A testator may write whatever he pleases, but Part VI of the Indian Succession Act, 1925 sorts his words into those the law will enforce and those it strikes down. Three clusters of provisions do this sorting. Sections 87 to 118 tell us when a bequest is void — for uncertainty, for naming a person not in existence, for offending the rule against perpetuity, or for accumulating income too long. Sections 122 to 123 govern onerous bequests, where a gift carries a burden the legatee must swallow whole or refuse entirely. Sections 120 to 137 regulate conditional bequests, drawing the great divide between conditions precedent and conditions subsequent. This article walks through all three, anchored in the bare sections, their statutory illustrations, and the Supreme Court's construction in Purnendu Nath Tagore v. Administrator-General of West Bengal. For the foundations, keep open our notes on the Indian Succession Act hub and on definitions and key concepts.
Where these rules sit in the scheme of the Act
Part VI of the Indian Succession Act, 1925 ("the Act") deals with testamentary succession — the law of wills. Within it, the construction and operation of bequests are spread across several chapters. Chapter VI (sections 87 to 111) concerns the construction of wills generally and contains the cardinal rule in section 87 that the testator's intention is to be effectuated as far as the law permits. Chapter VII (sections 112 to 117) deals with void bequests strictly so called — bequests to persons not in existence, those offending the rule against perpetuity, and those directing accumulation beyond the permitted period. Chapter IX (sections 122 to 123) handles onerous bequests. Chapter X (sections 124 to 125) covers contingent bequests, and Chapter XI (sections 126 to 137) covers conditional bequests. These chapters apply to the wills of every person other than where expressly excluded; the general scope is traced in our note on the introduction, scheme and application of the Act.
The organising idea is simple. A bequest fails altogether (is void) when its very subject or object cannot be ascertained or is forbidden. A bequest survives but carries a price (is onerous) when beneficial and burdensome property are tied together. And a bequest survives subject to a qualifying event (is conditional) when the testator hangs the gift on a condition to be performed before or after it vests. The consequences of failure differ sharply between these categories, which is why precise classification matters in every exam problem.
Void for uncertainty: section 89
The first and most basic ground of invalidity is uncertainty. Section 89 declares that a will or bequest not expressive of any definite intention is void for uncertainty. The section is illustrated by classic examples: if a testator says "I bequeath goods to A", or "I leave to A all the goods mentioned in the Schedule" and no schedule is in fact found, or bequeaths "money", "wheat" or "oil" without saying how much, the disposition fails because the court cannot tell what or how much was meant. The vice is not in the object but in the testator's failure to express a definite intention as to the subject of the gift.
Uncertainty under section 89 is a last resort, not a first instinct. Section 87 commands that effect be given to the testator's intention so far as it can be ascertained and is lawful, and the courts will strain to read a will so as to avoid intestacy. A bequest is struck down for uncertainty only where the language, read with admissible surrounding circumstances, yields no ascertainable meaning at all. Where the description is merely imperfect but the object can still be identified, the maxim falsa demonstratio non nocet — a false description does not vitiate — saves the gift. Section 89 bites only when the imperfection goes to the substance of the intention itself.
Bequest to a person not in existence: sections 112 and 113
A bequest to a described person who is not in existence at the testator's death is void. Section 112 provides that where property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but possession of it is not to be given until a time later than the testator's death, the bequest goes to a person answering the description who is alive at the testator's death, or who comes into existence between that death and the later time. The section is illustrated by the case of a gift to "the eldest son of B": if at the testator's death B has no son, the bequest is void; but if possession is deferred and a son comes into existence before that deferred time, he takes.
Section 113 is the cornerstone provision on bequests to persons not yet born, and it mirrors the rule against transfers to unborn persons found in the Transfer of Property Act, 1882. Where a bequest is made to a person not in existence at the testator's death, subject to a prior bequest contained in the will, the later bequest is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. In other words, the unborn person, if benefited at all, must take the entire residue of the testator's interest; a will cannot create a limited or life interest in favour of one who is not yet born. The statutory illustration is precise: a fund bequeathed to A for life, and after his death to his eldest son for life, and after that son's death to that son's eldest son — the gift to the grandson is void, because it is a limited (life) interest given to a person not in existence and subject to a prior bequest. The principle dovetails with the rules in our note on consanguinity and lineal descent, which fix who answers a description of kindred.
