CHANAKYA NATIONAL LAW UNIVERSITY

VOID CONDITION AND VOID CONDITION

SUBSEQUENT.
Submitted to Dr. Sita Rama Rao
Faculty Of Property law

Shubham Mishra
Roll- 1649
2016-2021
3rd Semester
0
 [1]

ACKNOWLEDGMENT
I am feeling highly elated to work on under the guidance of my Contracts law II faculty. I
am very grateful to him for the exemplary guidance. I would like to enlighten my readers
regarding this topic and I hope I have tried my best to bring more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my university
who made every relevant materials regarding to my topic available to me at the time of my
busy research work and gave me assistance.
 [2]

RESEARCH METHODOLOGY
The method used for research is the doctrinal method and involves research in the library and on
the internet.

Areas of limitations- data of the research study will have it’s limitations due to the lack of
sufficient financial resources and limited time allotted for the research

Sources of data- this will include sources like books on world history, websites, encyclopedias
etc.

AIMS AND OBJECTIVES

• To study the concept of Condition Precedent and condition subsequent

• To study the differences between condition precedent and condition subsequent.
• To study as to when the condition becomes void.
• To study different sections of Transfer of Property Act, 1882 which deals the
following concepts.

HYPOTHESIS

There is a huge difference between Condition Precedent and Condition Subsequent. Section 34 is
applicable on both of them. There are times when condition precedent may change into condition
subsequent. Partial fulfillment of condition is valid in the case of condition precedent.
 [3]

Table of Contents
INTRODUCTION .......................................................................................................................... 4
THE ACT .................................................................................................................................... 4
OBJECTIVES ............................................................................................................................. 4
SCOPE ........................................................................................................................................ 5
TERRITORIAL LIMITATION .................................................................................................. 5
ESSENTIALS OF VALID TRANSFER .................................................................................... 6
CONDITION PRECEDENT AND WHEN THE CONDITION BECOMES VOID. .................... 9
Void Condition Precedent ........................................................................................................... 9
Fulfilment of condition precedent- ........................................................................................... 11
Performance of condition precedent ......................................................................................... 11
Case Law-JAAFAR BIN IBRAHIM V. GAN KIN ................................................................. 12
CONDITION SUBSEQUENT AND WHEN THE CONDITION BECOMES VOID. ............... 13
1.Subsequent Transfers ............................................................................................................. 13
2.Conditional Limitation ........................................................................................................... 13
3.Fullfilment of Condition Subsequent ..................................................................................... 14
4. Prior disposition not affected by invalidity of ulterior disposition ....................................... 14
5. Condition that transfer shall cease to have effect in case specified uncertain event happens
or does not happen: ................................................................................................................... 14
6. Such Conditions must not be invalid .................................................................................... 14
7. Transfer conditional on performance of act, no time being specified for performance : ..... 14
Time for Performance Specified : ................................................................................................. 15
Transfer conditional on performance of act, time being specified. .......................................... 15
Time specified for performance of condition. .......................................................................... 15
Principle .................................................................................................................................... 16
DIFFERENCE BETWEEN CONDITION PRECEDENT AND CONDITION SUBSEQUENT 17
CONCLUSION ............................................................................................................................. 19
BIBLIOGRAPHY ......................................................................................................................... 20
 [4]

INTRODUCTION
In India, the personal laws governed the transfer of property assisted by orders of Courts under
Civil Procedure Code before the Transfer of Property Act, 1882 came into existence. Transfer of
movable goods was regulated to an extent by the Indian Contract Act, 1872. For transfer of
immovable property, the Anglo-Indian courts often turned to principles of Justice, Equity and
Good Conscience as it prevailed in England at the time. This rarely did any good due to the vast
differences in customs and society of the two countries. Of course the rapidly growing commerce
and infrastructure in the late nineteenth century lead to more conflicts even in business. Thus, an
immediate need was felt for a clear and pragmatic law regarding property and transfers suited to
India and its peculiar problems as well as to take care of the potential economic problems.

THE ACT
A Bill, finally presented to the Legislative Council, became a law on the 17th of February 1882
and came into force from 1st July of the same year. The Transfer of Property Act, 1882 mainly
deals with transfer of immovable property. It does not apply to transfers by the operation of law
such as transfer of immovable property necessitated by Order of Court for insolvency or forfeiture
among others. The 137 sections contained within have been divided into 8 chapters.

