Transfer for

the benefits of
an unborn
child
Adnan)
(sadia
Abstract
This piece of writing discusses the transfer of property for the benefits of an unborn child. It
discusses the legal framework involved, the restrictions placed on such transfers under the
transfer of property act, the status of an unborn child and the pre-requisites for a valid transfer
of property to an unborn child and then also goes on to present a comparative analysis of the
differences in such practices for Hindus and Muslims, and Indians and Britishers.

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Table of Contents
UNBORN CHILD..................................................................................................................... 4
TRANSFER OF PROPERTY TO AN – UNBORN CHILD.................................................... 4
PRE-REOUISITES FOR A VALID TRANSFER OF PROPERTY TO AN UNBORN
PERSON.................................................................................................................................... 5
Creation of a Prior Life Interest.................................................................................................5
No Life Interest for an Unborn Person...................................................................................... 6
Case Laws.................................................................................................................................. 8
Applicability of Sopher and Ardeshir rulings in India...............................................................9
RULES AGAINST PERPETUITY........................................................................................... 9
Following conditions must be satisfied to attract Section 14:..............................................10
EXTENT OF PERPETUITY PERIOD................................................................................... 10
Position in India................................................................................................................... 10
English Law..........................................................................................................................10
DIFFERENCE BETWEEN INDIAN AND ENGLISH LAW............................................ 10
RULE UNDER HINDU LAW AND MUSLIM LAW............................................................11
CONCLUSION........................................................................................................................11
Bibliography............................................................................................................................ 12

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UNBORN CHILD
―A person not in existence has a specific reference to one who may be born in the future
but does not have a current existence‖. Even though a child in womb is literally not a
1
person in existence, but has been so treated under English Law.

TRANSFER OF PROPERTY TO AN – UNBORN CHILD

Section 13 of Transfer of property Act read as follows:

“Where, on a transfer of property, an interest therein is created for the benefit of a person
not in existence at the date of 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
2
extends to the whole of the remaining interest of the transfer in the property”.

Section-13 gives effect to the general rule that a transfer can be effected only between living
persons. There cannot be a direct transfer to a person who is not in existence or is unborn.
This is the reason why section 13 uses the expression transfer ‗for the benefit of‘ and not
transfer ‗to‘ unborn person. A child in the mother‘s womb is considered to be competent
transferee. Therefore, the property can be transferred to a child in mother‘s womb because
the child exists at that time but not to an unborn person who does not even exist in mother‘s
womb. Every transfer of property involves transfer of interest. As soon as the property is
transferred, the transferor is divested of that interest and the interest is vested in the
transferee. For vesting of interest, therefore, it is necessary that the transferee must be in
3
existence. Otherwise the interest will remain in abeyance till the transferee comes into
existence. This is against the very concept of an interest. Section 13 provides that the property
cannot transfer directly to an unborn person but it can be transferred for the benefit of an

1 Shivani Gupta, Transfer of Property to an Unborn Child, Academike. 2 (2015)

2 Sardar Muhammad Iqbal khan Mokal, The transfer of property act, p.25.
3 Prem Rajani, A. B. (2015). A Brief Write-Up On Transfer Of Property For The Benefit Of Unborn
Person And Rule Against Perpetuity. mondaq, 2-4.

4
 4
unborn person. For transfer of property for the benefit of unborn person two conditions are
required to be fulfilled:

1) Prior life interest must be created in favour of a person in existence at the date of
transfer, and

2) Absolute interest must be transferred in favour of unborn person.

PRE-REOUISITES FOR A VALID TRANSFER OF PROPERTY TO AN

UNBORN PERSON

Section 13 provides a mechanism for a specific mechanism for transferring property validly
for the benefit of unborn persons. The procedure as follows:

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, an absolute estate in favour of
the unborn person.

2) Till the person, in whose favour a life interest is created is alive, he would hold
the possession of the property, enjoy its usufruct i.e. enjoyment the property.

3) During his lifetime if the person, (who on the day of creation of the life estate was
unborn) is born, the title of the property would immediately vest in him, but he will get
5
the possession of the property only on the death of the life holder.

Creation of a Prior Life Interest

As far as the creation of a prior interest is concerned, first, the property is given for life to a
living person. It is not necessary that life interest should be created in favour of only one
6
living person. The transfer is competent to create successive life interests in favour of

4 Ibid.
5 Ruchit Parikh, A Brief Write-Up On Transfer Of Property For The Benefit Of Unborn Person, Mondaq. 3
(2015).
6 Prem Rajani, A. B. (2015). A Brief Write-Up On Transfer Of Property For The Benefit Of Unborn
Person And Rule Against Perpetuity. mondaq, 2-4.

