TABLE OF CASES

Basideo Rais case I.L.R. 46 ALL. 333.

Girijesh Dutt v. Data Din AIR 1934 Oudh 35 : 147 I.C. 991.
Kempraj v. M/s Barton & Co., A.I.R. 1970 S.C. 1873.
London & S.W. Railway v. Gomm (1882) 20 Ch. D. 562.
Nafar Chand v. Kailash Chand (1921) 25 C.W.N. 201.
Padmanabhan Ayyar v. Sita Ram Ayyar 106 I.C. 158.
Ram Baran v. Ram Mohit A.I.R 1967 S.C. 744.
Ram Newaz v. Nankoo (1926) 92 IC 401.
Whitby v. Mitchell.

SECTION 13: TRANSFER OF PROPERTY FOR THE

BENEFIT OF AN UNBORN PERSON
SECTION 5 OF THE TRANSFER OF PROPERTY ACT, 1882 provides that a transfer
can occur only between two living persons i.e. inter vivos transfer. Section 13 is an exception
to this general rule on which the entire Transfer of Property Act is based.
SECTION 13 OF THE TRANSFER OF PROPERTY ACT, 1882 talks about the transfer of
property made for the benefit of an unborn child & states that: where a transfer of property is
made, in order to create an interest for the benefit of a person who is not born at the date of
transfer, subject to the condition that a prior life interest is created in that property by the
same transfer, the interest created for the benefit of such unborn person shall take effect only
when it extends to the whole of the remaining interest of the transferor in the property.
The following two illustrations explain this section very clearly:
A, owner of property X, transfers the property to B, his daughter, in trust for A, and after her
death, for As intended grandchildren. Therefore, B holds a life interest in the property while
As grandchildren hold absolute interest in the property. This is a valid transfer.
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.
Thus, from the above explanation, following INGREDIENTS can be drawn with respect to
Section 13.
UNBORN PERSON: The transfer of interest in the property is made for the benefit of an
unborn person, that is, the person is not in existence at the date of transfer. It includes both a
child in the womb and a child not even in the womb of a mother.
A child in mothers womb
En ventre sa mere: (french word meaning child in the mothers womb) is deemed to be in
existence after taking birth. So in the womb, he is considered still to be an unborn for the
purposes of transfer of property. As per Section 20 of the Transfer of
Property Act, Property so given to an unborn/child in mothers womb would vest on his birth.
NO DIRECT TRANSFER: The interest is not transferred directly to the unborn, but via
medium or trust, that is, a prior life interest has to be created in favour of another person.
Thus, the transferor first has to create a life estate in favour of a living person. If a property is
transferred directly to an unborn person, there would be an abeyance (suspension) of
ownership from the date of transfer till the coming into existence of the unborn person.
Section 13 uses the expression for the benefit of and not transfer to unborn person.

