PROJECT

TRANSFER OF PROPERTY ACT

On
IS TRANSFER FOR THE BENEFIT OF AN UNBORN
CHILD IS VALID TRANSCATION

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 TABLE OF CONTENTS

S No. Particulars Page No.

4. Introduction 03-04

5. Research Methodology 04

Research Question 04

Objectives of the Study 04

Sources of data collection 04

Scope and Limitations of the Study 04

6. Chapterisation 04-05

Chapter - 1 05-07

Chapter - 2 08-09

7. Conclusion 10

8. Reference 10

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 IS TRANSFER FOR THE BENEFIT OF UNBORN PERSON A VALID
TRANSCATION?

INTRODUCTION

A transfer could be defined as the act of conversion or transferring of something from one
individual to another. Any physical or virtual object owned by a person or a group of people is
considered as a property. There are different means of transferring a property, it could be
transferred from one person to another through transferring rights, interests, ownership, or
possession. Either or more of the ingredients can be satisfied by the parties. The property can be
transferred according to the below mentioned two ways:
Firstly, it could be transferred by the act of the parties. Secondly it could be transferred by law.
Section 5 of the Transfer of Property Act (TPA), 1882 defines the transfer of property.
According to the act, “It is the act done by a living person conveying property to one or more
person or by himself or by one or more living persons in the present or the future. Living people
include a company, an association, or body of individuals whether incorporated or not.”
For instance, X is the son of Y and is the owner of Five estates, he wants to transfer two of the
estate to his father (Y), however his father expired 6 months back. Therefore, X will not be able
to transfer his estate to his father because he is not a living person and the transfer would be
invalid. The transfer of the immovable property from a living person to another living person is
done through the Transfer of Property Act, 1882. The transfer of an immovable property from a
living person to another living person is done through the Sale of Goods Act, 1930. The transfer
of an immovable and a movable property from a dead person to a living person is done through
the Indian Succession Act, 19251. Possession of property is a vital part in present days world, it
provides a security to the live and to the upcoming generations. Once a time it was also the part
of the Fundamental Rights of the Indian Constitution. However, it was removed from part III i.e.,
the Fundamental Rights and it was made as a legal right. Before the codification of the laws, the
matters relating to property were governed through the Personal Laws. The Transfer of the
property act is the most important act with the regards of the transferring of the property. The

1
“Shivani Gupta, Transfer of Property to an Unborn Child, Lawctopus, Academike, Feb 14, 2015.
https://www.lawctopus.com/academike/transfer-property-unborn/”

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Historical background, the important concepts, kinds of the transfer, features of the act and the
essential elements of the act and whether the transfer of property for the benefit of an unborn
child is valid or not is mentioned below in detail.

RESEACH METHODOLOGY

“The research and study of this project work has been executed by referring to the secondary
data present in the internet. Certain legal points have been taken from the site of various
governmental sites. Other information has been taken from relevant websites.
The study work has been concluded after analyzing the data and information from various
sources and site to reach a conclusion with reference to the project topic”.

Research Question
· “To study about the validation of transfer of property to an unborn child for its benefit”.
· “To know and understand the relevance of this law in India”.
Objectives of the study
· “The main focus and objective of this project work is to study and understand the laws of
Transfer of Property Act”.
· “To understand how it evolved indigenously and its relevance in present day context”
and
· “To study about various laws related to Transfer of property to unborn child.”

Sources of data collection

“This project work required analysis of various articles and journal. The information and data for
carrying out the study has been taken from the internet with the help of article, news and case
laws related to the topic”.

Scope and limitation of the study

“Every work and research have its own limitations and same is the case with this project work.
Also, due to this unprecedented situation of coronavirus the scope of this study has been limited
to the limited resource present in internet and also due to the time constraint”.

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Organization/Chaptersation of the study

Chapter 1-
· Evolution of the transfer of property Act, 1882.
· Important Concepts of the Act.
· Essential Elements for the Transfer of the Property.

Chapter 2-
· Provisions related to the transfer of Property for the benefit of an unborn child.
· Essential elements/ pre-requisite for the valid transfer.
· Conclusion.

CHAPTER 1- EVOLUTION OF THE TRANSFER OF PROPERTY ACT, 1882.

Before the arrival and the establishment of British Raj System in India, Indians belonging to
various castes were administered and governed according to their personal laws and the matters
relating to transfer of property was also governed through the personal laws only. When the
Britishers were ruling India they deeply engaged in the legal system of India and eventually they
established informal courts. There was no uniform or concrete law in India as it was there in the
England. Many High Courts suggested the need of making specific laws and acts related to
transfer of property. The very first commission for removing uncertainties was appointed by the
Queen of the England Elizabeth II. “Certain amendments were made in the legislative Council in
1877 and after that the draft was sent to India. However, it still faced some public criticism and
was again reversed. The redraft of the bill was made by the Second Law Commission. Many
provisions were taken from the Law of Conveyancing and Property Act, 1881. Mainly the laws
were made in such a way that it should suit the Indian population”2.