5
several living persons at the same time. For instance, A transfer property to B for life, and
after him, to C, and then to D again for their lives and then absolutely to B‘s unborn child
UB.

A ———————————B (life interest)

———————————-C (life interest)

———————————-D (life interest)

———————————-UB (Absolute interest)

On B‘s death, the possession would be taken by C and on C‘s death, by D. On D‘s death, the
possession would go to B‘s child, who should have come in existence by this time. If he not
7
there, the property would revert back to A, if he is alive, else to his hires.

No Life Interest for an Unborn Person

As far as the unborn is concerned, no life interest can be created for the benefit of an unborn
person. Section 13, specifically prohibits that, by the use of the expression, ‗the interest
created for the benefit of such person‘ shall not take effect, unless it extends to the whole of
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the remaining interest of the transferor in the property. It means that the transfer must
convey to the unborn person, whatever interest he had in the property, without retaining
anything with him. Thus, no limited estate can be conferred for the benefit of the unborn
9
person. If limited interest in the property is settled for him, the same would be void.

For instance, A creates a life estate in favour of his friends B, and a life estate for the benefit
of B‘s unborn first child UB1 and then absolutely to B‘s second child UB2.

A ———————– B (Life interest)

———————– UB1 (Life interest)

———————– UB2 (Absolute interest)

7 TRANSFER OF PROPERTY ACT – UNBORN CHILD, https://kanwarn.wordpress.com/2013/06/03/transfer-

of-property-act-unborn-child.
8 Gupta, S. (2017). Can Property Be Transferred To An Unborn Child? Makaani India.
9 Ibid.

6
The above example is of limited interest in the property for the benefit of an unborn person
and would therefore be void and incapable of taking effect in law. After the death of B, here,
the property would revert back to A or his hires as the case may be, as even though the
transfer for the benefit of UB2 appears to be proper, as it is dependent on a void transfer that
cannot take effect in law; a transfer subsequent to, or dependent on a void transfer can also
10
not take effect.

Thus, where a father gave a life interest in his properties to his son and then
to his unborn child absolutely, it was held that the settlement was valid. But where the
interest in favour of the unborn child was a life interest the settlement would be void, and a
subsequent interest would also fail. Similarly, where there is possibility of the interest in
favour of the unborn child being defeated either by a contingency or by a clause of
defeasance, it would not be a bequest of the whole interest, and would be therefore be
11
void.

In the example cited above, suppose UB1 dies before B and UB2 is alive when the life estate
in favour of B comes to an end. Even then, the transfer of the benefit of UB2 will not take
effect as the validity of the transfer has to be assessed from the language of the document and
not with respect to probable or actual events that may take place in future. It is the substance
of the transfer that will determine whether it is permissible under the law or not and not how
the situation may emerge in future.

In Girish Dutt V Data Din, A made a gift of her property to B for her life and then to her
sons absolute. B had no child on the date of execution of the gift. The deed further provided
that in case B had only daughters, then the property would go to such daughters but only for
their life. In case B had no child then after the death of B, the property was to go absolutely
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to X.

The deed on paper provided a life estate in favour of B‘s unborn daughters: which is contrary
to the rule of sec.13. However, B died without any child, and X claimed the property under
the gift deed. The court held that where a transfer in favour of a person or his benefit is void
under sec.13, any transfer contained in the same deed and intended to take effect or upon

10 Shivani Gupta, Transfer of Property to an Unborn Child, Academike. 2 (2015).

11 Ibid.
12 TRANSFER OF PROPERTY ACT – UNBORN CHILD,
https://kanwarn.wordpress.com/2013/06/03/transfer-of-property-act-unborn-child.

7
failure of such prior transfer is also void. In determining whether the transfer is in violation of
sec.13, regard has to be made with respect to the contents of the deed and not what happened
actually. Here as the transfer stipulated in the contract that was void, the transfer in favour of
13
X also became void. Hence, X‘s claim was defeated.

Case Laws


In the case of Sopher v Administrator General of Bengal a testator directed that his
property was to be divided after the 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
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grand-children were to be absolutely entitled to the property. The bequest to the
grand-children was held to be void by Privy Council as it was hit by sec.113 of the
Indian Succession Act which corresponds to sec.13 of Transfer of property Act. Their
Lordships of the Privy Council observed that: ― If under a bequest in the
circumstances mentioned in sec.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
15
bequeathed.

In Ardeshir V Duda Bhoy’s case D was a settler who made a settlement. According to the
terms of settlement, D was to get during 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 son‘s of each absolutely. If A and R were each to pre-deceased D without
male issue, the trust were to determine and the trust property were to the settler
absolutely. The settler 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 not born either at the date of

13
THE TRANSFER OF PROPERTY ACT, 1882, http://bdlaws.minlaw.gov.bd/sections_detail.php?
id=48&sections_id=25425.
14 Sopher v Administrator General of Bengal,
http://bdlaws:minlaw.gov.bd/sec/caselaws.unborn.child.property.
15 Shivani Gupta, Transfer of Property to an Unborn Child, Academike. 2 (2015).

