DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

Dr. Ram Manohar Lohiya National Law University, Lucknow

Sachika Vij – National Law University, Lucknow Project on “Property Laws for
Unborn Persons: Exploring Transfers to Non-Existent Beneficiaries”

“PROPERTY LAWS FOR UNBORN PERSONS:

EXPLORING TRANSFERS TO NON-EXISTENT
BENEFICIARIES”
Keywords:- “Unborn Persons, Transfer, Property, Perpetuity, Interest.”

By- Sachika Vij

TABLE OF CONTENTS
ACKNOWLEDGEMENT .............................................................................................................. 2

DECLARATION ............................................................................................................................ 3

I. INTRODUCTION ....................................................................................................................... 4

II. JUDICIAL INTERPRETATION ............................................................................................... 5

III. SECTION 13 AND SECTION 14 OF TP ACT ..................................................................... 10

IV. SECTION 13 AND SECTION 15 OF TP ACT ..................................................................... 11

V. SECTION 13 AND SECTION 16 OF TP ACT....................................................................... 11

VI. SECTION 13 AND SECTION 20 OF TP ACT ..................................................................... 12

VII. CONCLUDING REMARKS ................................................................................................ 13

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 ACKNOWLEDGEMENT
I would like to express my deepest gratitude and respect to my Dr. Manish Singh
(Property Law) who gave me the opportunity to do this interesting Project on
“Property Laws for Unborn Persons: Exploring Transfers to Non-Existent
Beneficiaries” which helped me in exploring and researching on the topic in great
depth and enriched my knowledge on the same. This project also provided to me a
chance to improve on my writing skills. I hope to be able to provide a project which
is well researched and enriching for the readers and justifies the opportunity given
to me. I also thank my friends and seniors who provided their continuous insights
for improving my project and encouraged me to complete the project within the
given time frame.

SACHIKA VIJ

Enrollment No.- 210101123

B.A. LL.B. (Hons.)

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 DECLARATION

We hereby declare that the Project: “Property Laws for Unborn Persons:
Exploring Transfers to Non-Existent Beneficiaries” submitted by me to Dr. Ram
Manohar Lohiya National Law University, Lucknow, Uttar Pradesh in partial
fulfilment requirement for the award of the degree of B.A.L.L.B (Hons.) is a record
of bonafide project work carried out by me under the guidance of Dr. Manish Singh.
His guidance and advice carried me through all the stages of writing and completing
this project work. I further declare that the work reported in this project has not been
submitted, and will not be submitted either in part or in full, for the award of any
other degree or diploma in this institute or any another university.

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 Dr. Ram Manohar Lohiya National Law University, Lucknow
Sachika Vij – National Law University, Lucknow Project on “Property Laws for Unborn
Persons: Exploring Transfers to Non-Existent Beneficiaries”

“PROPERTY LAWS FOR UNBORN PERSONS: EXPLORING

TRANSFERS TO NON-EXISTENT BENEFICIARIES”

Keywords:- “Unborn Persons, Transfer, Property, Perpetuity, Interest.”

I. INTRODUCTION

A transfer of property cannot be made for the benefit of an unborn person as the definition in S. 5
of the TP Act is limited to living persons. However, such a transfer is possible if the following
conditions under S. 13 of the TP Act are complied with:
1. The interest of an unborn person must be preceded by a prior interest.
2. The unborn person must be in existence when the prior interest comes to an end.
3. The interest created in favour of the unborn person must be the whole of the remaining interest
of the transferor that is, a life interest cannot be created in favour of the unborn person.1
This can be substantiated by way of an Illustration.
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
absolutely. This is a valid gift for the benefit of an unborn person satisfying all three conditions as
listen above.
First of all, a prior life interest was created in A and his wife. Secondly by adding the words “after
the death of the survivor” it has been made sure that the unborn person is in existence by the time
the prior interest ceases. And lastly, the eldest son’s interest is the whole of the remaining interest
in the property as the transfer is absolute.

