An unborn child is a child in the mother's womb.

The term is often seen used in debates over

the personhood of the fetus before birth. It also used in the context of deciding the legal and
moral status of abortions3.

The transfer of property is generally made to a living person but under some circumstances
property can be transferred to an unborn person also.

Transferred to the Unborn allowed by the law. There cannot be a first or direct transfer to an
unborn person but subsequent transfer can be made to an unborn person.

Law provides that when transfer to the Unborn shall not take effect it can be derived that when
transfer to the unborn is valid.

Where on a Transfer of Property an interest therein is created for the benefits of a person not
in existence at the date of the transfer subject to a prior interest created through the same
transfer interest created to assist that person will not become effective unless it passes to the
rest of the transferor's interest on the property.

Transfer for the Benefit

Transfer to Unborn child- There cannot be any direct transfer to an unborn child. An Unborn
child means a child who is not in existence even in Mother's womb. A child in mother's womb
or a children venture as mere Is a competent transferee. The property can be passed on to the
unborn child. But property cannot be transferred to any person who is not even in the Mother's
Womb because such a child is an unborn child. Accordingly Section 5 of this act provided that
Transfer of Property take place only between two living person this means the transfer in must
also be in existence at the date of the transfer there is a valid reason why property cannot be
transferred directly to an Unborn child legally speaking every Transfer of Property in was
transfer of interest when a property is transferred the transfer divest himself off that interest
and waste it immediately in the transferee so if a property is transferred directly to a person
who is not in existence the interest so transferred shall be Diverted or be away from the transfer
but it would have to remain in void and wait for the transfer it to come into existence in home
it could best such situation would be against the very concept of the interest accordingly we
are a mix a gift of his property to the eldest child who is unmarried the gift is void.

Transfer for benefit of unborn person

The transfer of property to an unborn cannot take place directly but transfer can be made for
benefit of unborn Person.

Section 13 provides that property can be transfer for the benefit of an unborn person subject to
following conditions:

(1) No direct Transfer

(2) Transfer for the Unborn must be appreciated by our life interest in favour of a Person in
existence at the date of the transfer, and,

(3) Only absolute interest may be transferred in favour of the Unborn.

No Direct Transfer

Transfers cannot be made directly to an unborn person. Such transfers can only be made
through a trust system. It is a basic principle of real estate law that every property will have an
owner. Similarly, if the transfer of property is made to an unborn person, it will result in a
condition in which the property will remain vacant from the date of transfer of the property
until the date of existence of the unborn person.

Prior Life Interest

The transfer for the benefit of an Unborn must be preceded by a life interest in favour of a
living person in existence at the date of the transfer where a person intends to transfer certain
properties for the benefit of an Unborn person such an unborn is the ultimate beneficiary but
since such unborn or ultimate beneficiary is not in existence at the date of the transfer property
cannot be given to him directly there must be a prior life interest in favour of living person so
that such living person hold the property during his life and till that time the unborn would
come into Existence.

Only Absolute Interest May Be Given

Absolute interest in the property may be transferred in favour of an unborn person Limited all
life is this cannot be given to an unborn person. Transfer of Property for life of an unborn
person cannot take effect as it is void. Section 13 enacts that interest given to the Unborn person
must be the whole of the remaining interest of the transfer in the property. When a property is
transferred in favour of an unborn the transferor first gives the life interest to an existing person.
After transferring this he retains with him the remaining interest of the property. This remaining
interest with the transferor must be given to the unborn so that after the termination of prior
life interest the Unborn gets the whole absolute interest in the property.

In other words the whole of remaining interest is the entire interest of the transferor less prior
life interest carved out of the ownership.

The property transfer to the unborn and the prior life interest must replicate the whole interest
of the transferor in the property which is transferred to him if there is any other limitation which
degrades or cuts short and completeness of the grant in favour of the Unborn the transfer is
void. Thus a life interest or other Limited interest cannot be given to the Unborn.

In case Girijesh Dutt v. Data Din

The fact spare as under A made a gift of her properties to her nephew's 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 her nephew B died issueless. It was held by the gift for life to B was valid as B
was a living person at the date of the transfer. The gift in favour of B's daughter was void under
section 13 of the Transfer of Property Act because it was a gift of only limited interest; she had
not been given absolute interest further since this transfer was invalid the subsequent transfer
depending on it also failed .

Illustrations
To understand more clearly, let’s see these following illustration and try to answer in which
cases, there can be a transfer of property.

1. A father (X) transfers his property to his unborn child (Y)

2. A father (X) transfers his property to his child(Y) for life, thereafter to his
unborn grandchild (Z) for life and finally to his unborn great grandchild (XY)
absolutely.
Introduction
Section 14 of Transfer of Property Act, 1882 deals with the Rule against Perpetuity, also known
as Rule against remoteness of vesting. Perpetuity means “indefinite period” which means this
rule is against the transfer which makes a property inalienable for an indefinite period. Rule
against perpetuity is the rule against the creation of a future remote interest.
Section 14 of TPA – “No transfer of property can operate to create an interest which is to take
effect after the life-time of one or more persons living at the date of such transfer, and the
minority of some person who shall be in existence at the expiration of that period, and to whom,
if he attains full age, the interest created is to belong.”

