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Topic: TRANSFER FOR BENEFIT OF UNBORN

PERSON

ABSTRACT

The purpose of this research paper is to investigate an unborn child's legal individuality
under the Transfer of Property Act of 1882. The legal rights of an unborn foetus have long been
a source of contention. The question to explore is whether a foetus can be given the status of a
human being and conferred the status of a person from the moment it is conceived. First, I'll
define the term "unborn person," and then we'll look at the notion entrenched in Section 13 of the
1882 Transfer of Property Act. I hope to elaborate on the competing interests of an unborn kid in
my research study.

METHODOLOGY - The methodology adopted in this project work is based on Doctrinal

research.

 
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INTRODUCTION

Unborn person- He is someone who does not exist right now, will not appear in the future at any
time, and is currently in the mother's womb. He is essentially a person who has not yet been
born.

According to the maxim “nasciturus pro jam natohabetur,” a child in its mother's womb is
regarded by a legal fiction as already born for many purposes, which means that the legal
capacity of the natus is sometimes determined by referring back to a time when he was still
nasciturus unborn.1 Thus, there is a fiction in property law that a child “en ventresa mere” is a
person in being a life chosen to form part of the period in the rule against perpetuities.

The phrase "transfer of property" is defined under Section 5 of the Transfer of Property Act of
1882. According to the section, a "transfer of property" is an act by which a live person passes
property to one or more other living persons, or to himself and one or more than one living
person, in the present or future; and "to transfer property" is to conduct such an act. A further
component of the section states that a "living person" includes a corporation, association, or body
of individuals, whether incorporated or not, although nothing in this section affects any Indian
legislation dealing to property transfers to or by companies, associations, or bodies of
individuals.

In general, the terms of the Transfer of Property Act of 1882 prohibit the transfer of property to
an unborn child. Let us first define the term "unborn person" in relation to this act before moving
on to the next step. An unborn child or person is someone who does not have a current existence
but has a particular reference to one and may be born in the future. Despite the fact that a child in
a mother's womb is not a person in existence, it is treated as such under both Hindu and English
law. As a result, it is important to highlight that the term "unborn" refers not just to individuals
who have been perceived but have not yet been born, such as a kid in the womb, but also to those
who have not yet been recognised. It's unclear whether they'll be born at all, but a property
transfer for their benefit is legal. Let us now look at the notion established in Section 13 of the

1
www.blog.ipleaders.in/transfer-to-unborn-person
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Transfer of Property Act, 1882, after comprehending the meaning of the phrase " unborn
person."

PROVISION UNDER TRANSFER OF PROPERTY ACT, 1882

The general rule that a transfer can only be made between living people is given effect by
Section 13. There can't be a direct transfer to someone who doesn't exist or hasn't been born yet.
This is why section 13 uses the phrase transfer "for the benefit of" rather than "to" an unborn
person. A competent transferee is a child in his or her mother's womb.

As a result, property can be transferred to a child in the mother's womb because the child exists
at the moment of transfer, but not to an unborn person who does not exist in the mother's womb.
Every property transfer entails a transfer of interest.2

The transferor loses his or her interest in the property as soon as it is transferred, and the
transferee gains it. It is consequently necessary for the transferee to exist in order for the interest
to vest.

Otherwise, the interest will be suspended until the transferee is established. This is incompatible
with the concept of an interest. The property cannot be transferred directly to an unborn person
under Section 13, but it can be transferred for the benefit of an unborn person. 3 Two conditions
must be met in order for property to be transferred for the benefit of an unborn:

a. Prior life interest must be created in the name of a person who is alive at the time of
transfer, and
b. absolute interest must be transferred to an unborn person.nborn person

2
www.lawctopus.com/academike/transfer-property-unborn/
3
www.lc2.du.ac.in/DATA/Transfer%20for%20Benefit%20of%20Unborn%20Person.pdf
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TRANSFER FOR BENEFIT OF UNBORN PERSON

THINGS TO BE COVERED

 Creation of Prior Interest and Absolute Interest in Favour of Unborn Persons (section 13)
Section 13 puts into action the general rule that transfers can only take place between living
people.4 Section 13 lays out the mechanism for transferring an interest for the benefit of an
unborn person. The term unborn refers not only to those who have been conceived but have not
yet been born, i.e. a child in the womb, but also to those who have not yet been conceived.
Whether or not they are born is also a possibility, but a transfer can still be made for their
benefit.