1
Sarathi. Vepa P. Law of Transfer Of Property. Eastern Book Company. Reprinted 2010. Lucknow. Page no 54.

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 II. JUDICIAL INTERPRETATION

2.3.1 AN INTEREST CAN BE CREATED FOR THE BENEFIT OF AN UNBORN PERSON WHO ACQUIRES
INTEREST UPON HIS BIRTH.

This was held in the case:

F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat2
FACTS
The donor who was issueless (Mahadevi) purchased all properties from her brother (Ganapathi)
on account of his helpless conditions (in the year 1936). A gift deed (of ancestral properties) was
executed in 1947 and when the gift was made, the parents of the parties were alive. The appellant
was minor & the respondent was not even born. According to the appellant, a certain property
under the gift deed was given to him absolutely and on true construction of the gift deed, the
respondent, has no right to claim partition of the said property. It was also contended that creation
of interest in favour of the respondent who was not born when the gift deed was executed was
invalid in view of Section 13 of the Transfer of Property Act, 1882. Both these assertions were
negated by the Trial Court and High Court. The appellant then approached the Supreme Court.
ISSUES
1. Construction of gift deed (1947)
2. Validity of creation of interest in the property in question in favour of respondent in view of
Section 13 of the Act.
REASONING
On referring to the gift deed, the Court stated that the words "this property will be your and nobody
else shall have right and title over it" cannot be read in isolation as these words are immediately
followed by the words that "in case any male children are born to your parents, you shall enjoy the
described immovable property and house with those male children as joint holder". When the
donor stated that 'nobody else shall have right or title over it', she was only reiterating what was
stated earlier that she had decided to gift the immovable property and house to the appellant since
at that time, the appellant was the only male child of the brother of the donor. There were no such
qualifying words in the gift deed to show an intention of the donor to exclude the unborn male
children from the title of the property in question. The document read as a whole clearly showed

2
AIR 2004 SC 2665.

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the intention of the donor to ensure that all the properties gifted should remain in the family of her
brother, being their ancestral properties and would be enjoyed by the appellant and other male
children as may be born, as joint holders.
JUDGMENT
And hence it was held by the Court that there is no ban on the transfer of interest in favour of an
unborn person. Section 20 permits an interest being created for the benefit of an unborn person
who acquires interest upon his birth. No provision was brought to the notice of the court which
stipulated that full interest in a property cannot be created in favour of unborn person. In the present
case, the donor gifted the property in favour of the appellant, then living, and also stipulated that
if other male children are later born to her brother they shall be joint holders with the appellant.
Such a stipulation is not hit by Section 13 of the Act. Creation of such a right is permissible under
Section 20. The respondent, thus, became entitled to the property on his birth.
2.3.2 VALIDITY OF TRANSFER WITH REGARD TO THE PERSONS WHO ARE IN EXISTENCE AT THE
TIME OF THE TESTATOR'S DEATH AND WITH REGARD TO THOSE WHO ARE NOT IN EXISTENCE .

Important case that can be considered here is:

Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer3
FACTS
Raja Bisheshwar Bux Singh, the father of the plaintiff and of the defendant's husband, was a
taluqdar of Oudh, and his estate known as Gangwal Estate, to which he succeeded in 1925 is one
to which the Oudh Estates Act (I of 1869) applies. Shortly before his death Raja Bisheshwar
executed a will dated 11th September, 1929, by which five properties, described in lists A and B
(attached to the plaint) were bequeathed to Dhuj Singh, the younger son, by way of making
provisions for the maintenance of the said son and his heirs. Raja Bisheshwar died in 1930, leaving
behind Bajrang Bahadur, who is the plaintiff, while the younger, whose name was Dhuj Singh,
has died since then, being survived by his widow Bakhtraj Kuer, who is the defendant. It was
averred by the plaintiff that Dhuj Singh had only a life interest in the properties bequeathed to him
by Bisheshwar and on the termination of his life interest, the property vested in the plaintiff as the
heir of the late Raja. It was also put forward was that even if Dhuj Singh had an absolute interest
created in his favour under the terms of his father's will, the plaintiff was entitled to succeed to the
taluqdari properties at any rate, under the provision of section 14 (b) read with section 22 (5) of