8
 settlement or his death did not take any vested interest and the gift to him was invalid.
16
A‘s son who was alive at these dates did not also take a vested interest.

Applicability of Sopher and Ardeshir rulings in India

The decision in Sopher’s case and Ardeshir’s case were applied by Bombay High Court in
Framroz Dadabhoy v Tahmina, in this case, bai Tahmina settled a certain sum upon trust in
favor of herself for life and after her death and subject to the power of appointment by codicil
or Will among her issues 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
being daughter‘s, in equal sums. It was held by their 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 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
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vesting.

RULES AGAINST PERPETUITY

Perpetuity means an uncertain period or time or indefinite period. There are people who
want to retain their property in their own families from generations to generations. This will
be a loss to the society because it will be deprived of any benefit arising out of that property.
Free and frequent circulation is important and the policy of the law is to prevent the creation
18
of such perpetuity.

Origin: Perpetuity may arise in two ways- (a) By taking away the power of alienation from
the transferor (b) By creating a remote interest in the future property.A condition restraining
the transferee‘s power of alienation is void as per S.1O of the Act. And a disposition to
create a future remote interest is prohibited under S.14 of the Act.

Object: As discussed earlier, it is important to ensure free and active circulation of property
both for trade and commerce as well as for the betterment of the property that ultimately is

16 The law studies. Retrieved from http://thelawstudies.blogspot.com/2016/08/transfer-of-property-to-

unborn-person.html.
17 Ibid.
18
P. H. Winfield,The University of Toronto Law Journal , Vol. 4, No. 2 (1942) , pp. 278-295.

9
good for the society. Thus, the object of this section is to see that the property is not tied-
19
up and to prevent creation of perpetuity.

The following conditions must be satisfied to attract Section 14:

1. There must be a transfer of property.

2. The transfer should be to create an interest in favour of an unborn person.

3. Interest created must take effect after the lifetime of one or more persons living at
the date of such a transfer and during the minority of the unborn person.

4. The unborn person must be in existence at the expiration of the interest of the living
20
persons.

5. The vesting of the interest in favour of the ultimate beneficiary may be

postponed only up to the life or lives of living persons plus the minority of the
ultimate beneficiary but not beyond that.

EXTENT OF PERPETUITY PERIOD

Position in India – Life or any number of lives in being + period of gestation +

21
minority period of the unborn beneficiary.

22
English Law – Life or lives in being +period of gestation +minority period.

DISTINCTION BETWEEN INDIAN 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.

19 Ibid.
20 P. H. Winfield,The University of Toronto Law Journal , Vol. 4, No. 2 (1942) , pp. 278-296.
21 PH Winfield – U. Toronto LJ, 1941.
22 Ibid.

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 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.

RULE UNDER MUSLIM AND HINDU LAW

Prior to the enactment of the TP Act, the rule under Hindu and Muslim law was that a gift to
a person who was not in existence, was void. The position under Muslim law continues to be
23
the same. However, for Hindus, the rule was modifies by series of enactments to bring it
conformity with sec.13 of the TP Act. Parallel provisions have also been provided under
Indian Succession Act 1925, which permits bequest for the benefit of unborn person. Section
113 of India Succession Act 1925(IS Act), applies to legacies created for the person not in
24
existence and contain a provision almost identical to sec.13 of the TP Act.

CONCLUSION

A child in 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 favour of unborn person.

23 Indian Succession Act 1925.

24 Ibid.

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Bibliography
Gupta, S. (2015). Transfer of Property to an Unborn Child. Academike, 2.

Gupta, S. (2017). Can Property Be Transferred To An Unborn Child? Makaani India.

(n.d.). Indian Succession Act 1925.

Iqbal, M. (2015). The transfer of property act 1882. Lahore: PLD.

Mehta, A. (2010). DNA. Retrieved from http://www.dnaindia.com/speak-up/report-transfer-of-

property-to-an-unborn-person-1056920

Mokal, S. M. (2016). The transfer of property act. Lahore: PLD.

Nugent v. Brooklyn Heights R. Co.

Prem Rajani, A. B. (2015). A Brief Write-Up On Transfer Of Property For The Benefit Of Unborn
Person And Rule Against Perpetuity. mondaq, 2-4.

unborn, T. o. (2016). The law studies. Retrieved from

http://thelawstudies.blogspot.com/2016/08/transfer-of-property-to-unborn-person.html

12