According to section 13 of the Act, a life estate in favour of a living person or individuals must
be created first, followed by an absolute interest in favour of the unborn. The person who has a
life estate created in his or her favour will own and enjoy it for the rest of his or her life. If the
person in whose favour an absolute interest has been created (i.e. the unborn) is born during such
person's lifetime, the title to the property will instantly vest in him/her, even if he/she will only
have possession of the property following the death of the life holder. If the unborn is not born
during the life of the life holder, the property will be enjoyed by the life holder for the rest of his
life, after which it will belong to the transferor or his heirs, whichever is the case.5

 Rule Against Perpetuity (section 14)- The Perpetuity Rule is a rule that prohibits something
from continuing indefinitely (Section 14) Perpetuity literally refers to an unlimited duration of
time or infinity. The rule against perpetuity in Section 14 stipulates that when a life interest is
created for an unborn child, the vesting of that interest cannot be delayed beyond the life time of
individuals in whose favour the life interest is created plus the minority of the unborn child, i.e.
before he becomes 18. As stated in section 13, an interest in favour of an unborn can be created
by first creating a life interest in favour of someone else and then creating an absolute interest in
favour of such unborn. The moment the unborn is born, he acquires a vested interest in the
property that has been transmitted to him, even if he does not take control of it until later.
4
www.blog.ipleaders.in/transfer-to-unborn-person
5
www.legalserviceindia.com/legal/article-1341-transfer-of-property-for-the-benefit-of-unborn-child.html
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Section 14 provides, however, that the devolution of such vested interest might be postponed so
that the unborn does not acquire a vested interest upon his birth. A life interest in the unborn
cannot be postponed beyond the duration of life of individuals in whose favour a life interest has
been created plus the minority of the unborn, according to section 14.

 Rule of Possible and Actual Events

 Transfer to a Class (section 15) Property may be transferred for the benefit of single unborn
person or for the benefit of a class of such persons. In both situations the transfer must be in
accordance with section 13 and 14. Section 15 states that if on transfer of property an interest is
created for benefit of a class of persons with regard to some of whom the interest fails by reason
of rules contained in section 13 and 14, such interest fails in regard to such persons only and not
in regard to the whole class. Thus as per section 15, the transfer should be given effect to as far
as possible.6

 Transfer when prior interest fails (section 16) According to this section, if a specific transfer
fails due to a breach of sections 13 and 14, every transfer intended to take effect after or upon the
failure of that transfer likewise fails.7 When the expression "after or upon failure of prior
interest" is used, it signifies that if a transfer occurs after or after a void transfer, the preceding
one will take effect. As a result, in the aforementioned scenario, the transfer in favour of B would
be lawful and take effect because it occurs before the void transfer.

 Directions for Accumulation of Income and Exceptions (section 17 and 18) This section
relates to transfers in which the transferor separates the property from the revenue generated by
the property. The transferee is instructed not to spend the property's income, but rather to save it
for a specific or general purpose. If the term for which the transferee must accumulate the
income exceeds the transferor's life or 18 years, the direction is void and the transferee may
ignore it for the remainder of the period. As a result, Section 17 defines the time limit after which
the direction for income accumulation becomes void. The stipulated time period is the
transferor's lifetime or 18 years from the date of transfer.

6
www.lc2.du.ac.in/DATA/Transfer%20for%20Benefit%20of%20Unborn%20Person.pdf
7
www.legalbites.in/transfer-of-property-to-an-unborn-child
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VIEWS OF THE APEX COURT IN REFERENCE TO THE TRANSFER TO UNBORN

PERSON

In several decisions, the Supreme Court of India has interpreted the terms of the Transfer of
Property Act, 1882 in relation to property transfers made for the benefit of unborn persons. The
Apex Court made significant observations in the well-known case of Girjesh Dutt vs. Datadin8.
Facts of the case enumerate that “A” made a gift of her belongings to “B”, who was her
nephew’s daughter. The gift made by A was made for the life of B, then to B's daughter without
power of alienation, and finally to A's nephew if B had no successor, male or female. B didn't
have any children when he died.

Given the facts of the case, the court determined that the gift in favour of unborn daughters was
illegal under Section 13 because it was a restricted interest gift subject to B's previous interest.

Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey Kuer 9 is another case involving this
concept. The Supreme Court held in this case that while no interest can be created in favour of an
unborn person, when a gift is made to a class or series of people, some of whom are alive and
some of whom are not, it does not fail completely; it is valid with respect to the people who are
alive at the time of the testator's death and invalid with respect to the rest.

8
AIR 1934 Oudh 35

9
AIR 1953 SC 7
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CONCLUSION

As a result of the preceding reasoning, it is evident that property can be transferred to unborn
humans. Though the transfer cannot be carried out directly, it can be carried out indirectly
through the trusts' machinery. In other words, the unborn person's stake in the immovable
property shall constitute the complete interest in that immovable property. The underlying
fundamental concept contained in Section 13 of the Transfer of Property Act is that a person
disposing of property to another person must not obstruct the free disposal of that property by
one or more generations.

Thus, for a transfer in favour of an unborn person to be lawful, the residual interest of the person
transferring the property must be given to the unborn person in its whole. Furthermore, the
vested interest is transmitted to the unborn person as soon as the property transfer is completed.
Thus, only the provisions outlined above can apply to the transfer of immovable property to
unborn persons. Otherwise, the transfer will be considered null and void.