3
AIR 1953 SC 7.

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the Oudh Estates Act. The defendant resisted the plaintiff's claim primarily on the ground that
Bisheshwar Bux Singh, as the full owner of the properties, was competent to dispose of them in
any way he liked and under his will it was the defendant and not the plaintiff in whom the
properties vested after the death of Dhuj Singh. The contention, in substance, was that the will
created a life estate for Dhuj Singh followed by a devise in favour of the widow as his personal
heir.
ISSUES
1. Whether Dhuj Singh got an absolute estate or an estate for life in the properties given to him by
the will of Raja Bisheshwar.
2. If the interest was one which was to inure only for the period of his life, then whether any
subsequent interest was validly created by the will in favour of the widow.
REASONING
The answers to both the questions were given on a proper construction of the will left by Raja
Bisheshwar. The will was described by the Court as an inartistic document with no pretension to
any precision of language, and was drawn up by a man who was not acquainted with legal
phraseology. The language and tenor of the document made it very clear that the dominant
intention of the testator was to make provision not for Dhuj Singh alone but for the benefit of his
heirs and successors, as the expression "generation after generation" has been used in the will. The
expression "heirs" in this context meant and refered to the personal heirs of Dhuj Singh determined
according to the general law of inheritance and not the successors to the estate under the special
provisions of the Oudh Estates Acta as the wil was expressly intended to protect the personal heirs
of Dhuj Singh from eviction from the properties in question by the future holders of the estate.
The main aim of the testator was that the properties should remain intact till the line of Dhuj Singh
was exhausted and each successor was to enjoy and hold the properties without any power of
alienation and hence what the testator wanted was to create a series of life estates one after another,
the ultimate reversion being given to the parent estate when there was a complete failure of heirs.
This, it was contended by the appellant is not permissible in law and he relied on the case of Tagore
v. Tagore.
JUDGMENT
The Court held that though no interest could be created in favour of an unborn person but when
the gift was made to a class or series of persons, some of whom are in existence and some are not,

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it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time
of the testator's death and is invalid as to the rest (S. 15 of the TP Act). The widow, who is the
next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her
favour should certainly take effect. She thus acquired under the will an interest in the suit
properties after the death of her husband, commensurate with the period of her own natural life
and the plaintiff consequently had no present right to possession. The appeal was dismissed with
costs.
2.3.3 THE INVALIDITY OF THE TRANSFER MUST BE JUDGED WITH REFERENCE TO THE ORIGINAL
SETTLEMENT DEED BUT NOT BY THE VOLUNTARY ACT OF THE DONEES UNDER THE DEED ITSELF.

Javvadi Venkata Satyanarayana v.Pyboyina Manikyan and Ors.4

FACTS
P. Muthaiah had a son Ganga Raju and executed a settlement deed in respect of the suit property
conferring life estate on his son and after his death to the sons of Ganga Raju to be borne
absolutely. Ganga Raju in turn executed a relinquishment deed of his life estate in favour of his
father Muthaiah. Ganga Raju died in 1971 leaving behind three sons viz., rama Rao, lakshmanarao
and Muthaiah. The first son Ramarao was born in the year 1942. The plaintiff is the auction
purchaser of one-third share. The plaintiff also purchased the share of lakshmanarao from his wife
Raghavamma under a registered sale deed (in 1972). The first defendant is the son of Muthaiah
who resisted the suit. The other defendants are in possession of the property. The first defendant
contended that Ganga Raju executed a relinquishment deed long before the birth of his sons and
hence the gift in favour of the unborn sons has failed.
ISSUES
1. Whether the present suit is manitaniable.
2. Whether interpretation of Section 16 of the TP Act used by the lower court is correct or not.
REASONING
Three conditions must be present before Section 16 is attracted:
(1) There should be an interest created for the benefit of a person or class of persons which must
fail by reason of the rules contained in Sections 13 & 14.
(2) There should be another interest created in the same transaction.
(3) The other interest must intend to take effect after or upon failure of the prior interest.

