Introduction – ‘Vest’ meaning and differences Contingent Bequests Conditional Bequests Validity of conditions subsequent & forfeiture of bequest – with reference to S. 134 Defeasance clause – distinguished from repugnant clause Conclusion

1. Validity of Contingent and
Conditional Bequests
By
Utkarsh Kumar
Symbiosis Law School, Pune
IInd Year
Tel: +91 7666122227
Email: utkarsh.kumar@symlaw.ac.in
30 May 2014

2.  Introduction – ‘Vest’ meaning and differences
 Contingent Bequests
 Conditional Bequests
 Validity of conditions subsequent & forfeiture of bequest – with
reference to S. 134
 Defeasance clause – distinguished from repugnant clause
 Conclusion
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Presentation Outline

3. Introduction

4. Vest- Meaning
• ‘Vest’ may mean full ownership or only possession for a particular
purpose or clothing the authority with power deal with property as agent
of another person or authority. – Fruit and Vegetable Merchants Union vs.
Delhi Improvement Trust AIR 1957 SC 344
• A bequest is said to be vested in interest, where there is a present
indefeasible right to the future possession or enjoyment, e.g., a bequest to
A for life with remainder to B. B does not have the immediate possession
of the bequest so long as A is alive, but his interest is vested, and if B
predeceases A, his legal representative will be entitled to it. Also, if A dies
in the lifetime of the testator, B will take the legacy. – Venkayamma v
Narasimma (1917 )ILR 40Mad 540
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5. Distinction between vested interest
and contingent interest
• An interest is said to be vested interest when there is an immediate right of
present enjoyment or a present right for future enjoyment. An interest is said
to be contingent if the right of enjoyment is made dependent upon some
event or condition which may or may not happen.
On happening of the event or condition, a contingent interest becomes a
vested interest- Usha Subba Rao v B.E. Vishveswariah AIR 1996 SC 2260
• The fundamental difference is that an interest is vested which is to take effect
on happening of an event which is certain and an interest is contingent when
the right depends on the happening of an uncertain event which may or may
not occur. – Smt Kapuri Kuer v Sham Narain AIR 1962 Pat 149
• Another important point of distinction between the vested interest and the
contingent interest is that the former is transferable and attainable while the
later is not attainable. – Pestongi v P.H. Anderson AIR 1939 PC 6
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6. Contingent Bequests

7. Definition
• A bequest is said to be contingent when its vesting depends upon the
happening or not happening of a specified uncertain event.
• In other words, estate or interest is contingent when the right of
enjoyment is to accrue on an event which is dubious or uncertain-
Basanta Kumar v Ramshankar 1932 Cal 600
• The testator in a will created life estate in favour of his wife, son and
daughter-in-law and therefore to his son’s children. It was held by the
Madras High Court that the interest in favour of son’s children is
contingent i.e., he would acquire absolute interest only if he survives the
settlor’ son.- Pankajammal v Official Trustee of Madras (1978) 91 LW 331
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8. Scope of sec. 124 The Indian
Succession Act, 1925
S.124. Bequest contingent upon specified uncertain event, no time being
mentioned for its occurrence.—Where a legacy is given if a specified
uncertain event shall happen and no time is mentioned in the will for the
occurrence of that event, the legacy cannot take effect, unless such event
happens before the period when the fund bequeathed is payable or
distributable.
• This section applies only to cases strictly coming within its scope and
where no time is mentioned in the will for the occurrence of contingent
even on the happening of which the legacy is to go over to another person
– Bhupendra v Amarendra (1914 )ILR 41Cal 642
• Applicable to all classes of property there being no distinction, in India,
between immovable and movable, or real and personal property –
Narendra v Kamalbasini (1896) I.L.R. 23 Cal 563
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9. Scope of sec 125
S. 125. Bequest to such of certain persons as shall be surviving at some
period not specified.—Where a bequest is made to such of certain persons as
shall be surviving at some period, but the exact period is not specified, the
legacy shall go to such of them as are alive at the time of payment or
distribution, unless a contrary intention appears by the will.
 The rule laid down in this section is taken from Cripps v Wholcott 4 Mad 11
and it is as follows:
That if the legacy be given to two or more equally to be divided between
them or to the survivors or survivor of them and there be no contrary intent
to be found in the will, then the survivorship is to be referred to the period of
division. If there is no previous interest given in the legacy, then the period of
division is the death of the testator, and the survivor at his death will take
the whole legacy.
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10. Conditional Bequests

