her lifetime should go for the whateyer she did not dispose of dung
education of the
proviso was void for repugnancy. ["89) 13 Anglo-lndian
absolute estate to the donee and in community-lt
Mad. 379) In a case where thewas helo ia
donor grants a
of the
contingency the subsequent clause in the deed provides that on happening
donee by exclusion of absolute estate would be cutailed to a life estate after the death of the
all the heirs at law
defeasance of the donee from
clause as it defeats or inheritance, such a clauseis
[AIR 1982 Cal 158] extinguishes the absolute estate and not repugnantclause
 Transfer conditional on performance of act, no time being specified for performance 281
33]
(3.
illegal. Where a condition subsequent is illegal the transfer takes effect as if it had
3Conditionwithout any conditions whatever. [AIR 1926 Cal. 561 (563)]
been made
2 Transfer conditional onperformance of act, no time being specified
r performance.-Where, on a transfer of property, an interest therein is
oeated subject to a condition that the person taking it shall perform a certain act,
hut no. time is specified for the performance of the act, the condition is broken
when he renders impossible, permanently or for an indefinite period, the
performance of the act.
NOTES