TRANSFER TO UNBORN PERSON TP ACT

1. Transfer for benefit of unborn
person Section 13
Prof. (Dr.) Anand Paliwal
Dean & Chairman
Faculty of Law,
Mohanlal Sukhadia University,
Udaipur (Raj.)

2. Section 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
property.

3. 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, 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.

4. Section 13 is an exception to general scope and extent of
Transfer of Property Act which deals with transfer inter
vivos only. Transfer by a born to unborn is special law laid
down in Section 13.
Section 13 applies only when transferee is not in
existence at the date of transfer.

5. Whole remainder interest (Absolute interest) of the
transferor in the property must be conveyed to unborn
person.

6. Prior estate is condition precedent for such transfers. No
direct transfer to unborn person is allowed. The
mechanism of prior interest being reserved for some one
in existence with a hope that unborn person will come in
existence on or before the expiry of the prior estate or last
of these if many in that property.

7. A
Transferor
Creation
of Prior
Interest
B
Un born
Person
Absolute
Interest
No
Further
Transfer

8. Sections 13 to 18 place restrictions on the power of tying
up property by a transaction inter vivos similar to those
imposed by Sections 113 to 117 of Indian Succession Act,
1925 in case of Wills. Section 113 of Indian Succession Act
deals with Will (wasiyat) whereas Section 13 of T.P. Act
deals with private transfers other than a Will. Provision are
identical in both Acts. The illustrations given in Section 113
of Indian Succession Act are useful to understand Section
13 of T.P. Act as well.

9. Section 137 T.P. Act corresponds to Section 113, Indian
Succession Act, 1925 which runs as follows :
"113. Bequest to person not in existence at testator's
death subject to prior bequest.-Where a bequest is made
to a person not in existence at the time of the testator's
death, subject to a prior bequest contained in the will, the
later bequest shall be void, unless it comprises the whole
of the remaining interest of the testator in the thing
bequeathed.

10. A person who is not in existence can neither be a
transferee of property, be a beneficiary under a trust until
he comes into existence. There can, therefore, be no
immediate transfer for property or trust in favour of a
person not in existence.

11. A person who is not in existence can neither be a
transferee of property, be a beneficiary under a trust until
he comes into existence. There can, therefore, be no
immediate transfer for property or trust in favour of a
person not in existence. The principle is recognized by this
Act as well as by the Indian Trusts Act.

12. A person not in existence may be Person in womb or
person not even in womb. A person in womb can be given
property under Section 13. The mechanism given in
Section 13 is; prior estate and absolute estate. If so,
transfer to unborn person can be made indirectly through
this mechanism.

13. Girija Dutt v. Data Din AIR 1934 Oudh 35. 147 I.C. 991 , is a
leading case on Section 13. In this case, A made a gift of her
property to B (daughter of her nephew) and after her, to
her male descendants (sons) if any, absolutely. In case,
there was no male issue to B, then to the B's daughters
without power of alienation. If there are no issues to B
(male or female) then to B.

14. B dies issueless. The question was whether gift to unborn
daughters was valid? Whether gift to B (her nephew) was
valid? The court held; gift to unborn daughters failed under
Section 13; (i) No prior estate and (ii) no absolute transfer; gift
to failed under Section 16.

15. Rule in Whitby v. Mitchell, known also as Rule against Double
Possibilities (Now abolished in English Law’) old Rule against
perpetuities
Prior to 1926, contingent remainders whether legal or
equitable, were subject to this rule. This rule may be stated as
follows :

16. "If an interest in the realty is given to an unborn person, any
remainder to his issue is void, together with all subsequent
limitations. Thus, if land was limited to "A (a bachelor) for life,
remainder to his son for life, remainder to A's son's son in fee
simple, the remainder to the grandson would be void under
this rule."

17. This rule was a common law rule applicable to legal estates in
land. The rule against perpetuities was a subsequent
development, and as it overlapped the rule against double
possibilities that is : Whitby v. Mitchell rule, the latter rule
(Whitby's rule) has now been abolished by Section 161 of the
Law of Property Act, 1925 and transfer to unborn Persons are
now governed by rule against perpetuity even in English law.

18. Raja Bajrang Bahadur Singh v. Thakurain Bakhtaraj Kuer
(AIR 1952 SC 7).
"It is quite true that no interest could be created in favour of an
unborn person but when the gift is made to a class or a series
of persons, some of whom are in existence and some are not, 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.

19. Hindu Law - According to Hindu Law, a gift or a bequest in
favour of an unborn person is void. This rule has been
modified by statute and now, the omission of the word
'Hindu' in Section 2 of the Act makes this section and other
sections in the second chapter directly applicable to
Hindus.

20. Muhammedan law – A gift to a person not in existence on
the date of transfer is void except in the case of waqf.