UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

RESEARCH PAPER OF PROPERTY LAW

“Property Transfer For Unborn Individuals In India: A Legal Analysis”

Submitted to: Dr. Neelu Mehra

Submitted by: Aryan Shokeen (01516503820) and Pranav Singh (04916503820)
BBALLB (6th semester)
ABSTRACT

Property law in India has changed dramatically during the last several decades. It has gone a
long way from denying basic property rights to certain segments of society, such as women, to
recognising intellectual property rights. One such domain is property transfer for unborn
individuals. This is an intriguing feature of property law since it presupposes transfer for the
advantage of such an unborn person. This subject contains several grey areas that must be
examined.

By way of this Research, the objective of the authors is to examine the many facets of transfer
for the benefit of an unborn child. The researcher will accomplish certain objectives at the end
of the research such as the examination of Section 13 1 of the TP Act. Explore the several aspects
of this clause through the lens of distinct case law and examine key clauses without which it
would be impossible to comprehend S. 13 in its whole.

INTRODUCTION

A property transfer cannot be done for the benefit of an unborn child, as the definition in
Section 52 applies only to live individuals. However, such a transfer is permitted if the
following requirements are met under Section 13 of the TP Act:

 An unborn person's interest must be preceded by another interest.

 When the preceding interest expires, the unborn person must continue to exist.
 The interest generated in favour of the unborn person must be the entirety of the
transferor's remaining interest; no life interest can be created in favour of the unborn
person.

This may be demonstrated through the use of an illustration.

A gives property of which he is the owner to B in trust for A and his planned wife successively
for the duration of their lives, and for the oldest son of the intended marriage in perpetuity upon
the survivor's death. This is a valid gift for the benefit of an unborn child since it meets all three
of the criteria outlined above.

1
Section 13, Transfer of Property Act, 1882.
2
Section 5, Transfer of Property Act, 1882.
To begin, a previous life interest in A and his wife was formed. Second, by using the phrase
"after the survivor's death," it has been ensured that the unborn child is still alive when the
previous interest terminates. Finally, because the transfer is absolute, the eldest son's stake is
the entirety of the remaining interest in the property. 3

MAIN LEGAL PROVISIONS

As this study is primarily concerned with the TP Act, the principal clauses upon which this
paper is based are as follows:

Section - 13. Transfer for the benefit of an unborn person 4

When an interest in property is created for the benefit of a person who was not present at the
time of the transfer, subject to a prior interest created by the same transfer, the interest created
for the benefit of such person does not take effect unless it encompasses the entirety of the
transferor's remaining interest in the property5.

Section - 14. Prohibition of Perpetuity 6

No transfer of property can generate an interest that will take effect after the lives of one or
more individuals existing at the time of the transfer and the minority of some person who will
exist at the end of that period and to whom the interest formed will belong if he attains full age.

Section - 15. Transfer to class, some individuals whom fall under the provisions of sections 13
and 14 7

If, because of a transfer of property, an interest in it is created for the benefit of a class of
persons, an interest in it is created for the benefit of some of whom the interest fails due to any
of the rules contained in sections 13 and 14, the interest fails only with respect to those persons
and not with respect to the entire class. 8

3
T. Subramania Nadar v. T. varadharajan, AIR 2003 mad 364.
4
Section 13, Transfer of Property Act, 1882.
5
https://www.amicusx.com/post/transfer-of-property-to-unborn-rationale-behind-the-creation-of-life-
interest (Last visited on June 10,2023)
6
Section 14, Transfer of Property Act, 1882.
7
Section 15, Transfer of Property Act, 1882.
8
https://www.hamilawhouse.com/transfer-of-property-act-1882/ (Last visited on June 6,2023)
Section - 16. The effective date of transfer in the absence of prior interest 9

When an interest established for the benefit of a person or a class of individuals fails in relation
to such person or class, any subsequent interest created in the same transaction and intended to
take effect after or upon the failure of such previous interest likewise fails.

Section - 20. When an unborn child obtains a vested interest in property transferred for his
benefit 10

Where a property interest is formed for the benefit of a person who is not then living, he obtains
a vested interest upon his birth, unless the conditions of the transfer indicate otherwise, even
though he is not immediately entitled to enjoyment.

