DOCTRINE OF TRANSFER OF PROPERTY FOR THE BENEFIT OF

UNBORN PERSON UNDER TRANSFER OF PROPERTY ACT, 1882

I. INTRODUCTION
In India, transfer of property is governed by Transfer of property Act, 1882 which is a general
law dealing with the basic principles to transfer a property. Both Movable as well as immovable
property is the subject matter of this Act. This Act deals with the transfer by act of parties not
with the transfer by operation of law. The other basic premise of this Act is that the transfer must
be between two living persons, it means that only transfer Inter vivos are dealt with in the Act.
But, there are some provisions under this act by which interest in the property can be created in
favour of a person not even in existence at the time of transfer, means the unborn person.

A person not in existence has a specific reference to one who may be born in the future but does
not have a current existence. Even thought a child in womb is literally not a person in existence,
but has been so treated under both Hindu Law and English Law. There is a French word for an
Unborn person i.e. En Ventre Sa Mere which means “in the mother's womb”.

Thus, it should be noted that the term ‘unborn’ here, refers to not only those, who might have
been conceived but are not yet born, i.e. a child in womb, but also includes those who are not
even conceived. Whether they will be born at all or not is all possibility, but a transfer of
property is permissible to be effected for their benefit. Therefore, section 13 of the Transfer of
property Act, 1882 provides a mechanism to transfer an interest in favour of a person not even in
existence at the time of transfer.

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II. GENERAL RULE OF TRANSFER UNDER TRANSFER OF PROPERTY
ACT, 1882

Under transfer of property Act, 1882 Section 5 defines the term “transfer of property” as –

“Transfer of property” means an act by which a living person conveys property, in present or in
future, to one or more other living persons, or to himself, or to himself and one or more other
living persons; and “to transfer property” is to perform such act”.

Therefore, by virtue of this section it is important for a valid act of transfer of property that such
transfer must be between two living persons. The expression “living person” includes a company
or association or body of individuals, whether incorporated or not, but nothing herein contained
shall affect any law for the time being in force relating to transfer of property to or by
companies, associations or bodies of individuals.

So, it is a general rule under this Act that both the transferor and the transferee must be living
persons at the time of transfer.

2.1 EXCEPTION TO THIS GENERAL RULE-

As the Section 5 of the Transfer of Property Act, provides that a property can only to be
transferred to a living person, but Section 13 of the Act deals with the provision to transfer a
property for the benefit of the unborn child. Therefore, Section 13 is an exception to the general
rule of transfer inter vivos Under S. 5, which allow the transferor to transfer a property for the
benefit of an unborn child.

The provision states that-

“Where, on a transfer of property, an interest therein is created for the benefit of a person not in
existence at the date of transfer, subject to a prior interest created by the same transfer, the
interest created for the benefit of such person shall not take effect, unless it extends to the whole
of the remaining interest of the transfer in the property.”1

1 The Transfer Of Property Act, 1882, §. 13.

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It clearly shows that this provision allow the transferor to create an interest for the benefit of an
unborn child even though such interest can not be created directly, there must be a prior interest.
According to this section, even though the transferee is not in existence when the transfer takes
place, but by creating prior interest in favour of other living person, transferor can transfer the
property ultimately to the unborn person.

The Another important aspect is that, for the purpose of this section it is essential that the
transferee must come into existence in the future such as the child in the mother’s womb and till
the time the transferee come into existence, such interest can be created to another person.

III. RULES FOR THE TRANSFER FOR THE BENEFIT OF UNBORN

PERSON

There are some rules for the transfer for the benefit of Unborn person under section 13 of the
Transfer of Property Act, 1882.2

i) No Direct transfer to the unborn person

The transfer of property can be done by way of trusts or by creating interest in the four of
another living persons but not directly to the unborn person. In no case, the transferor is able to
transfer a property in the favour of a person not in an existence.
Example: A can not transfer a house in the favour of his grandson directly who is not even in
existence at that time.

ii) Prior Interest in favour of living persons

As far as the creation of a prior interest is concerned, first, the property is given for life to a
living person. It is not necessary that life interest should be created in favour of only one living
person. The transfer is competent to create successive life interests in favour of several living
persons at the same time.
For instance: “A” transfer property to B for life, and after him, to C, and then to D again for
their lives and then absolutely to B’s unborn child UB. On B’s death, the possession would be
taken by C and on C’s death, by D. On D’s death, the possession would go to B’s child, who

2 The Transfer Of Property Act, 1882, §. 13.

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should have come in existence by this time. If he not there, the property would revert back to A,
if he is alive, else to his hiers. Life interest can be enjoyed by person(s) until the unborn comes
into existence. Prior interest is not affected by reason of the subsequent interest being rendered
void by this rule. It is neither enlarged or extinguished.3

iii) Before the death of last life estate holder, the unborn person must comes into existence

The unborn person must come into existence before the death of the last life estate holder. The
prior interest can be created in the favour of more than one living persons, but before the death of
the last prior interest, such unborn person must come into existence. If the last prior interest dies
and the unborn person has not come into existence, then such interest in the favour of an unborn
person ceases to exist.

iv) Rule against perpetuity

The term perpetuity means continuous and unending transaction. In terms of property law, it
occurs when people who want to retain the property in their own family transfer it from
generation to generation. So in this way, society would be deprived of any of the benefit arising
out of that property. This is the reason rule against perpetuity has been incorporated under
section 14 which provides the "maximum period as to when" such property can be vested upon
such unborn person. Following are the essentials for Rule against perpetuity -

1. There must be Transfer of property.

2. Transfer of property should be such, that it creates an interest in favour of the unborn person.

3. Interest created must take effect after the lifetime of one or more persons living at the date of
such a transfer and during the minority of the unborn person.