The rule against perpetuity: section 114
Section 114 enacts the rule against perpetuity for testamentary dispositions. No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. The permissible perpetuity period is therefore measured by lives in being at the testator's death plus the minority of a person in existence at the close of those lives.
The key word is may. The test is one of possibilities, not of what actually happens. If, on any possible course of events, vesting could be postponed beyond the permitted period, the bequest is void from the outset, even if in the event vesting occurs within the period. The statutory illustration captures this: a fund bequeathed to A for life, and after his death to B for life, and after B's death to such of B's sons as shall first attain the age of 25 — the bequest to the son fails, because a son of B might attain 25 more than 18 years (the limit of minority) after the deaths of A and B. Section 114 must be read with sections 115 and 116, which deal with the consequences when a bequest is rendered void under this rule, including the failure of subsequent and dependent bequests.
What happens to a void bequest: sections 115 to 118
When a bequest fails, the Act traces the consequences carefully. Section 115 provides that where, by reason of the rule in section 113 or section 114, a bequest in favour of a class of persons fails as to some of them, it does not on that account fail as to the rest. The valid members of the class take. Section 116 deals with a bequest made to take effect on the failure of a prior bequest which is itself void under sections 113 or 114: such a subsequent bequest is also void, because it was intended to operate only as a substitute for a disposition the law will not recognise. The lapse of the prior gift does not let in the substitute.
Section 117 carries the rule against perpetuity into the field of accumulation. It limits the direction to accumulate income to a period of either the life of the testator, or eighteen years from the testator's death; any direction to accumulate beyond the longer of these is, as to the excess, void, and the income is dealt with as if no accumulation had been directed. Section 118, historically, restricted bequests for religious or charitable uses by persons having a nephew or niece or nearer relative, requiring execution at least twelve months before death and deposit of the will; but this provision applied only to a limited class of testators and its discriminatory operation has been read down by the courts. For the modern student, the operative void-bequest rules are sections 89, 112, 113, 114 and 117.
Onerous bequests: the all-or-nothing rule of section 122
An onerous bequest is one that carries a burden. Section 122 lays down that where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully. The legatee cannot pick the sweet and reject the bitter where both are tied up in a single bequest. The illustration to the section is the standard examination favourite: A, owning shares in (X), a prosperous joint-stock company, and shares in (Y), a company in difficulties in respect of which heavy calls are expected, bequeaths to B all his shares in joint-stock companies. If B refuses to accept the shares in (Y), he forfeits the shares in (X) as well, because the bequest is single and indivisible and must be taken as a whole or not at all.
The rationale is that the testator's intention was to pass the entire bundle, burden and benefit together, as one disposition. The legatee has no right of election within a single onerous bequest — he elects only between accepting the whole and disclaiming the whole. This is conceptually distinct from the doctrine of election proper (sections 180 to 190 of the Act), which arises when a testator gives away property that is not his and offers the true owner a benefit under the same will. Section 122 is narrower: it concerns one gift internally composed of advantage and disadvantage.
Two separate bequests: section 123
Section 122 yields to a contrary intention, and section 123 supplies the converse rule. Where a will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one and refuse the other, although the one that he accepts may be beneficial and the other onerous. The illustration makes the point: A, by his will, gives B a coal-mine which is burdensome and also gives him, by a separate and independent bequest, a sum of money. B may take the money and decline the mine.
The whole question, therefore, is one of construction: is there a single composite bequest (section 122) or are there two distinct and severable gifts (section 123)? The court asks whether the testator intended the items to pass as one entire disposition or as discrete dispositions each standing on its own footing. Where the items are conceptually and dispositively separate — given by separate clauses, capable of independent enjoyment — section 123 applies and the legatee may cherry-pick. Where they are welded into one gift, section 122 forces an all-or-nothing choice. This construction exercise reflects the Act's governing principle that the testator's intention controls, as developed in our note on definitions and key concepts.
