CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

PROJECT WORK

PROPERTY LAW
‘Transfer for the benefit of Unborn Person’

UNDER THE SUPERVISION OF DR. PALLAVI (ASSISTANT PROFESSOR, CUSB)

SUBMITTED BY:-
PRASHANSHA KUMUD
CUSB1713125028
BA. LLB (H) V SEMESTER

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 ACKNOWLEDGEMENT

This is not just a customary acknowledgement of help that I received but a sincere expression of
gratitude to all those who have helped me complete this project and made it seem apparently
more readable than otherwise it would have been.

I am in debt to my faculty advisor Dr. Pallavi Singh for giving such an interesting and amazing
topic transfer for benefit of unborn person band making it seem easy by lucidly explaining its
various aspects. I would like to thank him for guiding me in doing all sorts of researches,
suggestions and having discussions regarding my project topic by devoting his precious time.

I thank CUSB for providing Library, Computer and Internet facilities. and lastly I thank my
friends and all those persons who have given valuable suggestions pertaining to the topic and
have been a constant source of help and support.

PRASHANSHA KUMUD

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 TABLE OF CONTENTS

INTRODUCTION.........................................................................................................................5

POSITION IN INDIA....................................................................................................................5

POSITION IN ENGLISH LAW...................................................................................................6

LEGAL PROVISION....................................................................................................................7

ESSENTIALS.................................................................................................................................7

OBJECT.........................................................................................................................................9

RIGHTS OF UNBORN...............................................................................................................10

Distinction between Indian law and English Law.................................................................10

CASE LAWS................................................................................................................................11

CONCLUSION............................................................................................................................13

BIBLOGRAPHY...........................................................................................................................14

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 TABLE OF CASES

 ARDESHIR V. DUDA BHOY’S 7

 ELLIOT V. LORD JOICEY AND ORS. 6

 FRAMROZE DADABHOY V. TEHMINA 8

 GIRIJESH DUTTV. DUTTA DIN 3

 ISAAC NISSIM SILAS V. OFFICIAL TRUSTEE OF BENGAL 5

 SOPHER V. ADMINSTRATIONGENERAL OF BENGAL 7

 SRIDHAR V. N. RAVANNA 8

 WHITEBY V. MICHEL 4

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Research methodology:

The methodology used in this research project is simply based on the contents provided in the

different book and self analysis through internet sources as well meaning thereby sources of this

project is based on the method of book reading and internet.

a) Aims and Objectives Of Research: The main aim behind the making of this project is to

find out way by which a immovable property can be transferred for the benefit of unborn and in

addition to this, meaning and essentials is also to be explained under this assignment. The main

objective of this project is to explain a exception to the general rule

b) Research Problem: The problem of this research project is based on “Transfer for the

benefit of unborn - A Critical Analysis ” in which it is to be discussed that how can a immovable

property can easily be transferred to an unborn.

c) Research hypothesis: The term “transfer for the benefit of unborn” is defined under section

13 of Transfer of Property Act, 1882. And it is also explained what does ostensible owner stands

for along with help of certain landmark case laws.

d) Scope and Limitation: The scope of this assignment is that, a person having a title or right

over an immovable property, can transfer that right or title to another with the help of provision

as explained under section 13 of TPA, 1882.

e) Types of research:

The type of this assignment is Doctrinal as the project is made by book reading and taking