4
AIR 1983 AP 139.

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Section 13 requires two conditions to be fulfilled:
(1) the transfer inter vivos cannot be made directly to an unborn person but must be preceded by a
prior disposition in favour of a living person.
(2) the interest given to the unborn person is the whole of hte interest remaining in the transferor.
Section 14 embodies the rule against perpetuity. So. Section 16 embodies the rule that if any gift
made in favour of unborn persons fails by reason of the rule contained in those two sections, the
subsequent interest created in the same transaction also fails. And hence, in order to attract Section
16 it must be seen whether the three conditions mentioned above are fulfilled or not before the
principle that the gift is void for remoteness as embodied in the said section can be invoked.
Applying these principles to the facts of this case the following results can be arrived. Firstly the
gift of the unborn children has not failed either because of the rules contained in Sections 13 & 14.
Secondly the prior interest created in favour of Ganga Raju is also not invalid. Thirdly a valid
estate created in favour of Ganga Raju was voluntarily transferred in favour of muthaiah and lastly
when there is no failure of prior interest and no question of failure of the subsequent interest arises
as contemplated under Section 16.
JUDGMENT
The invalidity of the transfer must be judged with reference to the original settlement deed but not
by the voluntary Act of the donees under the deed itself. The person who obtained the benefit of
the deed by his own volition cannot defeat the terms of the deed under which he obtained the
interest. The lower courts committed a serious mistake in holding that as Ganga Raju renunciated
his life estate and hence the original estate created in favour of unborn persons has failed. Further
the courts below made a distinction that Ganga Raju made the relinquishment deed before the birth
of children to him but according to the court it has no legal consequence as once the gift to the
unborn person is valid under Section 13, such interest could be defeated by no one and the unborn
person acquires vested interest on his birth. The life estate holder cannot defeat the interests of hte
unborn person by transferring the life estate to a third person. The appeal was allowed and all
decrees and judgments made by the lower courts were set aside. A preliminary decree for partition
was directed to be passed in favour of the plaintiff.

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 III. SECTION 13 AND SECTION 14 OF TP ACT

The rule against perpetuity is based on the general principle that the liberty right of the owner of a
property to alienate or transfer his property at his pleasure, should not be so exercised that it is
detrimental to the property itself. According to Blackstone, by perpetuities, estates are made
incapable of answering those ends of social commerce and providing for the sudden contingencies
of private life for which property was at first established.5 The rule against perpetuity (also known
as the rule against remoteness) prohibits the non-vesting of interests beyond a certain period, which
is not unreasonable. As long as the transferees are living persons, any number of successive estates
cane be created. A transfer may be made to A for life and then to B for life, and then C for life,
and so on, provided A, B & C are all living persons at the date of the transfer. However, if the
ultimate beneficiary is some one not in existence at the date of the transfer, S. 13 (TP Act) requires
that the whole residue of the estate should be transferred to him. If he is not born before the
termination of the last prior estate, the transfer to him fails under this section. If he is born before
the termination of the last prior estate, he takes a vested interest at birth and possession
immediately on the last prior estate. The rule against perpetuity does not require that the vesting
shall take place at the birth of the ultimate beneficiary.6 But rather it prescribes the maximum
period within which a future interest must vest and if the vesting is postponed beyond such
maximum period then the limitation would be void for remoteness.