Contingent bequests: sections 124 and 125
Before turning to conditions proper, the Act addresses contingent bequests in Chapter X. Section 124 provides that 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. The contingency must resolve itself by the time of distribution, or the gift fails. The illustrations are instructive: a legacy to A, and in case of his death to B — if A survives the testator, the gift over to B never takes effect, because "death" is read as death in the testator's lifetime. Similarly, a legacy to A, and in case of his death without children to B — if A survives the testator, or dies in the testator's lifetime leaving a child, B takes nothing.
Section 125 governs a bequest to such of certain persons as shall be surviving at some period not specified, and provides that, in the absence of a contrary intention, the period is the testator's death. A contingent interest is thus distinguished from a vested one: under sections 119 and 120, a legacy is vested when there is a present right to future enjoyment, and contingent when the right itself depends on an uncertain event. The distinction is decisive for whether the interest passes to the legatee's representatives if he dies before distribution — a vested interest does, a contingent interest does not.
Conditional bequests: the great divide
Chapter XI (sections 126 to 137) governs conditional bequests. A conditional bequest is one annexed to a condition — an external event or act on which the gift is made to depend. The pivotal distinction, which every problem in this area turns upon, is between a condition precedent and a condition subsequent. A condition precedent is one that must be fulfilled before the legacy can vest in the legatee; the gift does not take effect until the condition is satisfied. A condition subsequent is one annexed to an interest that has already vested, the non-fulfilment of which divests the interest and may pass it over to another.
The classification produces strikingly different consequences when the condition is void or impossible, and it governs the standard of performance demanded. As we will see, an impossible or illegal condition precedent generally destroys the gift, whereas an impossible or illegal condition subsequent is simply disregarded and the prior gift stands absolute. The Supreme Court in Purnendu Nath Tagore v. Administrator-General of West Bengal, AIR 1953 SC 290, emphasised that whether a particular clause creates a condition, and whether it is precedent or subsequent, is purely a question of the construction of the will read as a whole — the court looks to substance, not to the mere order in which words appear.
Impossible conditions: section 126
Section 126 deals with impossible conditions. A bequest upon an impossible condition is void. The impossibility may exist at the date of the will or may arise afterwards, and it may be impossibility in the nature of things or impossibility created by law. The two statutory illustrations are textbook staples: first, an estate bequeathed to A on condition that he shall walk a hundred miles in an hour — the bequest is void, the condition being physically impossible; second, A bequeaths five hundred rupees to B on condition that he shall marry A's daughter, but A's daughter was dead at the date of the will — the bequest is void, performance being impossible from the outset.
The structure of section 126 treats the condition as a condition precedent. Because the gift is made to depend on a condition that can never be performed, the gift itself can never take effect, and so the whole bequest fails. This must be read alongside section 127, which deals with conditions that are not impossible but unlawful, and contrasted with the treatment of conditions subsequent under section 131 onwards, where impossibility or illegality of the divesting condition leaves the original gift intact.
Illegal and immoral conditions: section 127
Section 127 strikes down conditions that offend law or morality. A bequest upon a condition, the fulfilment of which would be contrary to law or to morality, is void. The illustrations leave no doubt about the breadth of the prohibition: A bequeaths 500 rupees to B on condition that he shall murder C — the bequest is void; and A bequeaths 5,000 rupees to B on condition that she shall continue in adultery with C, or that she shall desert her husband — the bequest is void. A condition that requires the commission of a crime, or that promotes immorality, or that is opposed to public policy, falls within the section.
