ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW

‘‘TRANSFER OF PROPERTY”
TUTORIAL ASSIGNMENT

TOPIC: SECTION -13 TRANSFER FOR BENEFIT OF UNBORN PERSON

Submitted By: -

Name : HANZALA AHMED

Faculty No : 17BALLB067

Enrolment No : GI1836

Submitted To: -

Dr. Tabassum Chaudhary Mam

Department of Law

Aligarh Muslim University

1. INTRODUCTION

2. SECTION 13 OF TRANSFER OF PROPERTY ACT,1882

3. ESSENTIAL ELEMENTS OF SECTION 13

4. PRIOR LIFE INTEREST AND ABSOLUTE INTEREST

5. APPLICABILITY OF THE SECTION

6. VIEW OF APEX COURT IN TRANSFER TO UNBORN PERSON

7. CONCLUSION

8. BIBLIOGRAPHY
INTRODUCTION

The Transfer of Property Act, 1882 defines the phrase “transfer of property”. The provision
provides that “transfer of property” means an act by which a living person conveys property,
in present or in future, to one or more other living persons, or to himself and one or more than
one living persons; and “to transfer property” is to perform such act. Thus, bare reading of the
above-mentioned section helps us understand that the conveyance of the property must be
from one living person to another living person. When it is said that both the individual must
be living, it is implied that transfer by will does not come within the scope of section 5 as
such transfers come into effect only after the death of the person who is executing the will.
However, an exception to this section is section 13 which facilitates the transfer of
immovable property in favour of an unborn person.
The provisions of Transfer of Property Act, 1882 in general do not allow the transfer of
property directly to an unborn person. Section 13 is one of the group of sections which refer
to interest created for the benefit of person not existing at the date of transfer.

PROVISION OF SECTION 13 UNDER TRANSFER OF PROPERTY

Section 13 of the Transfer of Property Act, 1882 provides that when for the transfer of
property, an interest therein is created for the benefit of an unborn person at the date of the
transfer, a prior interest is to be created in respect of the same transfer and 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 person transferring the property in the property to be transferred.

Thus, in order to transfer a property for the benefit of an unborn person on the date of the
transfer, it is imperative that the property must first be transferred by the mechanism of trusts
in favour of some person living other than the inborn person on the date of transfer. In simpler
terms, it can be said that the immovable property must vest in some living person between the
date of the transfer and the coming into existence of the unborn person as the property cannot
be transferred directly in favour of an unborn person.

In other words, it can be said that the interest of the unborn person must in all cases be preceded
by a prior interest. Moreover, when an interest is created in favour of an unborn person, such
interest shall take effect only if it extends to the whole of the remaining interest of the person
transferring the property in the property, thereby making it impossible to confer an estate for
life on an unborn person. The interest in favour of the unborn person shall constitute all of the
entire remaining interest in the estate. The underlying principle in section 13 is that a person
disposing of property to another person shall not cause obstruction in the free disposition of
that property in the hands of more than one generation. Section 13 does not apply restrictions
on the successive interest being created in favour of several persons living at the time of
operation of the transfer. What is provided as a restriction under section 13 of the Transfer of
Property Act, 1882, is the grant of interest, limited by time or otherwise, to an unborn person.

Thus, it can be said that if the persons for whose benefit the transfer is to take effect are living,
any number of successive life interests can be created in their favour. However, an important
point to note here is that if the interest is to be created in favour of persons who have yet not
taken birth, then in that case absolute interest must be granted to such unborn persons.

ESSENTIAL ELEMENTS OF SECTION 13

The essential elements of section 13 have been discussed below. They are as follows:

No Direct Transfer

A transfer cannot be directly made to an unborn person. Such a transfer can only be brought
into existence by the mechanism of trusts. It is a cardinal principle of property law that every
property will have an owner. Accordingly, if a transfer of property is made to an unborn person,
it will lead to a scenario wherein the property will remain without an owner from the date of
transfer of property till the date the unborn person comes into existence.

Prior Interest

If the circumstances are such that there is no creation of trust, then in that case the estate must
in some other person between the date of transfer and the date when the unborn person comes
into existence. In simpler words we can say that the interest in favour of an unborn person must
always be preceded by a prior interest created in favour of a living person.
Absolute Interest

The entire property must be transferred to the unborn person. The transfer to an unborn person
must be absolute and there should be no further transfer from him to any other person. An
interest which remains only for the lifetime cannot be conferred on an unborn person. Under
the English law, an unborn person can be conferred an estate only for his lifetime. This concept
of English law, however, is subject to a restriction known as the rule of double possibilities.
This rule was recognised in the case of Whitby Mitchell. The rule states that life interest to an
unborn person should not be transferred as doing so will give rise to existence of two
possibilities. The first possibility will be the birth of the unborn person to whom the life estate
was to be transferred and the second possibility will be the coming into existence of issues of
that unborn persons. Thus, the transfer of property to an unborn person can be permitted only
if the absolute interest is transferred and not just the life estate.