In Ram Newaz v. Nankoo,7 a person A, executed a sale deed of his land in 1884 in favour of B.
With this deed, he created a life estate in favour of himself, his son and also their unborn
descendants. This was in violation of S. 13, as only absolute interest in the property can be
transferred for the benefit of unborn persons. Secondly, according to the term of the document, the
property was sought to be made inalienable by creation of life estates for the benefit of unlimited
number of generations. This was again in violation of S. 14 (TP Act).

Distinction

5
Sarathi. Vepa P. Law of Transfer Of Property. Eastern Book Company. Reprinted 2010. Lucknow. Page no. 55.
6
DF Mulla. The Transfer of Property Act, 1882. Lexis Nexis Butterworths Wadhwa Nagpur. (ed. Dr. GC Bharuka)
10th Edition 2006. Haryana. Page No. 169.
7
AIR 1926 All 283.

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Under S. 13, the transferor is not permitted to transfer any but an absolute estate i.e. his whole and
entire interest in the property in the favour of an unborn person, when the transfer in favour of him
is to take effect after the determination of the prior interest created by the same transfer. Under
Section 14, the transfer itself, whether of the whole or of a limited interest, cannot be created so
as to last for one or more existing lives plus 18 years. Section 13, hence, enacts in favour of an
absolute transfer after a period and Section 14 enacts against transfers in perpetuity.8 Such transfers
cannot be made by the intervention of trusts.9

IV. SECTION 13 AND SECTION 15 OF TP ACT

Prior to 1929, the rule was that if by the same transfer an interest was created in favour of a class
of persons, with respect to some of which it was void, and for some valid, the interest failed in
respect to all of them. But the law presently, makes the transfer valid and effective for those, for
whom it is capable of taking effect. The relationship between Sections 13 & 15 of the TP Act can
be best understood through the medium of the case Raj Bajrang Bahadur Singh v. Thakurain
Bakhtraj Kuer10, which has already been substantiated in detail under 2.3.2.

V. SECTION 13 AND SECTION 16 OF TP ACT

The underlying principle of Section 16 of TP Act is that if the subsequent interest is to take effect
upon the failure of the prior interest and the prior interest is against the law and so invalid i.e. is in
contravention with Sections 13 & 14 of TP Act, then the subsequent interest would also fail.11 For
instance, A transfers property to B for life and then to B’s sons on their attaining the age of 25
years and that also only for life. The deed further provides, that if B dies without any son, the
property would vest absolutely in C. B & C were living on the date of the execution of the transfer,
but B had no child on the same day. Here, the transfer for the benefit of B’s unborn children was
void as it violated not the rule against perpetuity and also the transfer to unborn children was for

8
Dr. Sir, Gour, H.S. Dr. Sir Hari Singh Gour’s Commentary on The Transfer Of Property Act, 1882. Delhi Law
House. Page No. 241. 12th Edition. 2010. Delhi.
9
Kumara Asima v. Kumara, AIR 1967 Guj. 81.
10
AIR 1953 SC 7.
11
Bhut Nath Mondal v. Kalipada Mondal, AIR 1982 Cal 534.

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life and not absolutely. Thus, the transfer in favour of C that was intended to take effect upon
failure of this prior interest, which has become void, would also fail and cannot take effect.12

In Girish Dutt v. Data Din13 , A made a gift of her property to B, her nephew’s daughter, for life,
and then to B’s male descendants, if she should have any, absolutely; but if she should have no
male descendants then to B’s daughter without power of alienation; but if there were no
descendants of B, male or female, then to her nephew. B died without issue. The gift to unborn
daughters, being of a limited interest and subject to the prior interest created in favour of B, was
invalid under Section 13 of the TP Act and the gift to the nephew, therefore failed under Section
16.