The doctrine traces to the common-law principle, classically expounded in Egerton v. Earl Brownlow (1853) 4 HLC 1, that the law will not lend its aid to enforce a disposition conditioned on conduct injurious to the public good. Indian courts apply section 127 in the same spirit, but with the discipline that public policy is an unruly horse to be invoked only in clear cases. As with section 126, the section is framed for conditions precedent: where the gift is to take effect only on performance of an unlawful condition, the gift fails with the condition. The position differs where the offending condition is subsequent, a distinction examined below.
Condition precedent and substantial compliance: section 128
For valid conditions precedent, section 128 relaxes the standard of performance. Where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition is to be considered as having been fulfilled if it has been substantially complied with. Strict, literal performance is not demanded; substantial compliance suffices. The illustration is memorable: a legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with the written consent of B; C is present at the marriage; D sends a present before the marriage; E, though personally informed of the intended marriage, neither consents nor dissents. A has fulfilled the condition, the requirement of consent having been substantially satisfied.
Section 129 supplements this where the condition precedent requires an act and provides for the consequence of its non-performance. The animating idea of section 128 is that conditions precedent should not be used as traps; if the testator's substantial purpose has been met, the gift vests. This generous standard for conditions precedent stands in deliberate contrast to the rigour the Act applies to conditions subsequent under section 132, discussed next.
Conditions subsequent and strict fulfilment: sections 131 and 132
Chapter XI's second half governs conditions subsequent and bequests over. Section 131 permits a bequest to a person with the condition super-added that, in case a specified uncertain event shall or shall not happen, the thing bequeathed shall go over to another person. The first taker's interest is vested but defeasible — liable to be divested on the happening or non-happening of the event. The illustration is the classic gift over: a sum of money to A, to be paid at 18, and if he dies before attaining that age, to B; A takes a vested interest, subject to being divested in favour of B if A dies under 18. Such ulterior bequests are themselves subject to the rules in sections 120 to 127, 129 and 130.
Section 132 then imposes a stern rule of construction: an ulterior bequest of the kind contemplated by section 131 cannot take effect unless the condition is strictly fulfilled. The illustration shows the rigour: a legacy to A, with a proviso that if he marries without the consent of B, C and D, the legacy shall go to E. D dies. A marries without the consent of B and C. The gift over to E does not take effect, because the condition — want of consent of all three named persons — cannot now be strictly fulfilled. The contrast with section 128 is exact and frequently examined: substantial compliance saves a condition precedent, but only strict fulfilment can trigger a gift over on a condition subsequent. The reason is that the law leans in favour of the vested interest already created and against its defeasance.
Void conditions subsequent and the time of performance: sections 134 to 137
Section 134 addresses a bequest conditioned to cease on a specified uncertain event happening or not happening; where the event is one that does not amount to performance of the condition, the bequest fails. The crucial doctrinal point, however, is what happens when a condition subsequent is itself impossible, unlawful or immoral. Following the common-law rule, such a void condition subsequent is simply struck out, and the prior gift, which had already vested, takes effect as an absolute interest freed of the condition. This is the mirror image of the rule for conditions precedent under sections 126 and 127, where the void condition pulls the whole gift down with it. The reconciliation lies in the Act's policy of preserving vested interests: a condition that would divest an estate is treated as ineffective if the law will not enforce it, leaving the estate where it was.
Section 135 deals with a condition that the legatee shall make a gift or restore property, and sections 136 and 137 with the time for performance. Section 137 provides that where a will requires an act to be performed, whether as a condition precedent or a condition subsequent, but specifies no time within which it is to be performed, the condition may be fulfilled within any time, however long, after the testator's death — unless the nature of the case fixes a time; and where a time is specified, fulfilment within that time is required, with the section making provision for further time where performance has been prevented by fraud. The cumulative effect of sections 126 to 137 is a coherent code: classify the condition as precedent or subsequent, test it against impossibility, illegality and the standard of performance, and locate the time within which it must be satisfied.