Interestingly, nowhere does the Act define ‘What is a transfer of property’. But it does define
‘transfer’ as a standalone in Section 5.

OBJECTIVES
The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act, 1882’) was intended
to define and amend the existing laws and not to introduce any new principle. It applies only to
voluntary transfers. The following may be enumerated as the objectives of the Act:

1. As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the law relating
to transfer of property by the acts of the parties.
2. The Act provides a clear, systematic and uniform law for the transfer of immovable
property.
3. The Act completes the Code of Contract since it is an enacted law for transfers that take
place in furtherance of a contract.
4. With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel to the
existing laws of testamentary and intestate transfers.
5. The Act is not exhaustive and provides scope to apply the principles of Justice, Equity and
Good Conscience if a particular case is not governed by any provision of law.
 [5]

SCOPE
Since the T P Act, 1882 is not a complete code of transfer of property; we can say its scope is
limited. The Act does not apply to all the transfers taking place in India.

1. Limitation on Transfer: The Act applies to transfer by the act of parties and not by
application of law. Thus, its operations are limited to transfers by act of parties only except
in a few cases saved by Section 2 of the Act.
2. Not Exhaustive: There are various kinds of property and various modes of transfer of
property. The Act does not incorporate rules for all modes of transfer in existence. The Act
does not even claim to be a complete code as apparent from omission of the term
‘consolidate’ from its Preamble.
3. Transfer of Immovable Property: The Act mainly deals with transfer of immovable
properties only.
4. Exemption of Muslim Law: In case of a conflict between the T P Act, 1882 and rules of
Muslim Law, the latter will prevail. Section 2 of the Act does not affect inconsistent rules
of Muslim Law. Thus, a settlement made in perpetuity for the benefit of descendants of the
settler is a valid wakf (charitable gift) wherein there is an ultimate gift in favor of a charity.
5. Exemption of Rights and Incidents: Certain incidents of a contract or the essential nature
of property are exemption from the operation of the Act by Section 2. The Act also saves
certain property rights. For example, the right to partition of immovable property is an
incident of property but this right is not affected by the provisions of the T P Act, 1882.1

TERRITORIAL LIMITATION
A territorial law is a Lex- loci or the law of a particular place and applies to all persons inhabiting
the territory irrespective of their personal status. It is different from personal law that generally
follows the person. The T P Act, 1882 is a territorial law and its operation extends to the whole of
India except for Punjab. It was not enforced throughout the country in one go. It was made
applicable to different parts of the country on different occasions. When the Act was first enforced
(1st July 1882), it extended to the whole of ‘British India’ except Bombay, Burma and Punjab.
The Act was extended to the territories of Bombay from 1st January 1893. In Punjab, the transfer
of immovable property by the act of parties is governed by the rules of Justice, Equity and Good
Conscience.

1
https://en.wikipedia.org/wiki/Transfer_of_Property_Act_1882
 [6]

ESSENTIALS OF VALID TRANSFER

There are 8 essentials of Transfer of Property , which are as follows -

A. Transfer must be between two or more living Persons (Section.5) - The Transfer must be
inter vivos. Therefore there cannot be a transfer to person not in existence at the time of transfer.
The living person including company or Association or body of individuals whether incorporated
or not .

B. The property must be transferable (Section. 6)- Property of any kind of may be transferred,
excepts as otherwise mentioned in S.6(a) to (I) cannot be transferred. Therefore those properties
described in the clauses (a) to(I) of Section.6 cannot be transferred. These are restrictions on the
Transfer of Property and any transfer in contravention of any of the clauses given in Section 6(a)
to (I) is null and void.2

C. The Transfer must not be –

opposed to the nature of interest affected thereby Section.6 (h)

for unlawful object and consideration as per provision of Section 23 of the Indian Contract Act
1872, which provides a consideration or object is unlawful if –

a) It is Forbidden by law, or

b) It is of such a nature that it defeats the provision of any law, or

c) is fraudulent, or

d) it involves or implies injury to the person or property of another or

e) the court regards it as immoral or opposed to public policy.

