25.

An interest created on a transfer of property and

Conditional transfer, dependent upon a Condition fails if the ful-

filment 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, or

involves or implies injury to the person or property of another,

or the Court regards it as immoral or opposed to public

policy.

lUustrattons.

(a) A lets a farm to B on condition that he shall walk a hundred

miles in an hour. The lease is void.

(b) A gives Rs. 500 to B on condition that he shall marry As

daughter C. At the date of the transfer C was dead. Tlie transfer is

void.

(c) A transfers Rs. 500 to B on condition that she shall murder C.

The transfer is void.

(d) A transfers Rs. 500 to his niece C if she will desert her husband.

Tlie ti'ansfer is void.

Analogous Law ; — (Compare secs. 126 and 127, Indian Succession

Act, 1925, and secs. 23 and 36, Indian Contract Act.

“Dependent vpon a condition” : — ^The condition referred to in this

section is a condition precedent as distinguished from a condition

subsequent.

133. Condition precedent and condition subsequent : — Distinc~

fions : —

(1) A condition precedent is one which must happen before the

estate can commence. A condition subsequent is one by the happening

of which an existing estate will be defeated.

(2) Wliere the condition is precedent, tlie estate is not in the

grantee until tlie condition is performed ; but wliere the condition is

subsequent, the estate immediately vests in the grantee and remains

in him till the condition is broken — Wynne v. Wynne, 2 M & G. 8 (at

p. 14). A clause of forfeiture in case of the devisee not making the

mansion house “liis usual and common place of abode and residence”

is not void for uncertainty — Wynne Fletcher, 24 Beav. 430.

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

sible to be performed or being immoral or opposed to public policj',

the estate ivill not arise and the transfer will be void. See this section.

But in the case of an impossible or immoral condition subsequent, the

estate will be or becomes absolute and the condition will be ignored.

Tlius, if a gift was made with a condition superadded that the donee

should marry a certain person on or before she attained the age of

21, and the person named died before she attained that age, it was
held that the fulfilment of die condition subsequent having become

impossible, the estate became absolute — Thomas i'. Hotcell, 1 Salk,

[Sec. 25

164 TRANSFER OF PROPERTY

170- Tannan on Wills, Vol. H, p. 12. A gift to which an immoml

condition is subsequently attached remains a good ^ft, ^ugh the

condition is void— Ram Sarup v. Bela 6 All. 313 (P.C.). There is a

clear distinction between an immoral considera^on fot a gift, and an

immoral condition which is subsequently attached to a gift. If the

consideration itself is immoral the transfer falls to the ground. On

the other hand if .a subsequent condition is tried to be attached to a

netfectlv vaUd sift, then the condition, if immoral, is void but the

gS Ste unafferted-C/iamM v. ErnnchmOra. A.I.R. 1925 AB. 437.

(4) A condition subsequent must be strictly fulfilled (sec, 29), but a

condition precedent is fulfilled if it is substantially complied with (sec.

26). See notes under section 26.

134. Fulfilment impossible The fulfilment of a condition may

become impossible either at tlie time the interest is created or subse-

quently, but in either case tlie transfer wll fail. See Jarman on Wills,

Vol. 11, p. 12. When the fulfilment of a condition becomes impossible

by act of God, the condition becomes void, and the transfer fails—

Ibid. p. 13. See In re Greenwood, [190.3] 1 Ch, 749. But if tlie per-

formance of the condition becomes impossible by the fraud of a per-

son interested in the non-fulfilment of the condition, the condition

shall, as against him, be deemed to have been fulfilled ; see section

34 infra., ‘Mere difficulty in performance is not to be counted as an

impossibility”— Shephard & Brown, 7 Edn., p. 95.

Wliere there was a bequest made conditional on the re-excavation

of a certain tank by the legatee and the condition became impossible of

performance by reason of die testator himself re-excavating the tank,

the bequest failed. Wliere the performance of the condition appears

to be the motive of the bequest, the impracticability of the performance

will be a liar to the claim of the legatee ; the bequest in such cases

does not take effect discharged of the condition — Rajendra v. Mrinalini,

48 Cal. 1100.