PRIOR LIFE INTEREST: For life interest two conditions need to be fulfilled:
Person is acting as a trustee till the unborn is born i.e creating a mechinary of interest.
Unborn, after being born, becomes absolute owner of the property without possession which
lies with the trustee.
Possession will only be given when life interest has exhausted i.e. after the death of the
trustee.
If the unborn does not come into existence, property will revert back to transferor and his
legal heirs. If the unborn is born even for a minute and dies, property will go to his legal heirs
after the death of the person enjoying life interest and not to the tranferor.
Illustration: A transfers life interest in a property to B i.e the power to possess, enjoy and use
the income of the property, not absolute ownership. And then after
B, A transfers absolute interest to Bs unborn child, C.
Girijesh Dutt v. Data Din AIR 1934 Oudh 35 : 147 I.C. 991.
A, owner of X property, gifted it to her nephew Cs daughter as life interest stating that if she
has a male descendant, he will have absolute interest in the property. And if female, she will
have limited or life interest in the property. After her, property will absolutely pass to As
nephew C. Nephews daughter died issueless. It was held that the property will revert back to
A or his heirs as the gift made to C has failed because the moment limited interest is given to
an unborn person, it will be void. Therefore, the transaction failed there and then. Life interest
given priorly to a living person is valid (As nephews daughter) but the transaction involving
limited interest to the unborn is void.
NO LIMIT ON NUMBER OF LIFE INTERESTS: There is no limit to the number of
successive interests in favour of living persons. Property may be given to more than one
living person for life, before it ultimately vests in the unborn. For example, A tranfers life
interest in a property to B, then to C, and then to D, and after D an absolute interest to Ds
unborn child E. This is a valid transaction, the only precondition is all persons to whom
successive life interest is given must be alive at the time of transfer because life interest
cannot be given to unborn or dead.
ABSOLUTE INTEREST: Only absolute or whole interest can be transferred in favour of
unborn person and not life or limited interest. That means entire property needs to be
conveyed to the unborn child and not a limited estate.
EXCEPTION ALLOWED UNDER ENGLISH LAW: RULE OF DOUBLE
POSSIBILITY
Section 13 allows transfer of only an absolute interest to the unborn person. But under
English Law the situation is not the same. The rule followed under English Law is the
DOCTRINE OF DOUBLE POSSIBILITY or the OLD RULE AGAINST PERPETUITIES
(Whitbys Rule) according to which first unborn child is allowed to have limited interest in

the property under common law. But the second unborn must have an absolute interest.
Therefore, the second illustration mentioned under Section 13 will be valid under English
Law whereas void from the beginning in India, because under Indian Law, no limited estate
can be transferred in favour of unborn child.
Whitbys rule was laid down in the case of Whitby v. Mitchell. It can be stated as follows:
If an interest in the reality 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 and then to As sons son in fee simple, the remainder to the
grandson would be void under this rule.
If no child is born, property will revert back to the transferor or his legal heirs. First child,
even if born for a minute and dies, would get limited interest and pass on absolute interest to
the child who is born next. This explained with the help of the following situation:
A transfers property to Bs unborn children. Limited interest to first unborn and absolute
interest to the second unborn. If first unborn is not born, the second unborn will not get
absolute but limited interest as the first unborn child and any child born after that would get
absolute interest in the property as second unborn. And if the second unborn is not born, the
first unborn would still not get the absolute interest in the property, the property will revert
back to tranferor or his legal heirs after the life interest of first unborn expires.
Section 13 of Transfer of Property Act, 1882 is similar to Section 113 of Indian
Succession Act, 1925 except that Section 113 of the Indian Succession Act, 1925 is
applicable only to the concept of wills whereas Section 13 of Transfer of Property Act,
1882 applies to any mode of transfer of property to the unborn person.
Section 113 of the Indian Succession Act, 1925 provides that:
113. Bequest to person not in existence at testators death subject to prior bequest.Where a
bequest is made to a person not in existence at the time of the testators 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. Illustrations
Property is bequeathed to A for his life, and after his death to his eldest son for life, and after
the death of the latter to his eldest son. At the time of the testators death, A has no son. Here
the bequest to As eldest son is a bequest to a person not in existence at the testators death. It
is not a bequest of the whole interest that remains to the testator. The bequest to As eldest son
for his life is void.
A fund is bequeathed to A for his life, and after his death to his daughters. A survives the
testator. A has daughters some of whom were not in existence at the testators death. The
bequest to As daughters comprises the whole interest that remains to the testator in the thing
bequeathed. The bequest to As daughters is valid.