guidance and assistance from the internet

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INTRODUCTION

“Property is the condition of good life” says Aristotle. He regards it is an extension of human
personality and his view is that property is essential for the satisfaction of a natural instinct of
possession and an equally natural impulse of generosity. Importance and relevance of property in
today‘s materialistic world is undeniable. Property related disputes dominate the courts among
strangers, former friends and relations who fight tooth and nail with fret and flume wasting
several precious years. It is also true that relevance of property in the socio–economic life of an
individual is relatable more with respect to its disposition rather than its abstract content which
indicates the inherent necessity of awareness of the basic concepts with respect to transfer of
property. Right to property is an incentive to effort and induces men to industry and prudence. It
should meet the demand of natural justice that man should be entitled to the reward of his
labour, also promote economic growth and The Transfer of Property Act,1882, evolves on this
concept. Prior to the Transfer of Property Act 1882, there was practically no law relating to
property in India. Before this Act the transfer of property was governed by principles of English
law and equity. This was not satisfactory, for the rules of English law were not always
applicable to social conditions in India, and the law became confused and conflicting. To remedy
this state of affairs, commission was appointed in England and statute was made in 1882. This
Act lays down certain general principles as to transfer of property which has to be followed.
Transfer for benefit of unborn person is such a concept which was incorporated under section 13
of this Act. This paper discusses when and how transfer of property made to an unborn child.

POSITION IN INDIA

Before the Transfer of Property Act, 1882, there was practically no law as to real property or, as
to personal property, in India. A few points had been covered by regulations, and the Acts,
which were repealed either wholly or in part by Section 2 of the Transfer of Property Act but for
the rest of the law, the Courts, in the absence of any statutory provision, adopted the English law
as the rule of justice equity and good conscience. This was not satisfactory, for the rules of
English law were not always applicable to social conditions in India, and the case law became

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confused and conflicting. To remedy this state of affairs, a Commission was appointed in
England to prepare a Code of substantive law for India, and the Transfer of Property Act, though
drafted in 1870, was the last of these drafts to become law.

By the private laws of Hindus and Mahomedans dispositions of property in favor of unborn
persons could not be made, but no such embargo on anticipatory benevolence attached to the
private laws of other communities, including Christians, Parsis and Jews, to whom English law
was applied, to the extent that estates tail could be created as seen in the Modes of Conveying
Land Act, 1854. The Indian Succession Act, 1865, was the first Act, which curtailed the right of
the other communities to dispose of property by will to unborn persons, by modifying the
English law, but so far as the transfer of property inter vivos was concerned, English law
continued to be applied to the other communities, until the passing of the Transfer of Property
Act in 1882, and by statutes of 1914, 1916 and 1921. Hindu private law, which prohibited any
disposition in favor of an unborn person, was amended so as to bring into operation the two
groups of sections concerning dispositions in favor of unborn persons contained respectively in
the Indian Succession Act, 1865, and the Transfer of Property Act, 1882.

POSITION IN ENGLISH LAW

The English Law relating to transfer in favour of unborn person is now governed by the rule
against perpetuities as laid down in section 163 of the Law of Property Act, 1925. Before this
Act, the property could be transferred in favour of an unborn subject to “rule against double
possibilities”. Under this rule, property could be transferred for life in favour of the first unborn
person but to next unborn absolutely.

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LEGAL PROVISION

13. Transfer for benefit of unborn person.— Where, on a transfer of property, an interest
therein is created for the benefit of a person not in existence at the date of the 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 transferor in
the property1.

EXPLANATION:

Section 13 deals with the transfer of property to an unborn person, as a general rule a transfer
cannot be made directly to an unborn, we have seen under section 5 where it has been clarified
that a transfer of property under section 5 can be made only between the living person i.e. inter
vivos. But section 13 can be said to be an exception to the principle laid down under section 5.
Under this section a valid transfer can be made in favour of an unborn person, but not directly.
Such a transfer can only be made by the machinery of trusts.Thus for making a valid transfer in
favour of an unborn, the following three condition must be fulfilled.

 The transfer must not be made directly to unborn.

 There must be prior interest.
 The interest which created in favour of unborn must be absolute.

ESSENTIALS

No direct transfer

A transfer cannot be made directly to an unborn person. Such a transfer can only be made by the
machinery of trusts. It is fundamental principle of the English common law, that any disposition
of land calculated to produce an abeyance of ownership is void. Accordingly, if transfer were
made directly to an unborn person, there would be abeyance ownership from the date of transfer
till the coming into existence of the person.

1
Section 13, Transfer Property Act,1882

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Unborn person must be in existence when the prior interest comes to an end

The estate must vest in some person between the date of the transfer and the coming in to
existence of the unborn person. The interest of the unborn person must, therefore, be in every
case preceded by a prior interest; and the section in effect says that interest of the unborn person
must be the whole remainder, so that it is impossible to confer an estate for life on an unborn
person.