To a person legally disqualified to be a transferee. As per Section 136. of Transfer of Property Act,
a Judge, a legal practitioner are an office are connected with Court of Justice are disqualified from
purchasing in actionable claim. This prohibition is only with respect to actionable claim. It does
not apply to any other kind of property.3

2
Transfer Of Property Act, 1882

3
Sec. 23 of Indian Contract Act,1872
 [7]

D. Persons competent to transfer (Section.7) -

Every person is competent to contract and entitle to transferable property, or authorised to dispose
off Transferable property not his own, is competent to transfer such a property either wholly or in
part, and either absolutely or conditionally, in the circumstances to the extent and in the manner,
allowed and prescribed by any law for the time being in force.

Who is competent to transfer ? The transfer your must be -

1) Competent to contract –According to Section 11 of the Indian Contract Act, every person is
competent to contract who is the age of majority. under section.3 of the Indian majority Act

,1875 a person attains majority at the age of 18 years and if a Guardian is appointed, he would
attend majority at the age of 21.

2) Sound mind –Under section 12 of the Indian Contract Act, a person is of sound mind of the
purpose of making contract if he is capable of understandings it and of forming a rational
judgement as to its effect upon his interest. A contract made by a person of unsound mind is void

3) Disqualified person -An insolvent and alien enemy are disqualified from contracting. A transfer
by a defacto Guardian of minors property is invalid and will be hit by section 11 of Hindu minority
and guardianship Act, 1956.

4) Transferor must be entitled to transferable property - or authorized to dispose off Transferable

property not his own. One who is absolute owner of the property and property is free from
encumbrances is capable to transfer the same. An owner of the property May authorize his power
of attorney holder to transfer the property for him and on his behalf.

E. The Transfer must be made in the mode prescribed by the Act, under section 9 -

Section 9 of Transfer of property provides that for oral transfer, A Transfer of Property may be
made without writing in every case in which a writing is not expressly required by law.

Writing is necessary in case of following instruments -

1) sale of immovable property of the value of rupees hundred or upwards (S.54),

2) leases of immovable property from year to year for a term exceeding one year or reserving a
yearly rent (Section 107)

3) simple mortgage irrespective of amount secured (Section 59 ),

4) All other mortgages securing Rs100 or upwards (section 59)

5) Exchange ( section 108)

 [8]

6) Gift of immovable property (section 123)

7) Transfer of actionable claim (section 130)

F. If on transfer an interest in created in favour of an Unborn person - under section 13 ,

a) limited interest to be created in favour of living person,

b) Unborn person shall be born before expiry of Limited interest,

c) Once the Unborn person is born, he shall be given absolute interest on attending the age of
majority.

G. The Transfer must not be contrary to the rule against perpetuity (section 14) -S.14
provides that vesting cannot be postponed beyond the life of living person or minority of unborn
person. Such transfer if made is void.

H. Conditional transfer -

If transfer is conditional, the condition must not be illegal, impossible, immoral or opposed to
public policies.4

• 4
https://www.lawhandbook.org
 [9]

CONDITION PRECEDENT AND WHEN THE CONDITION

BECOMES VOID.

A condition precedent is that condition which precedes the transfer of property. Where the terms
of a transfer of property impose a condition to be fulfilled before a person can take an interest in
the property, the condition is condition precedent. The transfer is therefore ,dependent on the
fulfilment of a condition precedent.
According to the Section 25 and 26 defines the "Condition Precedent" in the Transfer of the
Property. The Condition Precedent must not be impossible of performance. It must be lawful and
not forbidden by law. The condition Precedent must obey the provisions of all laws. It should not
fraudulent and or cause injury to the person or property of another person and or should not be
immoral or opposed to public policy.

Section 25 in The Transfer of Property Act, 1882

An interest created on a transfer of property and dependent upon a condition fails if the fulfilment
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.
Illustrations:-
1. A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is
void.

2. A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the
transfer C was dead. The transfer is void.

3. A transfers Rs. 500 to B on condition that she shall murder C. The transfer is void.

4. A transfers Rs. 500 to his niece C, if she will desert her husband. The transfer is void.

Void Condition Precedent

Section 25 deals with a condition precedent. Under this section, a condition precedent is void if its
performance is either impossible or unlawful and, where a condition precedent is void the transfer
of property too is void; it fails. In the following cases the conditions are void and transfer fails (i.e.
it does not take effect) because the conditions cannot be fulfilled:

(a) impossible to perform- A condition which cannot be practically performed is called

impossible condition. Since such condition can never be performed, the transfer of property too
 [10]

can never take place. For example, no human being can walk hundred kilometres an hour.
Therefore, where A lets a farm to B on condition that he shall walk a hundred kilometres in an
hour, the lease is void. In Rajendra Lai v. Mrinalini Dassi, the condition in the bequest was that
the legatee excavated a tank when the testator himself did it in his life time. This was not
practically possible, therefore, the condition was void and bequest failed. 5

(b) unlawful- In the following cases the conditions arc unlawful and void; the transfer with such
conditions fails

(i) Forbidden by law- If a condition is forbidden by law, it is void. Transfer of property with such
condition cannot take place. A transfers his house to B on condition that B shall transfer his excise-
licence to C. Transfer of licence is forbidden by law and the condition cannot be performed.
Transfer of house fails.

