This article has been written by a Law student of 5th semester, Amisha Gupta from George School of Law (Calcutta University).
Transfer for the benefit of unborn person
As stated in Section 13 of Transfer of Property Act 1882, 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 property.
Illustrations :
1) A transfer 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 the 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.
2) A transfer his house to X for life and thereafter to U.B who is an unborn son of A. The transfer of house in favour of U.B is valid. Here since U.B is not in existence at the date of the transfer, A could not transfer the house directly to him. So, A had to make a direct transfer of life interest in favour of X who is a living person at the date of the transfer. After the death of X the interest of the house shall pass on to U.B who is the ultimate beneficiary.
Transfer to Unborn Person :
A a person who is not in existence even in the mother's womb. A child in mother's womb or a child (en ventre sa mere) is a competent transferee. Property can be transferred to a child in mother's womb. But, property cannot be transferred to any person who is not even in the mother's womb because such person in is an unborn person.
Under pure Hindu law, a gift or bequest in favour of an unborn was void. But now, since Transfer of Property Act is applicable to Hindus, the transfer in favour of an unborn person is valid if it is made subject to the provision of section 13 of the Transfer of Property Act.
Since Section 2 of the Transfer of Property Act provides that "nothing shall be deemed to effect any rule of the Mohammedan law" , Section 13 is not applicable to transfer made by Muslims. However, under Muslim law to a gift in favour of a person not in existence has been held void.
Illustrations :
1) A transfer his property to X for life who is unmarried and then to the eldest child of X absolutely. The transfer in favour of eldest child of X is valid.
2) A transfer property of which he is the owner to B 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. Here, the successive life interest in favour of B and his intended wife is a valid transfer. But, the eldest son of the intended marriage who is unborn, has been given the property only for life and not an absolute interest. Therefore, the transfer in his favour is void and does not take effect.
Essential elements :
(i) There should be a transfer of property to an unborn person.
(ii) Interest of property created for the benefit of a person who is not in existence, at the time of transfer.
(iii) Property cannot be transfer directly.
(iv) There must be a prior life interest in favour of a living person at the time of transfer, such living person holds the property during his life untill the unborn come into existence.
(v) Only absolute interest may be transferred in favour of the unborn, without any limitations or conditions.
(vi) Unborn person must come into existence before the death of the person holding property for life. If the unborn person comes into existence after the death of the last living person, the property is to revert back to the transferor or his heirs.
Case : Girjesh Dutt v. Data Din [ AIR 1934 Oudh 35 ]
The fact where is under. A made a gift of her properties to her nephews daughter B for life and then absolutely to B's male descendants, if she should have any. But, in the absence of any male child of B, to B's daughter without power of alienation and, if B has no descendants male or female then to 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 date of transfer. But gift in favour of B's daughter was void under Section 13 of Transfer of Property 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. Section 16 of the Transfer of Property Act which provides that if prior interest created under Section 13 fails, the subsequent interest depending on it also fails.
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Reference :
Dr R.K.Sinha's - The Transfer of Property Act, Central Law Agency, twentieth edition : 2019
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