Construction in practice: the Tagore principle
The unifying thread across void and conditional bequests is that everything turns on the construction of the will. In Purnendu Nath Tagore v. Administrator-General of West Bengal, AIR 1953 SC 290, the Supreme Court was called upon to decide, on the will of Raja Prafulla Nath Tagore, whether the Administrator-General was entitled to possession of the property known as "Tagore Villa" for a period of fifteen years after the executors' tenure, or whether the appellant was entitled to immediate possession. The Court approached the dispute as one purely of construction, reading the will as a whole to ascertain the testator's dominant intention and giving effect to it so far as the law allowed. It is a leading illustration of the principle in section 87 that the testator's intention governs, and of the proposition that whether a disposition is absolute, contingent or conditional — and, if conditional, whether the condition is precedent or subsequent — depends on the substance of the language used, not on its form or sequence.
For the examinee, the lesson is methodological. Confronted with a bequest, first ask whether it is void at all — for uncertainty (section 89), for naming a non-existent person (sections 112 and 113), for perpetuity (section 114), or for excessive accumulation (section 117). If it survives that filter, ask whether it is onerous (sections 122 and 123) and whether the legatee must take it whole. Then ask whether it is contingent (sections 124 and 125) or conditional (sections 126 to 137), and if conditional, classify the condition and test it for impossibility, illegality and the required standard of performance. This disciplined sequence, anchored in the bare sections and their illustrations, answers virtually every problem set on this topic. For the wider context of how property devolves where a will fails entirely, see our note on intestate succession general rules.
Frequently asked questions
What is the difference between a void bequest and a conditional bequest?
A void bequest fails altogether and never takes effect — for example, a bequest void for uncertainty under section 89, or one to a person not in existence under sections 112 to 113, or one offending the rule against perpetuity under section 114. A conditional bequest, by contrast, is valid in principle but is annexed to a condition; it takes effect, fails, or is divested depending on whether the condition (precedent or subsequent) is fulfilled, under sections 126 to 137.
What is an onerous bequest under section 122?
An onerous bequest is a single, indivisible gift that ties beneficial property to burdensome property. Under section 122 the legatee can take nothing by it unless he accepts it fully — he cannot keep the benefit and disclaim the burden. The statutory illustration is the testator who bequeaths all his joint-stock shares, some in a prosperous company and some in a failing one with heavy calls expected; if the legatee refuses the bad shares, he forfeits the good ones too.
How does section 123 differ from section 122?
Section 123 applies where the will contains two separate and independent bequests to the same person, one beneficial and one onerous. Unlike the all-or-nothing rule of section 122, the legatee under section 123 may accept the beneficial bequest and refuse the onerous one. The illustration gives a legatee a burdensome coal-mine and, by a separate bequest, a sum of money; he may take the money and decline the mine. The dividing line is whether the items form one composite gift or two severable gifts.
What is the difference between a condition precedent and a condition subsequent?
A condition precedent must be fulfilled before the legacy vests in the legatee; the gift does not take effect until the condition is satisfied (section 128). A condition subsequent is annexed to an interest that has already vested and, if it occurs, divests that interest and may pass it to another (section 131). The standards differ: substantial compliance suffices for a condition precedent under section 128, but a gift over on a condition subsequent requires strict fulfilment under section 132.
What happens if a condition annexed to a bequest is impossible or illegal?
It depends on whether the condition is precedent or subsequent. An impossible condition precedent (section 126) or one contrary to law or morality (section 127) renders the whole bequest void, because the gift can never lawfully take effect. But where the offending condition is subsequent — a divesting condition — the void condition is simply disregarded and the prior gift, already vested, takes effect as an absolute interest. The law leans in favour of preserving vested interests.
Why does the construction of the will matter so much in this area?
Because the legal consequences flip entirely depending on classification, and classification is purely a matter of construction. Whether a disposition is absolute, contingent or conditional, and whether a condition is precedent or subsequent, turns on the substance of the testator's language read as a whole, not on its form. The Supreme Court in Purnendu Nath Tagore v. Administrator-General of West Bengal, AIR 1953 SC 290, treated the dispute over "Tagore Villa" as one purely of construing the will to find and give effect to the testator's dominant intention under section 87.