A fund is bequeathed to A for his life, and after his death to his daughters, with a direction
that, if any of them marries under the age of eighteen, her portion shall be settled so that it
may belong to herself for life and may be divisible among her children after her death.
A has no daughters living at the time of the testators death, but has daughters born afterwards
who survive him. Here the direction for a settlement has the effect in the case of each
daughter who marries under eighteen of substituting for the absolute bequest to her a bequest
to her merely for her life; that is to say, a bequest to a person not in existence at the time of
the testators death of something which is less than the whole interest that remains to the
testator in the thing bequeathed. The direction to settle the fund is void.
A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall
be settled upon his daughters, so that the portion of each daughter may belong to herself for
life, and may be divided among her children after death. B has no daughter living at the time
of the testators death. In this case the only bequest to the daughters of B is contained in the
direction to settle the fund, and this direction amounts to a bequest to persons not yet born, of
a life-interest in the fund, that is to say, of something which is less than the whole interest that
remains to the testator in the thing bequeathed. The direction to settle the fund upon the
daughters of B is void.
PRINCIPLE UNDERLYING SECTION 13: The rule is that a person disposing of property
to another should not fetter the free disposition of that property in the hands of more
generations than one (by virtue of the condition that life interest cannot be created in favour
of an unborn person). The rule is quite distinct from the rule against perpetuity although the
effect of these two rules is often the same.

SECTION 14: RULE AGAINST PERPETUITY

SECTION 14 is basically an extension of Section 13. Free flow of property is a major
component of public policy. Perpetuity is a limitation which places the property forever out
of reach of the exercise of power of alienation. Section 14 prevents property from being
tied up forever since law believes in alienation rahter than accumulation.
ANALYSIS OF SECTION 14:
The vesting of property absolutely cannot be postponed beyond the lifetime of any one or
more persons living at the date of transfer i.e no interval between the termination of the
precedent interest of the living person and the vesting of the interest in the unborn person.
Section 13 does not specify age until which unborn child gets interest in the property. Section
14 specifies age of majority for the same.
MAXIMUM REMOTENESS OF INTEREST THAT CAN BE CREATED: As provided
above, according to Section 20 of the Act, the unborn child, after coming into worldly
existence, acquires absolute interest in the property so transferred to him (even if he takes
birth for just five minutes). However, maximum remoteness of such interest of the unborn in
the property that can be created by the transferor is uptil the age of majority i.e. 18 years, after
which the interest becomes vested, even if an age more than 18 years is mentioned in the
agreement by the transferor.
Section 14 allows delay of the vesting of interest in the unborn person (who was not born at
the date of transfer of interest) during his minority period i.e. interest vested beyond 18 years
of age would be void. Thus, the maximum remoteness of interest (absolute interest) that can
be created in an unborn child is till the age of majority i.e. 18 years. After 18 years, the
interest would become vested.
PERPETUITY PERIOD: Maximum period during which the property may be rendered
inalienable. The extent of property is the life of any person who is alive at the moment when
the deed which creates the interest begins to operate, plus period of 18 years from the time
when such designated person dies. The total period of perpetuity i.e, the period for which the
vesting of property can be postponed where the unborn person has come into existence either
at or before the expiry of the last prior interest is his minority period. Where the unborn
person is in womb at the expiry of the last prior interest, the period of gestation plus
1
minority.
Therefore, the main essentials of Section 14, in addition to essentials of Section 13, can be
drawn as:
1.)
The ultimate beneficiary must come into existence (either into the world or in the
womb) before the death of the last preceding living person.

Singh Avatar, The Transfer of Property Act, Universal law Publishing CO. PVT. LTD.,
Allahabad ,(2006), p 64

2.)
Vesting of interest in favour of ultimate beneficiary may be postponed only up to the
2
life or lives of living persons plus minority of ultimate beneficiary; but not beyond that.
For example, A transfers certain propertied to B for life and then to C for life and then
to an unborn person when he attains the age of majority. B and C are living at the date
of transfer and unborn, the ultimate beneficiary is not in existence even in mothers
womb. The last prior life interest is with C. When C dies, the contemplated unborn
must be in existence either as a born child or unborn in mothers womb. The
maximum period up to which vesting of property in unborn can be postponed would
be, in case of born child, life of C plus till the child attains the age of majority, and in
3

case of a child in mothers womb, life of C plus period of gestation plus period of majority.
POSITION UNDER ENGLISH LAW:

Under English Law, the specified age for an unborn for acquiring interest in the property is 21
years. If an age more than 21 years is specifically mentioned by the transferor, the transaction
is still valid. However, the interest becomes vested when the person turns 21.
In English Law, vesting of perpetuity may be postponed for any number of lives in being and
an additional term of 21 years afterwards, irrespective of the minority of the person entitled.
Under Indian Law, however, as required under section 13, such ultimate beneficiary must be
borne before the termination of the last preceding interest. Accordingly there should not be
any interval between the termination of preceding interest and its consequent vesting in the
ultimate beneficiary; vesting of interest cannot be postponed even for a moment. By way of
relaxing this strict rule of section 13 it is provided in section 14 that vesting of interest may be
postponed but not beyond the life of preceding interest and minority of the ultimate
beneficiary. Where property is made to vest within the period prescribed in this section, the
transfer is valid. Any delay beyond this period would make the transfer void. Accordingly
where a property is transferred to A for life and then to unborn person when he attains the age
4
of 19 years, the transfer to U.B is void under section 14.
Additional period is confined to the minority of the person concerned. For example, a grant is
made to A for life and remainder to As eldest son, three years after death of A. Suppose on
As death, son is major. In this case, vesting is postponed for three years in gross. But in
Indian Law, it is void since the beneficiary was not a minor on expiry of life (in being).

Sinha, R.K, The Transfer of Property Act ,Central law Agency Allahabd, 14 th ed, p 100
Supranote 1, pg: 64

Supranote 2, pg: 101

PERPETUITY EXPLAINED WITH THE HELP OF A DIAGRAM:

Beyond Stage 4 the property goes to the ultimate beneficiary

STAGE 1
STAGE 2
STAGE 3
STAGE 4
(life time of
(living persons or time
(Birth of the ultimate
(Minority of
Transferor)
given to prior estate holders)
transferee)
ultimate transferee)

At Stage 1 and 2, the transferor is free to put any condition and may transfer the property to
one or many; concurrently or consecutively, for a day, month, year or life (maximum prior
estate is life estate).
The ultimate transferee was not in existence till Stage 1 or 2. Now at Stage 3 he must be born,
otherwise he loses. If he is born on or before Stage 2, the property would vest in him under
Section 20 of the Transfer of Property Act but if the transferor so wants, vesting can be
postponed till he is minor, not a second thereafter, perpetuity which was valid up to Stage 4,
will be allowed. After that the property will go as the law prescribes.
The rule against perpetuity is applicable to both movable and immovable property. This was
held in the case of Cowasji v. Rustomji 20 Bom 511.
EXCEPTIONS:
There are two exceptions to the rule against perpetuity:
PERSONAL AGREEMENTS:
The Rule Against Perpetuity does not apply to personal agreements; that is the agreements
which do not create an interest in the property. Rule against perpetuity is only applicable to
transfer of property. If there is no transfer of property i.e no transfer of interest, the rule
cannot be applied. Contracts are personal agreements even though contracts relate to rights
and obligation in some property. This is a reciprocal to English Law.
Examples of personal agreements under Indian Law:
Ram Newaz v. Nankoo (1926) 92 I.C. 401.
While examining the transfer of property under Section 14, courts look at the possible events
according to the terms of the deed and not on actual events on the date of
transfer.

In Ram Newaz case , ; R had a share in a village which he sold to the defendant reserving two
bighas of land to himself under the following condition: Two bighas of land which I have
excluded from sale shall remain in my possession for life, and after my death in the
possession of my lineal descendantsI and my lineal descendants
5

(1926) 92 IC 401.

have no right to transfer the land excluded if none of my lineal descendants be alive
then land shall be the own property of the vendee. This was a transfer to take effect on
the date of vendors last lineal descendent. R had only one son who was alive at the date
of transfer, but who died childless. On actual facts, the transfer operated within the period
allowed, but as it was possible that the transfer might have been postponed for 100 or 200
years until the vendors line was extinct, the reservation of the two bighas was not valid.
Agreement in which we are creating a right from generation to generation without
power of alienation, no interest is created and such agreement also counts as a
personal agreement and is not hit by Section 14 of TPA.
Here Xs interest depended upon male lineal descendant. Interest on male lineal
descendant is void, since you cannot make a transfer withholding the power of alienation,
therefore, Xs interest is void and X cannot claim the property.
In deciding questions of remoteness, regard must be had to be possible and not to
6
actual events. Where at the time of transfer of property there is possibility or probability
that in future it would be a transfer in perpetuity, the disposition shall be void even if at
7
the time of actual vesting of interest there is no violation of rule against perpetuity.
London & S.W. Railway v. Gomm (1882) 20 Ch. D. 562
8