2
“Aarti Bharadwaj, Transfer of property to an unborn child, Legal Service India.
http://www.legalserviceindia.com/legal/article-2055-transfer-of-property-to-unborn-child.html.”

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Again, after the changes made by the Second Law Commission there were still some
shortcomings and a specific committee was made for making the amendments in the Act.
Thence, it is evident that various changes and amendment were made to correct the errors and to
expand its scope.

IMPORTANT CONCEPTS OF THE ACT

· Immovable Property: The General Clauses Act, 1897 defines immovable property as
things that are connected or attached to the land and the interests and benefits emerging
from it. “According to the Transfer of Property Act it could be defined as all property are
immovable property other than standing timber, growing crops or grass.”
· Instrument: Under the TPA, 1882 it is subjected as non-testamentary instrument. In legal
language it refers to a formal document and hence, it is considered as an evidence of the
transfer of property between the living persons.
· Attested: According to the 1926 amendment act, there must be two or more witness and
should sing the document in the presence of the executant. Thence, it is a formal
document which has been signed by the witnesses.
· Registered: Under TPA, 1882, registration of transfer of property should be done where
the act is operative. There are procedures of registration which must be complied with.
“The property should be registered in the same place where the registered office is
situated, the description of property should be mentioned, the deeds should be presented
by a competent person, there must be no fraud.”
· Notice: The term "notice" refers to being aware of a fact. The person is well-versed in a
variety of facts and circumstances. The Transfer of Property Act of 1882 established two
types of notices. Explicit or implicit: The person who has firsthand knowledge of a given
fact. Constructive observation: The fact or knowledge is discovered as a consequence of
circumstances3.
ESSENTIAL ELEMENTS FOR THE TRANSFER OF THE PROPERTY

3
“Diva Rai, Transfer to unborn person: All you need to know, Ipleaders, Oct 21, 2019.
https://blog.ipleaders.in/category/law-notes/”.

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 · Juristic Person or Living/Alive Person – For the valid transfer of property, the transfer
must be done between Juristic persons or living persons. In the case of
Shiromanigurudwara Prabhakar Committee, Amritsar v. Sri Somnath Dass, a juristic
person is described by the court as an individual business, organization, association or
company society but it should not be a partnership. This requirement must be fulfilled by
someone who may sue or be sued.
· “Transfer through Conveyance: Property conveyance may take place in the present or in
the future. Nothing should be transferred before the title is published”.

· “The Property must be transferable: There are certain properties that cannot be
transferred, according to Section 6 of the 1882 Transfer of Property Act”:

▪ “An heir-chance apparent's of inheriting an estate, a relative's chance of

inheriting a legacy upon the death of a kinsman, or any other chance of a similar
nature cannot be transferred”.

▪ “The owner's exclusive right to re-entry for violation of a subsequent condition

cannot be passed to someone else”.

▪ The easementary right is nontransferable.

▪ “The interest of the property restricted in its enjoyment to the owner cannot be
transferred.”
▪ “Political pensions, public officer's pay and public office are not transferable”4.

· Competency for valid transfer: For a transfer to be valid, the person transferring the
property must be not intoxicated, must be of sound mind, should be a major, or not a
person prohibited by law from entering into a contract of transfer of property with
another person.

4
“Prem Ranjani, Aradhana Bhansali, and Ruchita Parikh, India: A brief write-up on transfer of property for the
benefit of an unborn person and rule against perpetuity, Mondaq, Rajani associates, Oct 28, 2015.
https://www.mondaq.com/india/wills-intestacy-estate-planning/366482/a-brief-write-up-on-transfer-of-property-for-
the-benefit-of-unborn-person-and-rule-against-perpetuity.”

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 · Transfer made in prescribed manner: Not all transfer is needed to be made in the writing
form, the transfer which should be in written manner are:

▪ “The sale of a movable property which is valued more than hundred rupees.”

▪ “The sale of intangible must be written format.”

▪ “All mortgages which are more than a hundred rupees should be transferred in a
written form.”

▪ “The transfer of actionable claims must be in a written form.”

▪ “A gift in a form of immovable property.”

▪ “Lease of immovable property exceedingly more than one year.”

