1

Rule Against Perpetuity

Rule against perpetuity as a function for maintaining a balance between the living and the dead.
The thinking behind this was that, since the dead cannot respond to changes in circumstances as
they arise, wealth should be controlled by the living persons. The rule against perpetuity
contained in section 14 of the Transfer of Property Act, 1882 states that no transfer of property
can create an interest which will take effect after the lifetime of one or more persons living at the
date of such transfer.1

Section 14 of the Transfer of Property Act provides that , 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 the interest created is to belong, if he attains full age (age of
majority).2

From the aforesaid section, we can extract two rules.

Firstly, the vesting of the property cannot be delayed beyond the lifetime of any one or more
persons living at the time of the transfer.

Secondly, The vesting of an absolute interest in favour of an unborn person maybe postponed
until he attains full age of majority which is according to the Majority Act, 1875, 18 years and
according to the Guardian and Wards Act, 1920, 21 years of age.

For example, A living person may transfer some of the property to another person provided that
after his death the property will go to his unborn son when he attains the age of 18 years. Such a
transfer is in accordance with the rule against perpetuity. It can be pointed out here that, under
Bangladeshi law, the property should be given absolutely to the unborn person which means; to
fulfil the criteria of the rule against perpetuity, partial vesting of the interest given to the unborn
person is not allowed.

1
https://www.observerbd.com/details.php?id=160322
2
avinandan dhar “A brief explanation of the transfer of property act” p.75
2

Section 10 of the Transfer of Property Act also states that, where the property is transferred
subject to a condition or limitation absolutely restraining the transferee or any person claiming
under him, the condition or limitation is void. Except in the case of a lease, vested interests,
charities, creation of charge, personal agreements. There may be two ways in which the property
can be tied up for too long, one is either by imposing a condition absolutely restraining the
transferee from parting, disposing his interest in the property or by creating a succession of
partial future interests until a remote period when the property will vest in somebody absolutely.
Thus, section 10 first creates the stepping stone by invalidating conditions against alienation by
restraining powers of creating future interest.

According to sections 13 and 14 of the Transfer of Property Act, the transfer is subject to certain
conditions, The conditions are – 3

1. Before transferring the property along with the unborn person, more than one person has
to be given the right of life in the same document at the same time.
2. The entire interest / ownership of the donor's property must be transferred along with the
unborn person.
3. One or more persons entitled to life must be alive at the time of handover.
4. The unborn must be born or remain in the mother's womb before the expiration of the last
lien.
5. From the expiration date of the last life title to the juvenile period, i.e. within 18 or 21
years, the minor must become an adult and take possession of the property.
6. From the time of expiration of the last lifetime, there is no possibility of waiting longer
than the period of juvenile.
7. If multiple interests arise in the same transfer, all interests must be valid, because if one is
considered void, the other will not be valid.

3
avinandan dhar “A brief explanation of the transfer of property act” p.76
3

The aims and objects of the rule against perpetuity

The purpose of the policy against permanence is to prevent the permanent or indefinite
settlement of any property. If the creation of future property or property along with the unborn
person is to be recognized, it is seen that if the property continues to be transferred in this way
and no control is imposed against it, any property will be permanently stuck in one place by a
single transfer along with the unborn person. And then no land will be available for the living
person. People's lives and economic activities will come to a standstill. And in order to
overcome this situation, the principle against eternity has been established.