In London & S.W. Railway v. Gomm , the plaintiff Railway Co. no longer required a piece
of land for the purpose of the raiway and by a deed of 1865 conveyed the land to G
absolutely. G covenanted that he and his heirs would at any time, thereafter, whenever the
land was required by the railway and after six months notice reconvey the land to
railways for 100 pounds. In 1879, the defendant Gomm purchased the land from Gs heir
with notice of covenant. In 1880 the Plaintiff Railway gave notice to
Gomm to reconvey the land and on his refusal sued for specific performance of the
covenant. Kay, J., held, that the covenant did not create an estate or interest in land and
was therefore, not affected by the rule against perpetuity and decreed the suit. This was
reversed in appeal and Jessel, M.R., said that there was no real distinction between a
contract of purchase and an option of purchase and an option for purchase created an
equitable interest which if unlimited in duration, was void for remoteness as against an
assignee of land.
Under Common Law, there are two types of ownership, Legal & Equitable
Under English Law, personal agreements like agreement to sell also create an
equitable right or interest in the property. Therefore, rule against perpetuity applies
to it. You cannot create perpetuity in such a manner which goes from generation to
generation. London Railway CO. cannot acquire the property, since equitable
interest is attached to the property. If this case would have been under Indian Law,
Railway Co. could acquire the property since agreement to sell under Indian Law
does not create any interest in the property.
Ram Newaz v. Nankoo (1926) 92 IC 401.

Supranote 2, pg: 103

(1882) 20 Ch. D. 562.

10

Basideo Rais Case I.L.R 46 ALL. 333.

9

The Privy Council considered this point in Basdeo Rais case . The proprietor of a hill agreed
in 1872 with a society of Jains in compromise of a litigation, that if the society required a site
on the hill for erection of a temple, he and his heirs would grant the same free of cost. In a
suit for the enforcement of the covenant it was observed:
If the case was to be regarded in another light- namely agreement to grant in future whatever
land might be selected as a site for a temple, as the only interest created would be one to take
effect by entry at a later date and as the date is uncertain the provision is obviously bad as
offending the rule against perpetuities, for the interest would not then vest in praesenti; but
would vest at the expiration of an indefinite time which might extend beyond the expiration
of the proper period.
Ordinarily a contract for sale does not create any interest in favour of the prospective
purchaser. Any contract thereof which embodies a right of pre-emption, is nothing more
than a contingent contract for sale which becomes enforceable when the party to the
contract intends to dispose of certain property.
It does not create any estate in favour of party to whom the property is to be offered for sale
in future. Such a contract thus does not come within the purview of section 14 of the Act.
This section comes into play only when there has been a transfer of interest in property. The
creation of charge is not a transfer of interest in property.
Following jain sect, he asked community I give you preference right to buy any part of land
and built temple and his coming generation is bound by the same. He died and jain
community claimed it from the coming generation. They contended pre-emption is hit by
Section 14. It was held that this is a pre-emption agreement not creating any interest in the
jain society. Therefore, it is not hit by Section 14. They are bound to give the place since it is
a personal agreement.
Ram Baran v. Ram Mohit A.I.R 1967 S.C. 744
10