Illustration

“A” owns a property. He transfers it to “B” in trust for him and his intended wife successively
for their lives. After the death of the survivor, it is to be transferred to the eldest son of the
intended marriage for his life, and after his death, it is to be transferred to 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.

PRIOR LIFE INTEREST AND ABSOLUTE INTEREST: -

Life Interest: - The transfer for the benefit of an unborn person must be preceded by a life
interest in favor of person living person in existence at the date of the transfer. So that such
living person holds the property during his life and till the time the unborn would come in the
existence. After the termination of this life interest the property would pass on ultimately to
the unborn person who, by that time comes into the existence.

Absolute Interest: - Only absolute interest may be transferred in favor of an unborn person.
Limited interest cannot be given to unborn person. sec 13 says that interest given to an
unborn must be the whole of the remaining interest of the transferor in the property. When a
property is transferred in favor of an unborn person the transferor first creates the life interest
and after transferring the property, he retains with him the remaining interest of the property.
After termination of the life interest the unborn gets the absolute interest in that property.

APPLICABILITY OF SECTION 13 OF TPA

Hindu Law and Muslim Law

Under pure Hindu law, a gift or bequest in favor of an unborn was void. But now, since
Transfer of Property Act is applicable to Hindus, the transfer in favor of an unborn person is
valid if it is made subject to the provisions of Section 13 of the Act.

Since Section 2 of the Transfer of Property Act provides that “nothing shall be deemed to
affect any rule of Mohammedan law”, Section 13 is not applicable to transfers made by
Muslims. However, under Muslim law to a gift in favor of a person not in existence has been
held void.

Indian Succession Act, 1925

Section 13 is almost identical with section 113, Indian Succession Act, 1925. The difference
between the two sections is that the former relates to transfer inter vivos (between living
persons), while the latter deals with bequest which take effect only on the death of the
testator.

Section 13 controls section 113 and, therefore, both these sections should be read together.

In Sopher v Administrator-General of Bengal, the Privy Council considered the effect of

TO UNBORN PERSON

The Supreme Court of India in various cases from time to time has interpreted the provisions
of the Transfer of Property Act,1882 in respect of the transfer of property done for the benefit
of unborn persons. In the famous case of Girjesh Dutt vs. Datadin, the Apex Court made
important observations. Facts of the case enumerate that “A” made a gift of her properties to
“B”, who was her nephew’s daughter. The gift made by A was made for the life of B and
then to B’s daughter without power of alienation and if there was no heir of B, whether male
or female, then to A’s nephew. B died without having any children. Thus, considering the
facts of the case, the court held that the gift in favour of unborn daughters was invalid
under Section 13 as the gift was a limited interest and also subject to the prior interest in
favour of B.

Another case related to this concept is of Raja Bajrang Bahadur Singh v. Thakurdin
Bhakhtrey Kuer. In the instant case the Apex Court had observed that no interest can be
created in favour of an unborn person but when the gift is made to a class or series of persons,
some of whom are in existence and some are non-existent, it does not fail completely, it is
valid with respect to the persons who exist at the time of testator’s death and is invalid with
respect to the rest.

CONCLUSION
Thus, from the above discussion it is clear that the transfer of property can be executed in
respect of unborn persons. Though, the transfer cannot be operated directly but it can be
executed indirectly by the machinery of trusts. In other words, the interest in favour of the
unborn person shall constitute the entire interest in that particular immovable property. The
underlying fundamental principle enshrined under section 13 of the Transfer of Property Act
is that a person disposing off property to another person shall not create hurdles for the free
disposition of that property in the hands of one or more generations.

Thus, for the validity of a transfer in favour of an unborn person, it is important that the whole
of the remaining interest of the person transferring the property should be conveyed to the
unborn person. Moreover, as soon as the transfer of property comes into operation, the vested
interest is also transferred to the unborn person. The transfer of immovable property to unborn
persons can, thus take effect only according to the provisions discussed above. Else, the transfer
will be declared as void.

BIBLIOGRAPHY

1. https://www.mondaq.com/india/wills-intestacy-estate-planning/366482/a-brief-write-
up-on-transfer-of-property-for-the-benefit-of-unborn-person

2. https://blog.ipleaders.in/transfer-to-unborn-person

3. Transfer for Benefit of Unborn Person, http://lawtimesjournal.in/transfer-for-benefit-