Case law

Girijesh Dutt v. Dutta Din2

A made a gift of her properties to her nephew’s daughter B for life then absolutely to B’s male
descendants if she should have any. But in the absence of any male child of B, B’s daughter
without power of alienation and, if B has no descendants male or female then to her (A’s)
nephew. B died issueless. The court held that the gift for life to B was valid as B was a living
person at the of the transfer. But gift in favour of B’s daughter was void under section 13 of this
Act because it was a gift of only limited interest (gift without power of alienation); she had not
been given absolute interest. Further, since this (prior) transfer was invalid, the subsequent
transfer depending on it (i.e to A’s nephew) also failed.

Interest transferred in favour of the unborn child must be absolute

The entire property must be transferred to the unborn person. According to this rule a property
cannot be transferred to an unborn person for life. Thus, where the beneficiary is a person not in
existence on the date of transfer then the interest transferred to him must be absolute.

Case law

Whitby v. Michel

In this case, the English Court recognized a rule called rule against double possibilities because
it is possible that the unborn person gets the life interest after his birth and again if the issue of
such unborn person takes birth then he will also takes the life interest, therefore to check the
second possibility, under the English law life interest to the first unborn person is possible and
not the unborn issue of such unborn person.
2
AIR 1934 Oudh 35.

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Immediate transfer of rights

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. 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 grandchildren was not in respect of the whole interest in the property, the gift was
held to be a valid document.

Isaac Nissim Silas v. Official trustee of Bengal3

In this case 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.

OBJECT

The principle underlying the rule is that a person disposing of property to another should not
handcuff the free disposition of that property in the hands of more generations than one. The
section provides that there should never be such a person as an unborn one takes for life, because
it is an obvious contingency4.

3
A.I.R 1957, Cal 118
4
http://lawtimesjournal.in/transfer-for-benefit-of-unborn-person/ (last visited on 12/ 11/19)

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RIGHTS OF UNBORN

According to Black Law Dictionary 5 refers to “rights of unborn child”, thus the rights of an
unborn child are recognized in various in various different legal contexts; e.g., in criminal law,
murder includes the unlawful killing of a foetus (cal. Penal Code, section 187), and the law of
property considers the unborn child in being for all purposes which are to its benefit, such as
taking by will or descent. After its birth, it has been held that, it may maintain a statutory action
for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain
an action for the consequences of prenatal injuries, and if he dies of such injuries after her birth,
an action will lie for his wrongful death.

Case law

Elliot v. Lord Joicey and Ors6.,

In this case, it was held that an unborn child is taken care of just as much as if it were in
existence, in any case in which the child’s own advantage comes in question; though no one else
can derive any benefit through the child before its birth.

Distinction between Indian law and English Law

1) The minority period in India is 18 years whereas it is 21 years under English law.

2) The period of gestation should be an actual period under Indian Law but it is a gross
period under English law.

3) Under Indian law, property should be given absolutely to the unborn person whereas
in English law, need not be absolutely given.

4) The unborn person must come into existence before the death of the last life estate
holder as per Indian law whereas he must come into existence within 21 years of the
death of the last life estate holder in case of English law.

5
Black’s Law Dictionary, 8th edition.
6
1935 AC 209.

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CASE LAWS

 Sopher v. administrator General of Bengal7

In this case a testator directed that his property was to be divided after death of his wife
into as many parts as there shall be children of his, living at his death or who shall have
pre-deceased leaving issue living at his death. The income of each share was to be paid to
each child for life and thereafter to the grand-children until they attained the age of 18,
when alone the grand-children were to be absolutely entitled to the property. The bequest
to the grand children was held to be void by the Privy Council as it was hit by Section
113 of the Indian Succession Act which corresponds to Section 13 of the Transfer of
Property Act. Their Lordships of the Privy Council observed that "If under a bequest in
the circumstances mentioned in Section 113, there was a possibility of the interest given
to the beneficiary being defeated either by a contingency or by a clause of a defeasance,
the beneficiary under the later bequest did not receive the interest bequeathed in the same
unfettered form as that in which the testator held it and that the bequest to him did not
therefore, comprise the whole of the remaining interest of testator in the thing
bequeathed.