Section - 113. Bequests to individuals who did not exist at the time of the testator's death are
subject to prior bequests11

Where a bequest is given to a person who does not exist at the time of the testator's death,
subject to a prior bequest in the will, the subsequent bequest is void unless it represents the
entirety of the testator's residual interest in the object donated.

JUDICIAL INTERPRETATION

An interest can be created for the benefit of an unborn person who acquires interest upon his
birth. This was held in the case:

F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat 12

Due to his helplessness, the donor (Mahadevi) acquired all possessions from her brother
(Ganapathi) (in the year 1936). A gift deed (of ancestral estates) was performed in 1947, and
the parties' parents were still living at the time of the gift. The appellant was a minor, and the
respondent had not even been born when the case was filed. According to the appellant, a
specific property conveyed by the gift deed was given to him entirely, and the respondent has

9
Section 16, Transfer of Property Act, 1882.
10
Section 20, Transfer of Property Act, 1882.
11
Section 113, Indian Succession Act, 1925.
12
AIR 2004 SC 2665.
no right to split the said property under a correct interpretation of the gift deed. Additionally,
it was argued that the establishment of an interest in favour of the respondent, who was not
born at the time the gift deed was completed, was unconstitutional under Section 13 of the 1882
Transfer of Property Act. The Trial Court and the Supreme Court both rejected both of these
allegations. The appellant then filed a petition with the Supreme Court.

Referring to the gift document, the Court said that the words "this property will be yours and
no one else shall have any right or claim to it" cannot be interpreted in isolation because they
are immediately followed by the phrase "in case any male children."

If any male offspring are born to your parents, you shall jointly own the listed immovable
property and residence with those male children".

When the donor claimed that 'nobody else shall have any right or title to it,' she was just echoing
what had been stated previously: she had opted to donate the immovable property and house to
the appellant since he was the donor's only male child at the time. There were no such qualifiers
in the donation deed to indicate that the donor intended to exclude the unborn male offspring
from the property's ownership.

When read in its entirety, the document plainly demonstrated the donor's purpose to guarantee
that all of the gifts remained in the family of her brother, as ancestral possessions, and would
be enjoyed by the appellant and any subsequent male offspring born as joint holders.

As a result, the Court determined that there is no prohibition on the transfer of interest in favour
of an unborn person. Section 20 authorises the creation of an interest for the benefit of an
unborn child who acquires interest upon birth. No provision was brought to the court's attention
that prohibited the creation of a complete interest in a property in favour of an unborn person.
In the current instance, the donor bequeathed the property to the appellant, who was still alive
at the time, and also provided that any more male offspring born to her brother would be joint
owners with the appellant. Section 13 of the Act does not apply to such a condition. Section 20
permits the establishment of such a right. Thus, the respondent acquired title to the property at
his birth.
Validity of transfer with regard to the persons who are in existence at the time of the testator's
death and with regard to those who are not in existence. Important case that can be considered
here is:

 Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer 13

FACTS

Raja Bisheshwar Bux Singh, the plaintiff's father and the defendant's spouse, was a taluqdar of
Oudh, and the Gangwal Estate, which he acquired in 1925, is a subject of the Oudh Estates Act
(I of 1869).
Shortly before his death, Raja Bisheshwar made a will dated 11th September 1929, in which
he gave to Dhuj Singh, the younger son, five assets listed in lists A and B (attached to the
plaint), in order to provide for the upkeep of the said son and his descendants. Raja Bisheshwar
died in 1930, leaving behind Bajrang Bahadur, the plaintiff, and Dhuj Singh, the younger, who
has since died, leaving behind his spouse Bakhtraj Kuer, the defendant. The plaintiff said that
Dhuj Singh held only a life interest in the estates entrusted to him by Bisheshwar and that upon
his death, the property passed on the plaintiff as the late Raja's successor. Additionally, it was
argued that even though Dhuj Singh possessed an absolute interest in the taluqdari properties
as a result of his father's will, the plaintiff was entitled to succeed to the taluqdari assets under
the provisions of section 14 (b) read with section 22 (5) of the Oudh Estates Act.