(ii) Defeats the provision of law- Where the condition is such that if performed it would defeat
the provisions of any existing law, it is void. Transfer with such condition fails. Thus, where A
transfers his properties to B (a married Christian whose wife is alive) on condition that B shall
marry C, the transfer fails. Fulfilment of this condition would defeat the provision of Christian
matrimonial law under which during subsistence of a marriage no second marriage is allowed.

(iii) Fraudulent- A condition the fulfilment of which amounts to 'fraud' is unlawful. For instance,
A makes a gift of his house to B, who is agent of C, on condition that B shall give a false receipt
on behalf of his principal C. Performance of this condition would be fraudulent, therefore, the
condition is unlawful and the gift cannot take effect.

(iv) Involves any injury to person or property-A condition the performance of which is an
offence causing injury to person or property of another person is unlawful and a transfer with such
condition fails. A transfers property to B on condition that B kills C (or sets fire to C's house) is
void and does not take place.

(v) Opposed to public policy-Where the condition precedent is immoral or opposed to public
policy, the transfer with such condition cannot take place because the condition is void. A makes
a gift of Rs. 1,000/- to B when B deserts her husband. B can never be entitled to get Rs. 1,000/-.
Excepting one, void conditions precedent as contemplated in this section are the same as given in
Section 23 of the Indian Contract Act. Therefore, further illustrations of the nature of conditions
which are void on the ground of being unlawful may be seen there.

5
The Transfer Of Property by Dr. Avtar Singh
 [11]

Fulfilment of condition precedent-

Where the terms of a transfer of property impose a condition to be fulfilled before a person can
take an interest in the property, the condition shall be deemed to have been fulfilled if it has been
substantially complied with.
(a) A transfers Rs. 5,000/- to B on condition that he shall marry C and with the consent of C,
D and E. E dies. B marries with the consent of D, B is deemed to have fulfilled the
condition.

(b) A transfers Rs. 5,000/- to B on condition that he shall marry with the consent of C, D and
E. B marries without the consent of C, D and E, but obtains their consent after the marriage.
B has not fulfilled the condition.6

Performance of condition precedent

Where a transfer of property is dependent on the fulfilment of any condition precedent, the vesting
of interest cannot take place unless the condition is performed. If condition precedent is void under
Section 25 it cannot be performed and the transfer never takes effect. But where the condition is
valid and lawful, its performance is necessary for passing of the interest in favour of transferee.
Section 26 provides that where transfer is dependent on any (lawful) condition precedent its
substantial compliance is sufficient for the transfer. It is not necessary that the condition is fulfilled
strictly in accordance with its terms. This section incorporates the rule that a condition precedent
is to be interpreted liberally whereas a condition subsequent is to be strictly construed.

By substantial compliance is meant that condition has been carried out for the most part of its
terms. For example, A transfers Rs.5000 to B on condition that B shall marry with the consent of
C, D and E. E dies and his consent is not possible. B marries with the consent of C and D. The
condition has been carried out in substance though not strictly according to its terms. B gets Rs.
5,000/- if he marries with the consent of only C and D. Similarly, where A makes a gift of Rs.
5,000/- to B on condition that B marries with the consent of C, D and E. B marries with the consent
of C and D and takes the consent of E after marriage, this is substantial compliance of condition.
Where the condition made is of residence but the manner is not indicated, an occasional residence
was held as substantial compliance. However, where a property is transferred to A if he executes
a deed within a specified time and the document was executed within reasonable time but not
within the time specified, it, was held that condition as not performed.

6
Section 26 of Transfer Of Property Act,1882
 [12]

Conditional transfer to one person coupled with transfer to other on failure of prior disposition

Where, on a transfer of property, an interest therein is created in favour of one person, and by the
same transaction an ulterior disposition of the same interest is made in favour of another, if the
prior disposition under the, transfer shall fail, the ulterior disposition shall take effect upon the
failure of the prior disposition, although the failure may not have erred in the manner contemplated
by the transferor.

