Lecture Note 6

5. Rules Regarding Conditional Transfer

5.1 Conditional transfer (s. 25)

5.2 Rules regarding the performance of condition precedent and Doctrine of cy-pres
(s. 26)
5.3 Conditional transfer to one person coupled with transfer to another on failure of
prior disposition and Doctrine of Acceleration (s. 27)
5.4 Ulterior Transfers (s. 28)
5.5 Rules regarding the performance of condition subsequent (s. 29)
5.6 Invalidity of subsequent interest (s.30)
5.7 Condition subsequent (31)
5.8Time for performance of the Condition subsequent (s.33 & 34)

5.1 Conditional transfer (s. 25)

This section deals with transfers of property that are dependent on a condition.

If the condition is impossible, forbidden by law, fraudulent, injurious to person/property, immoral,

or opposed to public policy, then the transfer fails.

In short, a transfer cannot be made subject to an unlawful or impossible condition.

Illustrations:

1. Impossible condition:

A lets a farm to B on condition that he shall walk 100 miles in an hour. → Void.

2. Condition already impossible:

A gives Tk. 500 to B on condition that he shall marry A’s daughter C. But C is already dead. → Void.

3. Illegal condition:

A transfers Tk. 500 to B on condition that she shall murder C. → Void.

4. Immoral condition:

A transfers Tk. 500 to his niece C if she will desert her husband. → Void

Example:

Transfer by A → Property to B

Condition attached → Must do X

 Check the validity of the condition:

┌───────────────────────────────┐

│ Is it possible?

│ Is it lawful?

│ Is it moral?

│ Is it not injurious/fraudulent?

└───────────────────────────────┘

Result:

If YES → Transfer valid

If NO → Transfer void

5.2 Rules regarding the performance of condition precedent and Doctrine of cy-pres (s. 26)

A condition precedent means a condition that must be fulfilled before a person can take an interest in
property.

•The law says: if the condition has been substantially complied with, it will be treated as fulfilled.

• This prevents transfers from failing due to minor or technical defects in performance.

Doctrine of Cy-pres :

Cy-pres is a principle meaning “as near as possible.” In property law, it means that if a condition cannot be
fulfilled literally, but has been fulfilled substantially or in spirit, the transfer will still be valid. The doctrine
avoids injustice by recognizing practical compliance rather than insisting on strict literal performance.

Illustrations:

1. Substantial compliance → Valid

Transfers Tk. 5,000 to B on condition that he shall marry with the consent of C, D, and E. E dies. B marries
with the consent of C and D.

→ Condition is deemed fulfilled (since substantial compliance occurred).

2. Non-compliance → Invalid
A transfers Tk. 5,000 to B on condition that he shall marry with the consent of C, D, and E. B marries
without their consent, but obtains consent after marriage.

→ Condition not fulfilled (consent must exist at the time of marriage)

Example:

Transfer by A → Property to B

Condition precedent: Must marry with the consent of C, D, E

Case 1: E dies, consent of C & D given → Substantial compliance → Valid

Case 2: Consent obtained after marriage → Not compliance → Invalid

Case law: Edwards v. Hammond (England, 1683)

5.3 Conditional transfer to one person coupled with transfer to another on failure of prior
disposition and Doctrine of Acceleration (s. 27)

➢ General Rule:

When an interest in property is transferred to one person, and simultaneously, another disposition of the
same interest is made to a different person:

i) If the initial disposition fails, the subsequent disposition takes effect.

ii) The failure of the prior disposition does not have to occur in the manner anticipated by the transferor.

➢ Exception:

✓ If the parties intend that the subsequent disposition will only take effect if the prior disposition fails in a
specific manner:

✓ The subsequent disposition will not take effect unless the failure of the prior disposition occurs in the
specified manner.

➢ Illustrations
a) A transfers Tk. 500 to B on condition that he shall execute a certain lease within three months after A's
death, and, if he should neglect to do so, to C.B dies in A's lifetime. The disposition in favour of C takes
effect.

5.4 Ulterior Transfers (s. 28)

Nature of Provision:

✓ This section deals with a transfer of property where an interest is created for a person, contingent upon
the occurrence or non-occurrence of a specified uncertain event.