In Ram Baran Prasad v. Ram Mohit Hazra , the Court considered whether covenant of preemption contained in an arbitration award violates the rule against perpetuity and whether the
same is binding on assignees or successor-in-interest of the original contracting parties. The
factual matrix of that case was that two brothers, Tulshidas Chatterjee and Kishorilal
Chatterjee owned certain properties in the suburbs of Calcutta. In 1938, Kishorilal sued for
partition of the properties. The matter was referred to arbitration. The arbitrators gave award,
which was made rule of the court. Under the award, two of the four blocks into which the
properties were divided by the arbitrators were allotted to Tulshidas and the remaining two
blocks to Kishorilal. In the award there was a clause to the following effect:
"We further find and report with the consent of and approval of the parties that any party in
case of disposing or transferring any portion of his share, shall offer
I.L.R. 46 ALL. 333.
A.I.R 1967 S.C. 744

11

preference to the other party that is each party shall have the right of pre-emption between
each other."
After the arbitration award became rule of the court, Tulshidas sold some of the portion of his
properties to Nagendra Nath Ghosh. This was done after Kishorilal refused to pre-empt the
same. Later on, Kishorilal sold his two blocks to Rati Raman Mukherjee and others. The
Mukherjees sold the property to the plaintiff-respondents. Nagendra Nath also sold the
property to defendant No.1. Thereupon, the plaintiffs filed suit for pre-empting the transaction
between Nagendra Nath Ghosh and defendant No.1. The trial Court held that the covenant of
pre-emption was not hit by the rule against perpetuities and was enforceable against the
assignees of the original parties to the contract. Accordingly, a decree was granted to the
plaintiffs. The defendants took the matter in appeal to the Calcutta High Court which was
dismissed. Before this Court, it was argued that the covenant for pre- emption was merely a
personal covenant between the contracting parties and was not binding against successors-ininterest or the assignees of the original parties to the contract. The Court then considered
whether covenant of pre-emption offends the rule against perpetuities and is, therefore, void
and not enforceable. After noticing the definition of "perpetuity" given by Lewis, the Court
held that the rule against perpetuity concerns rights of property only and does not affect
the making of contracts which do not create interest in property.
In this case, in the light of first exception to the rule against perpetuity, it was held that
right to pre-emption and agreement to sell are not hit by Section 14 of TPA.
Nafar Chand v. Kailash Chand (1921) 25 C.W.N. 201
A shebaits of a temple agreed to appoint the family of C as pujaris for generation to
generation to perform the services in the temple and made provision for the expenses and
remuneration of the office. It was held that the agreement is valid and not affected by the
11
rule against perpetuity since no interest in the property of the temple is created.
Padmanabhan Ayyar v. Sita Ram Ayyar 106 I.C. 158.
A covenant of redemption in a mortgage does not offend the rule.
12

In Padmanabhan Ayyar v. Sita Ram Ayyar, it was held that the rule against perpetuities
applies only to the cases where there was a new interest in immovable property contemplated
to be created after the expiry of the time prescribed by the rule and that in the case of a
mortgage, there was no such future interest in property contemplated to be created because it
was of the very essence of the mortgage that the equity of redemption was a present interest
in the property in exercise of which alone the property was sought to be redeemed. House of
Lords is also of the view that the rule against perpetuities had no application to mortgages.
Kempraj v. M/s Barton & Co. A.I.R 1970 S.C. 1873
Rule does not apply to contracts for perpetual renewal of leases and also agreements.
Tripathi G.P, The Transfer of Property Act, Central law Publications, 11 th ed, Allahabad, p
142.
106 .I.C. 158.

12

In a Contract for lease, clause which provides for perpetual renewal of leases is not hit by this
13
section. In Kempraj v. M/s Barton & Co., the Supreme Court of India held that a lease with
a covenant for renewal does not offend he rule against perpetuity. The reason is this, that the
clause for renewal of lease cannot be treated as a transfer. Where the conract for lease
contained a clause providing that the lessor shall have right to terminate the lease at any time,
the Court held that the contract is not hit by this section.
TRANSFERS FOR THE BENEFIT OF PUBLIC:
The second exception to rule against perpetuity is Section 18 of Transfer of Property Act.
Where a property is transferred for the benefit of public in the advancement of
religion, knowledge, commerce, health, safety or any other object beneficial to
14

mankind, the transfer is not void under the rule against perpetuity.