Case Law-JAAFAR BIN IBRAHIM V. GAN KIN

In this case the respondent, the registered owner of a piece of land, agreed to transfer a half-share
in the land to the appellant, if he could obtain approval of the conversion [SECTION 25] and
subdivision of the land from the State Authority of Negri Sembilan by December 31, 1977. Such
approval was not obtained before that date and the respondent relied on the provision in the
Agreement that "thereupon the agreement shall became null and void and of no effect". The
approval was only obtained on July 18, 1980. The appellant claimed specific performance of the
agreement and other ancillary reliefs. The learned trial judge dismissed the appellants' claim as he
held that the agreement was a conditional or contingent contract and as the deadline for
performance of the contingent condition had lapsed, the agreement was null and void and the
appellant had no claim against the respondent. The appellant appealed.

Held

(a) this was a case where time was not merely of the essence of the contract but fulfilment of
the promise by the appellant to obtain the approval on or before December 31, 1977, was
a condition precedent of the whole contract;
(b) the respondent promised to transfer her half-share in the land to the appellant if the
approval was obtained on or before December 31, 1977. The event had not happened by
the deadline and therefore under section 36(1) of the Contracts Act 1950, the contract
became void.7

7
Indiankanoon.org
 [13]

CONDITION SUBSEQUENT AND WHEN THE CONDITION

BECOMES VOID.
Conditions subsequent refers to conditions which occur after the formation of a contract. This
phrase refers to an occurrence which terminates the duty of a party to perform or do his/her part.
Although there is a binding contract, one party has an escape clause provided that the contract
terminates should certain conditions arise, ie if a company goes bankrupt. In a deed to real
property, a condition subsequent refers to an event which terminates a person’s interest in the
property (i.e. if a person gets divorced, they no longer have certain rights or interests in real
property).8

According to the Section 27 to 34 of the Transfer of the Property Act defines the "Condition
Subsequent". Condition Subsequent has different types of Transfers. They are :-

(a) Subsequent Transfers

(b) Conditional Limitation
(c) Fulfillment of Condition Subsequent
(d) Prior disposition not affected by invalidity of ulterior disposition
(e) Condition that transfer to effect in specified uncertain events
(f) Condition invalid and
(g) Conditional on Performance.

1.Subsequent Transfers

Section 27 of the Act, deals with second transfer on failure of prior valid transfer. The rule is
that if the prior interest fails, then the subsequent interests in the property takes effect, even
though the first transfer have failed in a manner not as though of by the transferor.

E.g.:- "A" transfers Rs.500 to "B" on condition that he shall execute a certain lease within three
months after "A"'s death, and if he neglects to do so, the to "C". "B" dies in "A"'s lifetime. The
transfer in favor of "C" takes effect.

2.Conditional Limitation
Section 28 of the Act, speaks about "conditional limitation". An interest in a property transferred
may be created in favor of any person with a condition that in case a specified uncertain event shall
not happen, such not happen, such interest shall pass to another person.

8
https://www. comtax.up.nic.in
 [14]

E.g. :- "A" transfers Rs.5000 to "B" with the condition that "B" must go to USA within three years
from the date of the transfer and in case he does not go within the said period, the property will go
to "C". Now in case, "B" does not go to USA, then "C" gets Rs.5000.

3.Fullfilment of Condition Subsequent

Section 29 of the Act, deals with the "Fulfillment of Condition Subsequent". An ulterior transfer
to the second party as contemplated in the preceding section cannot take effect unless the condition
by the first transferee is strictly fulfilled.

4. Prior disposition not affected by invalidity of ulterior disposition

Section 30 of the Act, If the ulterior (Subsequent) disposition is not valid, the prior disposition is
not affected by the ulterior (subsequent) invalid disposition.

E.g.:-"X" transfers a farm to "Y" for her life, and if she does not desert her husband to "Z". "Y" is
entitled to the farm during her life as if no condition had been inserted.

5. Condition that transfer shall cease to have effect in case specified uncertain
event happens or does not happen:
Section 31 of the Act, On a transfer of property an interest therein may be created with the
condition that it shall cease to exist in case a specified uncertain event shall happen, or in case a
specified uncertain event shall not happen.

