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Section 128: Fulfilment of condition precedent to vesting of legacy

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 127 All 391 Sections of Indian Succession Act Section 129

Legal Commentary & Landmark Judgments: Section 128

Section 128 codifies the doctrine of substantial compliance for conditions precedent, providing that a condition precedent is deemed fulfilled if it has been substantially complied with.

  • Substantial Performance Standard: A condition precedent is deemed to have been fulfilled if it has been substantially compiled with, even if strict literal performance was not achieved.
  • Protection Against Rigid Literalism: Prevents a legatee from being deprived of a testamentary gift due to technical, inconsequential, or involuntary deviations in performing the condition.
  • Good Faith Requirement: The legatee must demonstrate honest intent and reasonable diligence in attempting to carry out the testator's directions.
Key Landmark Precedents:
  • Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (1862) 9 MIA 123: The Privy Council established that in evaluating conditions attached to testamentary gifts, equity looks to the substance and intention of the testator rather than technical literalism.
  • Rajendra Prasad v. Gopal Prasad (1930) 10 Pat 212: Affirmed that under Section 128, bona fide substantial performance of a condition precedent vests the legacy in the intended beneficiary.
Courtroom Practice & Strategic Litigation Guidance:

Where a condition precedent (e.g. marrying with the consent of named trustees) is partially obstructed because one trustee died or became untraceable, counsel should invoke Section 128 to establish that obtaining consent from the surviving trustee constitutes valid substantial compliance.

Section 127 All 391 Sections of Indian Succession Act Section 129