➢ Conditions for Ulterior Transfer:

✓ The interest may be designed to pass to another person if a specified uncertain event happens.

✓ Alternatively, the interest may be directed to pass to another person if a specified uncertain event does
not happen.

➢ Applicability of Rules:

✓ The dispositions mentioned in this section are subject to the rules contained in sections 10, 12, 21, 22,
23, 24, 25, and 27.

Example 1: Ulterior transfer on happening of an uncertain event

Facts:

• X transfers his house to A

• Condition: If A dies before attaining 30 years of age, then the house shall pass to B

Explanation:

• A gets the property immediately

• A’s interest is conditional

• The event (A dying before 30) is uncertain

• If the event happens → property goes to B

• If the event does not happen → A keeps the property absolutely

Example 2: Ulterior transfer on non-happening of an uncertain event

Facts:
 • X transfers land to A
• Condition: If A does not marry by the age of 35, then the land shall pass to B

Explanation:

• A takes the property at once

• The condition is based on a future uncertain event (marriage)
• If A fails to marry by 35 → property shifts to B
• If A marries before 35 → B gets nothing

5.5 Rules regarding the performance of condition subsequent (s. 29)

What it means:
An ulterior disposition (a gift/transfer that takes effect later if a stated event occurs) only takes effect if
the condition is strictly fulfilled exactly as the transfer states.

Example:

A gives Tk.500 to B when B becomes a major or gets married, but says: “If B dies a minor or marries
without C’s consent, the Tk.500 goes to D.” If B marries at 17 without C’s consent, then the gift passes to
D exactly as the proviso says.

The later beneficiary (D) receives the property only if the condition occurs exactly as written.

5.6 Invalidity of subsequent interest (s.30)

If the ulterior disposition (the “if this happens, go to X” part) is invalid (illegal, impossible, void), that does
not undo the prior disposition. The person who already has the interest keeps it as if the invalid proviso
were not there.

Example:
A gives a farm to B for life, and adds “and if B does not desert her husband, then after her life goes to C.”
If that ulterior part (the clause about desertion) is found invalid or unenforceable, B still keeps the life-
interest — the life-interest is unaffected.

5.7 Condition subsequent (31)

A transfer can be made so that an interest exists now but will end if a specified uncertain event
happens (or does not happen). That is, the interest is created but is determinable on a future event.

Examples:

• A transfers a farm to B for life, with the proviso: “If B cuts down the wood, the transfer
shall cease.” If B cuts the wood, his life-interest ends.
 • A transfers to B, provided B goes to England within three years; if B fails to go, his interest
ceases.

Note the difference:

• Condition precedent = interest comes into being only after something happens.
• Condition subsequent = interest exists now but may end if something happens (or
doesn’t happen).

5.8Time for performance of the Condition subsequent (s.33 & 34)

s.33 No time fixed for the act

Rule: If a transfer requires a person to perform an act as a condition, but no time is fixed, and the
person renders performance impossible (permanently or indefinitely), then the condition is broken.

Example: A gives land to B on condition that B plants and maintains an orchard (no time fixed).
If B destroys the soil or sells off the land so the orchard can’t be planted ever, then B has broken
the condition.

s.34 Time fixed for the act (and fraud)

Rule (two parts):

1. If a time is fixed for performing the act, and someone who would benefit by non-
performance (i.e., a person who gains if the condition fails) prevents performance by
fraud, then the law will allow extra time (against that fraudster) so the act can still be
done.
2. If no time is fixed, but performance is made impossible or indefinitely postponed by the
fraud of someone who benefits from non-fulfilment, then the condition is treated as
fulfilled against that fraudster.

Example 1 (time fixed):

A gives a plot to B if B builds a house within 2 years; if C (who'd get the plot if B fails)
maliciously destroys B’s construction materials, the court will allow B additional time to make
up for the delay caused by C’s fraud

Example 2 (no time fixed + fraud

A gives a legacy to B if B ever gets a diploma (no time fixed). If C, who benefits if B never gets
the diploma, forges B’s records so B cannot enroll, the court may treat the condition as fulfilled
against C (so C can’t profit by his fraud).