CHAPTER 2- PROVISIONS RELATED TO TRANSFER OF PROPERTY FOR THE

BEFENIT OF UNBORN CHILD

Section 13 of the Transfer of Property Act underlays provision for transferring of property to an
unborn child. A child is considered as a living being when it is in its mother’s womb and also has
a legal status. “Thus, in the law of property, there is a narrative that a child env entre sa mere is a
person in being a life chosen to form part of the period in the rule against perpetuities.” This
concept is an English law concept which is called The Rule of Double Possibilities. “As Section
5 of the TPA mentions that the transfer of property is carried out between living persons
however, Section 13 is an exception to the general rule of Section 5 as it mentions the transfer of
property to an unborn person by a born person. Thence, a property can be transferred to an
unborn child in its mother’s womb however, it cannot be transferred to an infant who is not in
the womb”.

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PROPERTY RIGHTS OF AN UNBORN CHILD- The Transfer of Property only grants an
unborn child the right to property if the child is born alive. All of his or her rights are in the name
of his or her parents/trustees before he or she is born.

LEGAL STATUS OF AN UNBORN CHILD- Only if the child in the mother’s womb is born
alive will he or she be able to gain legal rights and inherit land. Although the unborn child cannot
be considered a well-versed person, his or her rights may be entrusted to his or her trustees 5.

ESSENTIAL ELEMENTS/ PRE-REQUISITE FOR VALID TRANSFER

No transfer- A direct transfer of property to an unborn person is not possible. The mechanism of
trusts is the only way to make such a transfer happen. Every property has an owner, which is a
fundamental concept of property law. As a result, transferring property to an unborn child would
result in a situation in which the property will be without an owner from the time the property is
transferred until the unborn person is born.

Before death of last owner- The unborn person must be born before the last holder of the life
estate dies. It is not necessary for him to be born; merely being in his mother's womb is
sufficient. In essence, a child en ventre sa mere is the same as a child in nature, implying that a
child in the mother's womb is the same as a child in the world.

Prior Interest- If the circumstances do not allow for the establishment of a trust, the estate must
be transferred to someone else between the date of transfer and the date the unborn person is
born. To put it another way, any interest generated in favour of an unborn child must always be
followed by an interest created in favour of a living person.

Absolute Interest- The property must be passed in its entirety to the unborn child. “The transition
to an unborn person must be complete, with no subsequent transfers from him to someone else.
An unborn person cannot be granted an interest that lasts only for their lifetime. An unborn

5
“Prem Ranjani, Aradhana Bhansali, and Ruchita Parikh, India: A brief write-up on transfer of property for the
benefit of an unborn person and rule against perpetuity, Mondaq, Rajani associates, Oct 28, 2015.
https://www.mondaq.com/india/wills-intestacy-estate-planning/366482/a-brief-write-up-on-transfer-of-property-for-
the-benefit-of-unborn-person-and-rule-against-perpetuity.”

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person may only be given an estate for his lifetime under English law. This law is known as
theory of doble possibility”. However, the theory of double possibilities imposes a constraint on
this principle of English law. In the case of Whitby Mitchell, this law was recognized.

CONCLUSION

The transfer of Property Act laydowns various rules and regulation on transferring of property.
As it has been mentioned above, according to the section 5 of the act the transfer of property is
executed between living persons. However, section 13 is the exception the section 5, as it
mentions that a transfer of property can be executed for the benefit of an unborn when it is in its
mother’s womb. A child in its mother’s womb is considered as a living being. Therefore, it is
valid to transfer property to an unborn in its mother’s womb. However, there are certain
requirements and pre-requisites which are needed to be completed.

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 REFERANCE

“Shivani Gupta, Transfer of Property to an Unborn Child, Lawctopus, Academike, Feb 14, 2015.

https://www.lawctopus.com/academike/transfer-property-unborn/”

“Prem Ranjani, Aradhana Bhansali, and Ruchita Parikh, India: A brief write-up on transfer of property for

the benefit of an unborn person and rule against perpetuity, Mondaq, Rajani associates, Oct 28, 2015.

https://www.mondaq.com/india/wills-intestacy-estate-planning/366482/a-brief-

write-up-on-transfer-of-property-for-the-benefit-of-unborn-person-and-rule-

against-perpetuity.”

“Diva Rai, Transfer to unborn person: All you need to know, Ipleaders, Oct 21, 2019.

https://blog.ipleaders.in/category/law-notes/”.

“Aarti Bharadwaj, Transfer of property to an unborn child, Legal Service India.

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http://www.legalserviceindia.com/legal/article-2055-transfer-of-property-to-

unborn-child.html.”

“Shivani Gupta, Transfer of Property to an Unborn Child, Lawctopus, Academike, Feb 14, 2015.

https://www.lawctopus.com/academike/transfer-property-unborn/”

12