6. Such Conditions must not be invalid

Section 32 of the Act, If a condition that an interest shall cease to exist should be valid, then it is
necessary that the event to specify must be lawful. E.g.:- "A" transfers to "B" an interest in a
property with the condition that "B" shall goes to Pakistan within 3 years. "B" cannot go to Pakistan
within 3 years because it is an alien nation for India. Now the condition is invalid and the interest
passes on to "B".

7. Transfer conditional on performance of act, no time being specified for

performance :
Section 33 of the Act, Where on a transfer of property, an interest therein is created subject to a
condition that the person taking it shall perform a certain act, but no time is specified for the
performance of the act, then the condition is broken when he renders impossible, permanently or
for an indefinite period, the performance of the act.

Section 33 deals with a condition where no fixed time is mentioned for the performance of a
condition subsequent. The person who has to perform the condition and who is to take interest
 [15]

created, does some act by which the condition becomes impossible to perform or its performance
is permanently postponed, the condition subsequent is broken.9

Time for Performance Specified :

Section 34 of the Act, deals with the "Time for Performance Specified". This section lays down
that if the performance of a condition whether subsequent or precedent is prevented by a person
interested in its non-fulfillment, the delay is excused and the condition is discharged. This section
is based on the principle that no man is allowed to take advantage of his wrong.

E.g.:- "A" transfers property to "B" with a condition that if he does not go to England within a
year, it will pass on to "C". If "C", by playing a fraud, prevents "B" from performing the condition,
the delay in such performance is excused.

Transfer conditional on performance of act, time being specified.

Where an act is to be performed by a person either as a condition to be fulfilled before an interest
created on a transfer of property is enjoyed by him or a condition on the non-fulfilment of which
the interest is to pass from him to another person, and a time is specified for the performance of
the act, if such performance within the specified time is prevented by the fraud of a person who
would be directly benefitted by non-fulfilment of the condition, such further time shall as against
him be allowed for performing the act as shall be requisite to make up for the delay caused by such
fraud. But if no time is specified for the performance of the act,then. If its performance is by the
fraud of a person interested in the non-fulfilment of the condition rendered impossible or
indefinitely postponed, the condition shall as against him be deemed to have been fulfilled. 10

Time specified for performance of condition.

This section is applicable to condition precedent as well as condition subsequent. Where a time
has been specified for the performance of a condition, the condition must be fulfilled within that
time. Section 34 provides that if a condition is to be performed within a given time and the
performance of the condition is prevented by a person interested in its non-performance by fraud,
the time for its performance becomes extended. In other words, where time is relevant for
fulfilment of a condition but some deiay is caused in its fulfilment due to fraudulent act of a person
interested in causing delay, then the delay so caused is exempted and the condition is deemed to
have been fulfilled within time. This provision prevents a person to take advantage of his own
fraud. Where no time is specified for the performance of the condition but a person interested in

9
https://www.law.cornell.edu/

10
The Transfer Of Property Act by Dr. R.K. Sinha
 [16]

its non-performance makes the performance impossible by his fraudulent act then too the condition
is deemed to have been fulfilled.

For example, a property is transferred to A with a condition that if A does not live at a holy place
for three months from the date of transfer he shall be divested of his interest in the property. Some
of A's relatives by fraudulent means confined A at a particular place so that A may not live at the
said holy place. A, therefore, could not fulfil the condition. It was held that since non-performance
of condition by A was caused by A's relatives in anticipation that in A's absence property shall go
to them under Section 34, the condition is deemed to have been discharged.

This section lays down where if the performance of the condition, whether subsequent or
precedent, is prevented by a person interested in its non fulfillment, the delay is executed and the
condition is discharged.

Principle
1. No party can take advantage of his own fraud.
2. If performance of a condition whether subsequent or precedent ,is prevented by a person
interested in its non fulfillment ,the delay is excused, and condition is discharged.
3. This section is based on the two principles:
1. Mullus commodum capere protested injuria sua propria – no one can take advantage of
his own wrong.
2. Raus et nemini patrocinari debent –fraud and deceit ought not to benefit any person.
4. Section deals with two class of cases:
1. Where time is specified for performance and condition is prevented by fraud of person
directly benefitted by non fulfillment of the condition.
2. where no time is specified and fulfillment of condition is rendered impossible or is
indefinitely postponed by fraud of person interested in non fulfillment of condition.