4. The unborn person should be in existence during the expiration of interest of living person.

5. The vesting of the interest in favour of the ultimate beneficiary may be postponed only up to
the life or lives of living persons plus the minority of the ultimate beneficiary but not beyond
that.

3 Mohamed Shah v. Official Trustee of Bengal, (1909) 36 CAL 431.

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Therefore it can be said that, where an interest is created for the benefit of an unborn person,
such interest shall take effect only if the interest is to vest in such unborn person before he attains
the age of eighteen years as provided by the section 14 which laid down the rule against
perpetuity.4

v) Immediate transfer of rights to the unborn person as soon as he comes into existence

All the rights should vest in the unborn child as soon as he comes into existence. He will the
absolute owner of the property vested in him and the title of the property would immediately vest
in him under section 20 of the transfer of property Act, 1882 which states that “Where, on a
transfer of property, an interest therein is created for the benefit of a person not then living, he
acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a
vested interest, although he may not be entitled to the enjoyment thereof immediately on his
birth”. 5

The pertinent fact here is that the transfer can be made to an unborn person but not to the issue of
an unborn person. Where the gift made in favor of the unborn grand children was not in respect
of the whole interest in the property, the gift was held to be a valid document.

Like In a case where the trust was a family trust created for the benefit of settlor and his wife, his
two sons and their children to be born. At the date of the trust the settlor’s family consisted of his
wife and his three children. The trust deed provided that the trustee after making provisions for
meeting the necessary expenses, the property will remain in lifetime of settlor, thereafter to his
wife, thereafter to his three sons in equal shares. Remainder in favor of the sons children that
may be born and remain alive at a certain period subject to certain restrictions. The legality of the
gift made in favor of the grandsons was questioned. It was held that the trust in favor of the
grand-children in deed of trust was void.6

vi). There must be Absolute interest for the benefit of an unborn person
Limited interest cannot be created for the benefit of an unborn person even though it is subject to
a prior interest in favor of a living person.

4 The Transfer Of Property Act, 1882, §. 14.

5 The Transfer Of Property Act, 1882, §. 20.
6 Isaac Nissim Silas v. Official trustee of Bengal, A.I.R 1957, Cal 118.

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For instance: “A” creates a life estate in favour of his friends B, and a life estate for the benefit
of B’s unborn first child UB1 and then absolutely to B’s second child UB2. This for instance is
of limited interest in the property for the benefit of an unborn person and would therefore be void
and incapable of taking effect in law. After the death of B, here, the property would revert back
to A or his heirs as the case may be, as even though the transfer for the benefit of UB2 appears to
be proper, as it is dependent on a void transfer that cannot take effect in law; a transfer
subsequent to, or dependent on a void transfer can also not take effect.
Thus, where a father gave a life interest in his properties to his son and then to his unborn child
absolutely, it was held that the settlement was valid.7 But where the interest in favour of the
unborn child was a life interest the settlement would be void, and a subsequent interest would
also fail.8

Similarly where “A” transfers property of which he is the owner to B in trust for A and his
intended wife successively for their lives, and, after the death of the survivor, for the eldest son
of the intended marriage for life, and after his death for A's second son. The interest so created
for the benefit of the eldest son does not take effect, because it does not extend to the whole of
A's remaining interest in the property.9

vii). Interest must fail if prior interest fails

Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the
benefit of a person or of a class of persons fails in regard to such person or the whole of such
class, any interest created in the same transaction and intended to take effect after or upon failure
of such prior interest also fails. 10 It means where an interest is intended to take effect after a prior
interest and the prior interest is void for any reason, the rule is that the subsequent interest also
fails. The reason is that the persons entitled under the subsequent limitations are not intended to
take unless the prior limitation is exhausted and as the prior limitation can never come into
operation as being void, much less be exhausted.

7 Jv Satyanarayan v Pyboyina Manikyan AIR 1983 Andh Pra 139

8 Girish Dutt v Data Din AIR 1934 Oudh 34.
9 T. Subramania Nadar v. T. varadharajan, AIR 2003 Mad 364.
10 The Transfer Of Property Act, 1882, §. 16.