VI. SECTION 13 AND SECTION 20 OF TP ACT

Section 20 has to be read along with Section 13 of the TP Act. It declares that where interest is
validly created for the benefit of an unborn person, it becomes vested in the unborn person upon
his birth, unless a contrary intention appears from the terms of the transfer. Such a contrary
intention must be adduced from the language of the transfer. For instance, the transfer might state
that the unborn person is to take the property on his attaining a particular age. And in accordance
with Section 14, the time of vesting can be only between the time of birth of the child and till he
attains 18 years. In a Mysore decision, where the donor A transferred the property to his daughter’s
son B and by the same transfer he directed that the property was to be enjoyed not only by him but
also by other sons of the daughter who might be born before B attained majority, it was that the
disposition was not hit by Section 13 and as soon as another son was born to A’s daughter, but
before B attained majority, he would become entitled to a moiety of the property under Section 20
and would obtain a vested interest on his birth.14 In another Mysore case15, it has been observed
that the interest created in favour of an unborn person under Section 13 is dissimilar to the interest
under S. 20, which is not controlled by Section 13. However a view contrary to this has been taken

12
Dr. Saxena. Ponnam Pradan. Property Law. Lexis Nexis Butterworths Wadhwa Nagpur. 1st Edition. Third
Reprint. 2010. New Delhi. Page no. 161
13
AIR 1934 Oudh 35.
14
Konahally Vasabthappa v. Konahally Channabasappa, AIR 1962 Mys 98.
15
1985 Ker LJ 161.

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by the Kerela High Court and it has been held that what is not valid under S.13 will not be valid
under Section 20.16

An important case which involves the application of Sections 13, S. 16 & 20 of the TP Act was
decided by the Andhra Pradesh High Court17 where a person A created a life estate in favour of S,
and an absolute interest in favour of the unborn sons of S. Before the birth of the sons, S executed
a ‘relinquishment’ deed with respect to his life interest in favour of his father. It was held that
merely because the relinquishment deed was executed before the birth of the sons of S, the gift in
favour of the unborn sons would not fail. The invalidity of the transfer must be judges with
reference to the original settlement deed and not by the voluntary act of the donees under the deed
itself. The unborn sons of S would acquire a vested interest on their birth under Section 20. No
one could defeat such interest. Further, in this case, there was no possibility of defeating the
interests of the unborn children as violative of the provisions of Section 16.18

VII. CONCLUDING REMARKS

S. 13 of the TP Act, provides for a specific mechanism for transferring property validly for the
benefit of unborn persons:
1. The person intending to transfer the property for the benefit of an unborn person, should first
create a life estate in favour of a living person and after it, absolute interest in favour of the unborn
person.
2. Till the person, in whose favour a life interest is created is alive, he would hold possession of
the property and enjoy its usufruct i.e. enjoy the property.
3. During his lifetime if the person, (who on the day of the creation of the life estate was unborn)
is born, the title of the property will immediately vest in him, but he will get the possession of the
property only on the death of the life holder.
This Section however, cannot be read in isolation and its provisions are given full meaning when
read with S. 14, 15, 16 & 20 of the TP Act.

16
1967 Ker LT 101.
17
JV Satyanarayana v. Pyboyina Manikyan, AIR 1983 AP 139.
18
DF Mulla. The Transfer of Property Act, 1882. Lexis Nexis Butterworths Wadhwa Nagpur. (ed. Dr. GC Bharuka)
10th Edition 2006. Haryana. Page No. 164.

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After conducting thorough research, the researcher has come to the following conclusion as
regards the hypotheses formulated:
• Transfer for the benefit of an unborn person has been provided for under law in a detailed manner
but it is subject to the fulfillment of certain conditions.
• The transferor cannot stipulate any time for the vesting of the property in the beneficiary. He
must take regard of the rule against perpetuity and hence must ensure that the property vests in the
child before or on attaining majority. Vesting the property at an age beyond that would make the
transfer void.
• When a transfer of property is made to a class of persons, some of who are in existence and some
are not, the transfer does not fail in its entirety and is valid as regards those persons who are in
existence but shall be invalid for the rest.

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