Section 14 clearly says that in a transfer of property, vesting of interest cannot be deferred on
the far side the lifetime of the last previous interest holder and also the minority of the ultimate
beneficiary. It makes a transfer of property inoperable wherever condition is arranged down
for vesting of interest after the life of the last preceding interest holder’s and beyond the
minority of the ultimate beneficiary.

In India, section 14 of TPA provides that vesting can be deferred up to life or lives of the last
person plus the minority of the ultimate beneficiary. Minority in India ends at the age of 18
years. After the existing life or lives, vesting cannot be deferred in India beyond 18 years in
any circumstances.

Under English Law, vesting of interest could also be deferred up to life or lives of last person
plus a period of 21 years regardless of the age of minority of final beneficiary and a transfer
shall not be void even though vesting has been deferred beyond 21 years however it shall go
effect as if the age of 21 had been substituted for the requirement within the instrument, that
may be any fixed period longer than 21 years.

How Perpetuity may arise?

In 2 ways Perpetuity may arise –
• It may arise by taking away from the transferee his power of alienation (this
condition has been void under section 10 of the Transfer of Property Act).
• Secondly, it may arise by creating future remote interest (which has been
prohibited under section 14 of the Transfer of Property Act).

Key Ingredients of Rule of Perpetuity –

• There must be a transfer of property.
 • The transfer should be to create an interest in the favour of an unborn person.
• The vesting of the interest in the favour of an unborn must be preceded by life
or limited interest of living person i.e. there must be a prior interest holder.
• The unborn person must be in existence at the expiration of the interest of the
living person; either in mother’s womb or born).

Period of Perpetuity
The period of perpetuity starts from the date when transferor transfers the property, then it
covers the lifetime of the last prior interest holder’s, then the gestation period of the unborn
beneficiary, then 18 years. So, the perpetuity period is –
Starts from the date when transferor transfers the property + lifetime of the last prior interest
holder’s + the gestation period of unborn beneficiary + 18 years (Age of majority of persons
domiciled in India under section 13 of the Majority Act, 1875)
The period of gestation means the period during which the child remains in mother’s womb
after being conceived i.e. normally 9 months or 280 days plus the minority of the ultimate
beneficiary.
This period is called the perpetuity period and the vesting of the property in the transferee
cannot be postponed beyond this period.

Minority in Rule of Perpetuity

Minority in India terminates at the age of 18 years or when the minor is under the supervision
of court at the age of 21 years. But in the case of Saundara Rajan vs. Natarajan, AIR 1925 P.C.
244, the privy council held that since at the date of the transferor it is not known whether or
not a guardian would be appointed by court for the minor in future, for purposes of section 14,
the normal period of minority would be of 18 years. So, the vesting of the interest in the
property can be postponed only up to the life of the previous interest holder and the minority
i.e. 18 years of the beneficiary.

Exceptions to Rule of Perpetuity

• Section 18 of Transfer of Property Act – Section 18 of TPA provides protection
from rule against perpetuity when the transfer is in favor of public i.e. religion,
knowledge, healthcare, safety or any other object beneficial to mankind.
In Nafar Chandra vs. Kailash, (1921) 25 CWN 201, the shebiats of a temaple agreed to appoint
the family of pujaris from generation to generation and make provisions for expenses and
remuneration of the office. The court held that this agreement is valid and not affected by the
rule against perpetuity.

• Personal Agreements – The rule of perpetuity does not apply to the personal
agreements that do not create interest in property.

• Contract of pre-emption – This rule does not applies to the contract where there
is an option of purchasing a land by family members.
 • Vested Interests – This rule does not affect the vested interest as for this an
interest has to be existed.

• Renewal of lease agreements – This rule also does not affect the agreements of
renewal of lease.
In R. Kempraj vs. M/S Burton son7&Co., (1970) 2 SCR 140, the court held that the rule of
perpetuity does not apply to contracts for perpetual renewal of leases.

• Covenant for redemption of property under mortgage.

• Charge created over property, as this does not amount to transfer of interest.

In the leading case Ram Baran Prasad vs. Ram Mohit Hazra,(1967) 1 SCR 2931, the Supreme
Court held that the Rule against the Perpetuity does not apply to contracts, which do not create
rights of property.
1)Anand Rao Vinayak V Administrator General of Bombay
In this case, a gift was declared void in light of Section 14 because the given clause in that gift
was 21 years which is clearly violation of this rule.

2)Abdul Fata Mahomed V Rasamaya

The privy council held that, a gift to an unborn child or generations is forbidden by Muslim
law or Mohammedan law except in the case of Waqf.