ASSIGNMENT

TOPIC: - Section 13 of TPA (Transfer for the Benefit of an Unborn Person):

Submitted By
MOHAMMAD ZIYA ANSARI
BALLB (HONS)
SEMESTER-VI
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
TUTORIAL PROJECT

Submitted To
DR. Tabassum Chaudhary mam
Professor, Faculty of Law
Aligarh Muslim University
ALIGARH-202002 (INDIA)
 SYNOPSIS

1- INTRODUCTION.

2- PROVISION OF SECTION 13 UNDER TRANSFER OF PROPERTY ACT,

1882.

3- ESSENTIAL ELEMENTS OF SECTION 13.

4- PRIOR LIFE INTEREST AND ABSOLUTE INTEREST

5- APPLICABILITY OF SECTION 13 OF TPA.

6- VIEWS OF THE APEX COURT IN REFERENCE TO THE TRANSFER

TO UNBORN PERSON.

7- CONCLUSION.

8- BIBLIOGRAPHY.
 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE Dr
TABASSUM CHAUDHARY MAM FOR GUIDING ME IMMENSELY
THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS
THE COMPLETION OF THIS PROJECT.

THANKING YOU
MOHAMMAD ZIYA ANSARI
BALLB-4th Year GI-6492
17BALLB-72
1. INTRODUCTION:

Section 5 of the Transfer of Property Act, 1882 defines the phrase “transfer of property”. The
section 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.

2- PROVISION OF SECTION 13 UNDER TRANSFER OF PROPERTY ACT,

1882: -

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.

3- ESSENTIAL ELEMENTS OF SECTION 13: -

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

1. 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.
2. 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.

3. 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.
4- 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.

5- 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 Section
113 of the Indian Succession Act in a will which provided for an ultimate bequest in favor of
persons not born at the time of the testator’s death.

6- VIEWS OF THE APEX COURT IN REFERENCE TO THE TRANSFER

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.
7-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.

8-BIBLIOGRAPHY:

a- Rai Diva, Transfer to Unborn Person, https://blog.ipleaders.in/transfer-to-unborn-person/

b- Vinay492001, Transfer of Property For The Benefit of Unborn Child,
http://www.legalserviceindia.com/legal/article-1341-transfer-of-property-for-the-benefit-
of-unborn-child.html
c- Ahuja Urvashi, Transfer for Benefit of Unborn Person, http://lawtimesjournal.in/transfer-
for-benefit-of-unborn-person/