11. Definition
• A conditional legacy may be defined to be bequest, the existence of which
depend upon the happening or not happening of some uncertain event
by which it is either to take place or to be defeated- Roger on Legacy, third
edn., Vol I, p. 645.
• Contingency & Condition:
Conditional bequests are not the same as contingent bequests. The word
‘contingency’ has reference to the happening of an event; the word
‘condition’ has reference to the doing or forbearing from the doing of
some act.
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12. Chapter XI – Conditional Bequests
• Conditions are of two kinds- condition precedent and condition
subsequent. The former precede the vesting of estate ( Veerabhadhadra v
Chiranjivi Raju 1905 LR 32 IA 105), the latter are to be performed after the
estate has become vested and if not performed may, in many cases, cause
interests already vested to be delivered or to be altogether void.
• In case of doubt as to the nature of the condition, the presumption is in
the favor of treating the condition subsequent.
A bequest was made to the son of the testator with the following words:
‘These devices shall take effect upon my son attaining the age of 25 years’.
It was held that the words ‘shall take effect’ were not intended to impose
a condition precedent but they related to the devise taking effect in
possession, and the devise was construed as vesting in the death of the
testator subject to divestment if the legatee failed to attain 25. – Gagriel
Tagonu v Evan Adeleye AIR 1939 PC 123
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13. Validity of conditions subsequent &
forfeiture of bequest

14. Hindu and Mohamedan Law
• Hindu law - Valid: The Privy Council held that the conditional limitation,
which, by borrowing terms from English law, was called an executory bequest,
was valid according to Hindu law. They considered that there was nothing
against public convenience, or against the principles of Hindu law, in allowing a
testator to give property, whether by way of remainder or by way of executory
bequest (to borrow terms from the law of England), upon an event which was
to happen.- S.M. Soorjeemoney Dossee v. Denobundoo Mullick 9 M.I.A. 123
(135)
• Mohamedan Law - Invalid: Disposition by way of will given in future or subject
to contingency or conditional one is void under Mohamedan Law i.e. bequest
creating 'wakf' contingent upon lifetime of Mussamat Kariman invalid as per
S. 124 of Mussalman Wakf Validating Act, 1913 (S. 124. Contingent wakf not
valid.— It is essential to the validity of a wakf that the appropriation should
not be made to depend on a contingency.) . - Punjab Wakf Board V Shakur
Masih AIR 1997 SC 104
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15. Scope of S. 134
S. 134. Bequest conditioned that it shall cease to have effect in
case a specified uncertain event shall happen, or not happen.—A
bequest may be made with the condition super-added that it shall
cease to have effect in case a specified uncertain event shall
happen, or in case a specified uncertain event shall not happen.
– This section is departure from English law, viz., that a gift may be
made coupled with a condition that on happening or not happening
of a specified uncertain event it shall cease, and that to effectuate
the defeasance a gift over is not necessary as required by English
Law. In England, it is treated as in terrorem.
– The condition referred is condition subsequent which terminates
an interest.– Gopaldas v Hemandas AIR 1942 Sindh 145.
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16. Validity of Section 134

17. Condition must be legal as given in S. 135
S. 135. Such condition must not be invalid under section 120.—In order that a
condition that a bequest shall cease to have effect may be valid, it is necessary that the
event to which it relates be one which could legally constitute the condition of a bequest
as contemplated by section 120.
• If the condition subsequent is illegal, the gift will be good and the condition void. If the
rule is invalid, failure to comply with it does not involve forfeiture.
A testator bequeathed an annuity to his wife, according to the terms of the will, it will
be forfeited if she did not live in the family house which she intended to built; but died
without building. It was held that the condition was void for impossibility and his wife
was held to be entitled to the annuity. – Satish Chandra v Sarat Subdari (1971) 38 IC
103
• There is a difference in the effect of illegality of condition which are precedent and
conditions which are subsequent. If the condition which is illegal is a condition
precedent, then the bequest which depends on it does not take effect. On the other
hand, if it is a condition subsequent, the prior bequest does not fail and it takes effect
as if there is no condition. – Lalit Mohan v Brajendra AIR 1926 Cal 561
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18. Condition of residence
• A will created by a Hindu testator conferred absolute interest so long as he
resided in the house of the testator. It was held to be valid condition. – Ambica v
Sashitata 22 CLJ 61
• But a breach of condition not due to any fault of the legatee but committed under
duress (i.e. as a result of violence, threat or other pressure against the person)
cannot operate as forfeiture. – Tincowri v Krishnabhamini 20 Cal 15
The testator in his will provided that if any of the female member of his family
members of his family, either on account of some misunderstanding or from any
other cause lived in a place other than a hold one, for more than three months,
except on pilgrimage, they would should forfeit their right under the will. A
widowed daughter in law (minor) was removed from the testator’s house by her
maternal relations and brother with the aid of police and resided for more than
three months with her mother. It was held that under the present circumstances,
minor’s absence did not operate as a forfeiture of her right.
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19. Right to alienate in case of
Absolute estate