This exemption is necessary because transfers of property for the benefit of public generally
are made through the medium of religious or charitable trusts. In the trusts, the property
settled is tied up for an indefinite of perpetuity period so that its income may be utilized for
ever for the object for which trust is created. Application of the
rule against perpetuity on trusts would render every trust void and it would be
impossible to create any trust for the benefit of public.

15

Waqaf property is static and non-transferable by virtue of the Waqaf Validating Act of 1913.
Section 14 of the Transfer of Property Act, 1882 is mostly identical to Section 114 of the
Indian Succession Act, 1925. Section 114 of the Indian Succession Act also lays down the
Rule against Perpetuity but only in case of transfer of property to an unborn person
through a will.
Section 114 of Indian Succession Act provides that:
114. Rule against perpetuity.No bequest is valid whereby the vesting of the thing
bequeathed may be delayed beyond the life-time of one or more persons living at the
testators death 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 thing bequeathed is to belong. Illustrations
A fund is bequeathed to A for his life and after his death to B for his life; and after Bs death
to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here
the son of B who shall first attain the age of 25 may be a son born after the death of the
testator; such son may not attain 25 until more than 18 years have elapsed from the death of
the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the
lifetime of A and B and the minority of the sons of B. The bequest after Bs death is void.
A fund is bequeathed to A for his life, and after his death to B for his life, and after Bs death
to such of Bs sons as shall first attain the age of 25. B dies in the lifetime of the

A.I.R. 1970 S.C. 1873.

Section 18 , Transfer of Property Act, 1882.
Supranote 2, pg: 104

13

testator, leaving one or more sons. In this case the sons of B are persons living at the time of
the testators decease, and the time when either of them will attain 25 necessarily falls within
his own lifetime. The bequest is valid.
A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that
after Bs death it shall be divided amongst such of Bs children as shall attain the age of 18,
but that, if no child of B shall attain that age, the fund shall go to C. Here the time for the
division of the fund must arrive at the latest at the expiration of 18 years from the death of B,
a person living at the testators decease. All the bequests are valid.
A fund is bequeathed to trustees for the benefit of the testators daughters, with a direction
that, if any of them marry under age, her share of the fund shall be settled so as to devolve
after her death upon such of her children as shall attain the age of 18. Any daughter of the
testator to whom the direction applies must be in existence at his decease, and any portion of
the fund which may eventually be settled as directed must vest not later than 18 years from
the death of the daughters whose share it was. All these provisions are valid.

CONCLUSION:
The effect of these Rules is that a transfer/ gift can be made to an unborn person subject to the
following conditions:
That the transfer/ gift shall be of the whole of the remaining interest of the transferor/ testator
in the thing transferred/ bequeathed and not of a limited interest; and
That the vesting is not postponed beyond the life in being and the minority of the unborn
person.
In simple terms, while section 13 of TOPA lays down the mechanism for transfer of property
for the benefit of unborn person and "what property" is required to be ultimately transferred
in favour of an unborn person in order to validate such transfer, section 14 of TOPA provides
the "maximum period as to when" such property can be vested upon such unborn person.
Section 14 of TOPA supplements section 13 of TOPA and thus, it is pertinent to note that
when an interest in any property is intended to be transferred in favour of an unborn person,
sections 13 and 14 of TOPA are required to be read together and the provisions contained
thereunder are required to be duly complied with, in order to give effect to the intended
transfer in favour of such unborn person.

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BIBLIOGRAPHY
Avtar Singh, The Transfer of Property Act, Universal law Publishing CO. PVT. LTD.,
Allahabad, (2006).
th

Dr. G.P. Tripathi, The Transfer of Property Act, Central law Publications, 11 ed,
Allahabad.
th

Mulla, The Transfer of Property Act, Lexis Nexis, Nagpur, 9 Ed.

Dr. R.K. Sinha, The Transfer of Property Act, Central law Agency Allahabad, 14
Ed.

th

Dr. Poonam Pradhan Saxena, Property Law, Lexis Nexis Butterworths Wadhwa,
Nagpur, 2

nd

Ed.