 Ardeshir v. Duda Bhoy’s8

D was settlor who made a settlement . According to the terms of settlement, D was to get
divine life one-third each was to go to his sons A and R. After D's death, the trust
property was to be divided into two equal parts. The net income of each property was to
be given to A and R for life and after their death to the sons of each absolutely. If A and
R both pre-decease D without male issue, the trust were to determine and the trust
property were to revert to the stellar absolutely. The settlor then took power to revoke or
vary the settlement in whole or in part of his own benefit. It was held that R's son who
was riot born either at the date of the settlement or his death did not take any vested
interest and the gift to him was invalid A's son who was alive at these days did not allow
the vested interest.
7
AIR. 1944 P.C 67
8
45 BOMBAY 395

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  Sridhar v. N. Ravanna9

The suit property was bequeathed gift to one Mr. R' and then to devolve upon his male
child. R' had only life interest but he transferred the gifted property by sale after the birth
of his male child, i.e., the plaintiff. It was held that the sale was bad in law and the
plaintiff was entitled to receive the consideration.

 Framroze Dadabhoy Madon v. Tehmina10

In this case Tehmina settled a sum of Rs. 47,000, representing the proceeds of sale of
diverse investments, made on her behalf by her father, Dadabhoy Sorabjee Madon, upon
trusts in favor of herself, for life, and after her decease 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." In default of issue
there is a general power of appointment with regard to part only of the trust funds to be
exercised by will or codicil, and, "subject to the foregoing trusts and powers"; the
trustees are to hold the trust funds in trust for the said Dadabhoy Sorabji Madon, his
heirs, executors and assigns.

These arrangements, in favor of the issue of Bai Tehmina, have been held by the learned
Judge to be void by reason of Section 13 of the Transfer of Property Act, 1882, as have
also the subsequent trusts, with the result that a declaration has been made that there is a
resulting trust of the settled funds in favor of the settlor.

In coming to that conclusion the learned Judge held that the case of Sopher v.
Administrator General, Bengal , which is a decision of the Privy Council upon the trusts
of a will, declared to be void under Section 113 of the Indian Succession Act, 1925,
applied, and he followed a decision of Mr. Justice Blagden in the case of Ardeshir Baria
v. Dadabhoy Baria (1944) 47 Bom. L.R. 287, who also applied Sopher's case to the trusts
of a settlement. It was held by the Lordships that the decision in the Sopher’s case could
not be applied to the trusts of a settlement which were transfer inter-vivos. It was held

9
AIR 2012Kar. 79
10
49 BOM L.R. 882

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 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.

CONCLUSION

A child in the womb is literally not a person in existence, but has been so treated under both
Hindu Law and English Law child in its mother’s womb is for many purposes regarded by a
legal fiction as already born, in accordance with the maxim nasciturus pro jam nato habetur.

Section 13 provides that the property cannot transfer directly to an unborn person but it can be
transferred for the benefit of an unborn person. For transfer of property for the benefit of unborn
person two conditions are required to be fulfilled: Prior life interest must be created but not for
an indefinite period in favor of a person in existence at the date of transfer, and   Absolute
interest must be transferred in favor of the unborn person.

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 BIBLOGRAPHY

BOOKS

 Sinha, R.K, The Transfer of Property Act, Central law agency, Allahabad, 19th edition

 Shukla, S.N, Transfer of Property Act, Allahabad law agency, Haryana, 29th edition

 Tripathi, G.P, The Transfer of Property Act, Central law Publications,18th edition

 Mulla, The transfer of Property Act, LexisNexis, 12th edition

Website

 http://lawtimesjournal.in/
 https://www.legalbites.in/
 https://www.lawjar.com/
 https://www.lawctopus.com/

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