Illustration

A testator directed that if any of the female members of his family lived for more than three months
at any place other than holy place they would forfeit their interest under his will. The forfeiture
was not incurred when they were forcibly removed by their relation.
 [17]

DIFFERENCE BETWEEN CONDITION PRECEDENT AND

CONDITION SUBSEQUENT

No. Condition Precedent Condition Subsequent

1) A condition precedent is one A condition subsequent is one

the fulfillment of which of the fulfillment of which
completes an inchoate title. extinguishes a title already
completed.

2) A condition precedent always A condition subsequent always

comes before the creation of follows the vesting of an
an interest. interest which is already
complete.

3) In the case of Condition In the case of condition

precedent, the vesting of the subsequent, vesting is complete
estate is postponed till the and not postponed.
performance of the condition
precedent.

4) In the case of condition In the case of condition

precedent, an interest once subsequent, interest, even
vested can never be divested though vested, is liable to be
by reason of non-fulfillment divested by reason of the non-
of the condition. fulfillment of the condition.

5) In the case of condition In the case of condition

precedent, an estate is not in subsequent, the estate
the grantee until the condition immediately vests in the
precedent is performed. grantee and remains in him till
the condition is broken.

6) In the case of condition
precedent, transfer will be
void if the condition
precedent is impossible to
performance, or immoral or
opposed to public policy.
7) In the case of condition
precedent, the condition
precedent must be valid in
law.
8) In the case of condition
precedent, the doctrine of
cypres applies and the
condition precedent is
fulfilled if it is subsequently
complied with.
11
11
https://www.newagepublishers.com
[18]
In the case of condition
subsequent , the transfer
becomes absolute and the
condition will be ignored if that
condition is impossible of
performance or immoral or
against to public policy.
In the case of condition
subsequent, it need not be so
and the invalidity of the
conditions can be ignored.
The doctrine of cypress does
not apply.
 [19]

CONCLUSION
A condition precedent is that condition which precedes the transfer of property. Where the terms
of a transfer of property impose a condition to be fulfilled before a person can take an interest in
the property, the condition is condition precedent. The transfer is therefore ,dependent on the
fulfilment of a condition precedent.
According to the Section 25 and 26 defines the "Condition Precedent" in the Transfer of the
Property. The Condition Precedent must not be impossible of performance. It must be lawful and
not forbidden by law. The condition Precedent must obey the provisions of all laws. It should not
fraudulent and or cause injury to the person or property of another person and or should not be
immoral or opposed to public policy.
Conditions subsequent refers to conditions which occur after the formation of a contract. This
phrase refers to an occurrence which terminates the duty of a party to perform or do his/her part.
Although there is a binding contract, one party has an escape clause provided that the contract
terminates should certain conditions arise, ie if a company goes bankrupt. In a deed to real
property, a condition subsequent refers to an event which terminates a person’s interest in the
property.
In case of condition subsequent , the transfer is valid if the condition is
• impossible of performance
• immoral
• opposed to the public policy , (only the condition will be ignored.)

In condition precedent the condition must be valid in the eye of law .

In condition subsequent the condition’s invalidity will be ignored .

Where an act is to be performed by a person either as a condition to be fulfilled before an interest

created on a transfer of property is enjoyed by him or a condition on the non-fulfilment of which
the interest is to pass from him to another person, and a time is specified for the performance of
the act, if such performance within the specified time is prevented by the fraud of a person who
would be directly benefitted by non-fulfilment of the condition, such further time shall as against
him be allowed for performing the act as shall be requisite to make up for the delay caused by such
fraud. But if no time is specified for the performance of the act,then. If its performance is by the
fraud of a person interested in the non-fulfilment of the condition rendered impossible or
indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.
 [20]

BIBLIOGRAPHY

BOOKS

• The Transfer Of Property Act by Dr. R.K. Sinha, Central Law Agency
• Transfer of Property Act by Dr. Avtar Singh, Universal Law Publishing

STATUES

• Transfer of Property Act,1882

• Indian Majority Act,1875
• Hindu Minority Gaurdianship Act,1956

WEBSITES

• https://indiankanoon.org/
• https://www.netlawman.co.in
• https://www.lawcommissionofindia.nic.in
• https://www. comtax.up.nic.in
• https://www.law.cornell.edu/
• https://www.newagepublishers.com
• https://www.lawhandbook.org