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For instance – Where S gave away property to R for life and after her death, if there be any
male descendants to them absolutely. If R would have only daughters they were to have it
without any power of transfer. In absence of any issue male or female property was to go to D.
Gift to R’s daughter was only of limited interest and as such void under section 13 and gift over
to D, was void under this section.11

IV. JUDICIAL DECISIONS ON THE TRANSFER FOR THE BENEFIT OF

UNBORN PERSON

1. GIRJISH DUTT AND OTHERS V. DATA DIN AND OTHERS

A made a gift of her property to B( daughter of A’s nephew) for her life and then to her sons
absolute. B had no child on the date of execution of the gift. The deed further provided that in
case, B had only daughters, then the property would go to such daughters but only for their life
and without the power of alienation. In case B had no child then after the death of B, the property
was to go absolutely to X. The deed on paper provided a life estate in favour of B’s unborn
daughters: which is contrary to the rule of sec.13. However, B died without any child, and X
claimed the property under the gift deed.
The issues were-
1. Whether gift to unborn daughters was valid.
2. Whether gift to B was valid.
3. Whether claim of X was valid.
The court held that gift in favor of B’s daughter was void under Section 13 of the Transfer of
Property Act because the transfer of the interest to them was subject to the prior interest created
by the same transfer in favor of B and it was a transfer which did not extend to the whole of the
remaining interest of the transferor in the property, since it was intended merely to be a life
interest. So, it was a gift of only limited interest (gift without power of alienation); she had not
been given absolute interest. The court also observed that where a transfer in favour of a person
or his benefit is void under sec.13, any transfer contained in the same deed and intended to take
effect or upon failure of such prior transfer is also void. In determining whether the transfer is in
violation of sec.13, regard has to be made with respect to the contents of the deed and not what

11 Girish Dutt v Data Din AIR 1934 Oudh 34

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happened actually. Here as the transfer stipulated in the contract that was void, the transfer in
favour of X also became void. Hence, X’s claim was defeated. However, the gift for life to B
was valid as B was a living person at the date of the transfer.12

2. FRAMROZE DADABHOY MADON V. TEHMINA

Tehmina settled a certain sum upon trust in favor of herself, for life, and after her death and
subject to a power of appointment, exercisable by will or codicil only, amongst her issue born
during her lifetime; in trust for all her children who being sons, "shall attain the age of 18 or
being daughters shall attain that age or marry under that age in equal shares."

It was held that the decision in the Sopher’s case13 could not be applied to the trusts of a
settlement which were transfer inter-vivos. It was held that the words ‘extend to the whole of
remaining interest of the transferor in the property’ in sec.13 of the Transfer of Property Act
were directed to the extent of the subject-matter and to the absolute nature of the estate conferred
and not to the certainty of vesting. Vesting must, however, take place within the limits prescribed
by Section 14. In this case, vesting is to take place amongst the children of Bai Tehmina, who
being sons attain the age of 18 or being daughters attain that age or marry under it, and this
qualification can be achieved as well before as after the death of Bai Tehmina. This is no
infringement of the restrictions of Section 14 of the Act, since all the children whether already
qualified or not must be living at the death of Bai Tehmina. Therefore, the interests created in
favour of the unborn persons, are valid and effectual.14

12 Girish Dutt v. Data Din AIR 1934 Oudh 34.

13 Sopher v. Administrator-General of Bengal, AIR 1944 PC 67.
14 Framroz Dadabhoy v Tahmina 49 Bom L.R.882.

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V. CONCLUSION

To conclude, it can be said that the provision of section 13 is important as it laid down an
exception to the general rule of transfer of property Act which emphasizes upon the inter vivos
transfer. The said provision extends the scope of this general rule and states about the creation of
an interest in property in favour of an unborn child. Provided that, it provides a mechanism for
such transfer and laid down some conditions which ought to be followed such as no direct
transfer, creation of life interest in favour of living person, immediate vesting of interest upon
such unborn person when come into existence and Absolute interest.

Therefore, this principle has referred as one of the important provisions which even recognizes
the right of an Unborn person because it is important in the property matters that the interest of
every persons must be recognized including child in the Womb of mother.

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VI. BIBLIOGRAPHY

STATUTE

 The Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882(India).

BOOKS

 DR. AVTAR SINGH, TRANSFER OF PROPERTY ACT, (Universal Law Publishing Co.,
2nd ed. 2009)

 G.P. TRIPATHI, TRANSFER OF PROPERTY ACT, 1882, (Central Law Publication,

Allahabad, 17th ed. 2011).

OTHER SOURCES

 Surbhi Gupta, Can Property Be Transferred To An Unborn Child, MAKAAN IQ (Sept. 01,
09:53PM),https://www.makaan.com/iq/legal-taxes-laws/can-property-be-transferred-to-an-
unborn-child.
 Urwashi Ahuja, Transfer for Benefit of Unborn Person, ITJ (Sept. 01, 09:53PM),
http://lawtimesjournal.in/transfer-for-benefit-of-unborn-person/.
 Shivani Gupta, Transfer of Property to an Unborn Child, LAWCTOPUS (Sept. 01,
09:53PM), https://www.lawctopus.com/academike/transfer-property-unborn/.

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