20. Navalchand v Manekchand
AIR 1921 Bom 25
Facts:
A testatrix bequeathed her property to her daughter’s son but the devisee was not
to get the full ownership until he had a son or daughter 20 years old and if he died
without children then it would be a gift over.
In this case, a question was raised that the first legatee taking an absolute estate
should be restrained from alienation the property until the condition was
fulfilled. The judgment on this point is as under:
Held:
The general idea in law is that the gift of an absolute estate implies that the
donee's powers of alienation cannot be restricted in any way. But though the law
does recognize that an absolute estate can be brought to an end, it nowhere
prescribes what restraints can be imposed upon the enjoyment of the owner of
such an absolute estate while it is uncertain whether the event will happen which
will cause it to be defeated. In the absence of any authority we must hold that
there can be no attempt to restrain the powers of alienation in this case.
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21. Defeasance clause

22. Introduction
– The word “defeasance” is derived from the French
word “defaire” which means to defeat or undo.
Defeasance, therefore indicates that which may be
annulled, abrogated or avoided.- Kadiyala
Venkatasubbaiah and Ors. Vs. Sarupuri
Narayanamma and Ors. AIR 1972 AP 341
– Calcutta High Court has interpreted as to what
constituted a defeasance clause. Where the donor
grants an absolute estate to the donee and in a
subsequent clause in the deed provides that on the
happening of a contingency the absolute estate
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23. Defeasance clause distinguishable from a repugnant
clause
• A defeasance clause is distinguishable from a repugnant clause dealt with
in section 138, repugnancy comes into play where an estate is given to a
named donee an absolute interest and a further interest is created merely
after termination of the first donee’s interest and not in defeasance
thereof, the further interest will be void for repugnancy.
• Where a testator gave absolute liability estate to wife with power of
alienation and then added a clause to the effect that if at the death of his
widow, there was no adopted son, or no son or wife of such adopted son
was in existence, then the estate should go to the heirs-at-law, it was held
that gift over was invalid- Suresh v Lalit 20 CWN 463
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24. Cont…
– The testator made an absolute gift to his son G and
then provided “when the sons of my son G shall
attain age of 21 years, the same shall be divided and
duly received by G and his sons in equal shares”. Held
that gift to grandson was void for repugnancy and
the absolute estate of G remained unaffected. -
Anandrao v Administrator- General ILR 20 Bom 450
– Testator made an absolute estate to a legatee with
condition superadded that the legatee shall
personally live in the house and that if he does not
live personally in the house, his interest shall and the
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25. Conclusion
Suresh Chand Mathur vs Harish Chand Mathur
(2011) ILR 1 Delhi 632
 The distinction behind a repugnant provision and a defeasance provision is
that where the intention of the Testator is to maintain an absolute estate
conferred on the legatee, but he simply adds some restriction, in derogation
of incidents of such absolute ownership, such restrictive clause would be
repugnant to the absolute grant and, therefore void, but, where the grant of
an absolute estate is expressly or impliedly made subject to defeasance on
the happening of a contingency and where the effect of such defeasance
would not be a violation of any rule of law, the original estate is curtailed and
the gift over is taken to be valid and operative.
 Section 138 thus provides for divestment of the estate which has already
vested, but is subject to divested by some act or event at an after period.
 The defeasance must be in favour of somebody in existence at the time the
bequest is made.
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26. Questions?

27. Thank You
© Utkarsh Kumar