Condition Subsequent (Ss. 129-137 of the Indian Succession Act, 1925)

Conditional bequests are those bequests which take effect only if certain conditions are fulfilled. Conditional bequests should be distinguished from contingent bequests. While contingent bequests are dependent upon the happening of some events, conditional bequests require the doing or absistence from doing of certain acts. Sections 126 to 137 of the Indian Succession Act, deals with conditional bequests. Sections 129 to 137 of the Act, deals with condition subsequent.

Conditions are of two kinds: conditions precedent and conditions subsequent. The former precedes the vesting of estate, 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 divested or to be altogether void. Where the condition is precedent, the estate is not vested in the grantee until performed, but where the condition is subsequent, the estate vested immediately in the grantee and remains in him till the condition be broken. What is a condition precedent and what is a condition subsequent must be ascertained from the wordings of the will as there is no particular format or language required.

A makes a gift of his property to B on a condition that B shall marry with the consent of C, D, and E. B marries with the consent of only C and D because E died early. In this case, the property stands transferred in favour of B as he fulfilled the condition precedent imposed by A.

‘A’ transfers a farm to B with a subsequent condition that if B goes to England within 3 years from the date of such transfer, his interest in firm shall cease to exist. B went to England within 2 years of such transfer. In such a situation, his interest in the farm shall cease to exist as he did not comply with the condition subsequent to the transfer of property.

Provisions for Condition Subsequent:

According to Section 129 of the Act, where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.

Illustrations:

1. A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect.
2. A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A’s death, and, if he should neglect to do so, to C. B dies in the testator’s lifetime. The bequest to C takes effect.

According to Section 130 of the Act, where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.

Illustration:

A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him, the bequest to B does not take effect.

According to Section 131of the Act,

1. A bequest may be made to any person with the condition super-added, that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.
2. In each case the ulterior bequest is subject to the rules contained in sections 120, 121, 122, 123, 124, 125, 126, 127, 129 and 130.

Illustrations:

1. A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attains that age, to B. A takes a vested interest in the legacy, subject to be divested and to go to B in case A dies under 18.
2. An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a will, the estate shall go to B. A disputes the competency of the testator to make a will. The estate goes to B.
3. A sum of money is bequeathed to A for life, and, after his death, to B, but if B shall then be dead leaving a son, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be divested if he dies leaving a son in A’s lifetime.
4. A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivor living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one-half of the money, and the representative of B takes the other half.
5. A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally among her three children, or such of them as shall he living at her death. All the children of B die in B’s lifetime. The bequest over cannot take effect, but the interests of the children pass to their representatives.

According to Section 132 of the Act, an ulterior bequest of the kind contemplated by section 131 cannot take effect, unless the condition is strictly fulfilled.

Illustrations:

1. A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, C and D, the legacy shall go to E. E’ dies. Even if A marries without the consent of B and C, the gift to E does not take effect.
2. A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, the legacy shall go to C. A marries with the consent of B. He afterwards becomes a widower and marries again without the consent of B. The bequest to C does not take effect.
3. A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that, if A dies under 18 or marries without the consent of B, the legacy shall go to C. A marries under 18, without the consent of B. The bequest to C takes effect.

According to Section 133opf the act, if the ulterior bequest be not valid the original bequest is not affected by it.

Illustrations:

1. An estate is bequeathed to A for his life with condition super-added that, if he shall not on a given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the will.
2. An estate is bequeathed to A for her life and, if she do not desert her husband, to B. A is entitled to the estate during her life as if no condition had been inserted in the will.
3. An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the testator’s death, had not had a son. The bequest over is void under section 105, and A is entitled to the estate during his life.

According to Section 134 of the Act, 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.

Illustrations:

1. An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain wood, the bequest shall cease to have any effect. A cuts down the wood. He loses his life-interest in the estate.
2. An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of the executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him.
3. An estate is bequeathed to A, provided that, if he shall not go to England within three years after the testator’s death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the estate ceases.
4. An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interest in the estate. A becomes a nun. She loses her interest under the will.
5. A fund is bequeathed to A for life, and, after his death, to B, if B shall be then living, with a proviso that, if B shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. She thereby loses her contingent interest in the fund.

According to Section 135 of the Act, 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.

According to Section 136 of the Act, where a bequest is made with a condition super-added that, unless the legatee shall perform a certain act, the subject-matter of the bequest shall go to another person, or the bequest shall cease to have effect but no time is specified for the performance of the act; if the legatee takes any step which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act.

Illustrations:

1. A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy.
2. A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B’s daughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequest ceases to have effect.

According to Section 137 of the Act, where the will requires an act to be performed by the legatee within a specified time, either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon the non-fulfilment of which the subject-matter of the bequest is to go over to another person or the bequest is to cease to have effect, the act must be performed within the time specified, unless the performance of it be prevented by fraud, in which case such further time shall be allowed as shall be requisite to make up for the delay caused by such fraud.

Conclusion:

Conditions are of two kinds: conditions precedent and conditions subsequent. The former precedes the vesting of estate, 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 divested or to be altogether void. Where the condition is precedent, the estate is not vested in the grantee until performed, but where the condition is subsequent, the estate vested immediately in the grantee and remains in him till the condition be broken. What is a condition precedent and what is a condition subsequent must be ascertained from the wordings of the will as there is no particular format or language required.