The defendant opposed the plaintiff's claim primarily on the grounds that Bisheshwar Bux
Singh, as the sole owner of the properties, was competent to dispose of them in any manner he
pleased and that, pursuant to his will, the properties vested in the defendant, not the plaintiff,
following Dhuj Singh's death. In summary, the plaintiff contended that the will created a life
estate for Dhuj Singh followed by a bequest to his widow as his personal heir.

Although no interest can be created in favour of an unborn child, the Court held that when a
gift is made to a class or series of persons, some of whom are alive and some who are not, the
gift does not fail in its entirety; it is valid with respect to the persons who are alive at the time
of the testator's death and invalid with respect to the remainder (S. 15 of the TP Act). The
widow, who is Dhuj Singh's next successor, was alive at the time of the testator's death, and

13
AIR 1953 SC 7.
the life interest formed in her favour should undoubtedly take effect. Thus, she acquired an
interest in the suit properties upon her husband's death commensurate with the remainder of
her natural life, and the plaintiff had no existing right of possession. Appellant's appeal was
rejected without prejudice.

SUBJECT TO A PRIOR INTEREST IN LIFE

Until a person comes into being, he cannot be a transferee of property or a beneficiary under a
trust14 However, where a transfer or trust is created immediately in favour of a living person,
there is no legal impediment to the creation, as part of the same transfer, of a subsequent interest
in favour of a person who was not present at the time of the transfer or trust but who may
become so before the prior interest terminates. The reason for this is that the following interest
takes effect only after the preceding interest terminates, and at that point, the person for whose
benefit it was established would have been created. Thus, the estate must vest in someone
between the date of transfer and the unborn person's birth. It is important for the succeeding
interest to cover the whole interest.

Remains in the transferor following the creation of the previous interest. Otherwise, the
following interest provided for in this section is not applicable. 15The basis upon which S. 13 of
the TP Act is founded is that the liberty of alienation of property must not be utilised to its own
detriment, and that any contrivances tending to create a perpetuity or to permanently remove
the property from the power of alienation shall be void.

PERSON NOT IN EXISTENCE

A kid en ventre sa mere is a child in the womb and cannot be considered a "person in existence"
in the conventional sense of the term. However, such a kid has been recognised as a person in
existence under Hindu Law16 and English Law. However, such a structure is used only when
it is required for the child's benefit. 17

SECTION 13 & SECTION 14 OF TP ACT

14
Basanti Seal and Ors. v. Hiralal Seal and Ors., 2007 (1) Cal HN 55. 1985 Ker LJ 161.
15
Isaac Nissim Silas and Ors. v. Official Trustee of Bengal, AIR 1957 Cal 118
16
Tagore v. Tagore, (1872) 9 eng LR 337. (1935) 104 LJ Ch 111
17
Villar v. Gilbey, 1907 App Cas 139.
The rule against perpetuity is predicated on the fundamental premise that the owner's liberty or
right to detach or transfer his property at will should not be utilised in such a way that it is
injurious to the property itself. Perpetuities, according to Blackstone, render estates incapable
of serving the purposes of social commerce and caring for the unexpected eventualities of
private life for which property was originally founded.18 The rule against perpetuity
(alternatively called the rule against remoteness) prevents the non-vesting of interests beyond
a reasonable duration. As long as the transferees are still alive, an unlimited number of
succeeding estates may be formed. A transfer for life may be made to A, followed by a transfer
for life to B, followed by a transfer for life to C, and so on, provided that A, B, and C are all
living at the time of the transfer. However, if the ultimate beneficiary is not alive at the time of
the transfer, S. 13 (TP Act) mandates that he get the whole remainder of the estate. If he is not
born before the last preceding estate terminates, the transfer to him is null and void under this
provision. If he is born before the last previous estate terminates, he has a vested interest and
immediate possession of the last prior estate at birth. The rule against perpetuity does not
require vesting to occur at the final beneficiary's birth. 19 Rather than that, it specifies the
maximum period within which a future interest must vest, and if vesting is delayed beyond that
maximum period, the restriction becomes null and invalid due to remoteness.

In Ram Newaz v. Nankoo, a person A executed a sale deed for his land in 1884 in favour of
another person B. With this deed, he formed a life estate for himself, his son, and their unborn
children. This was opposed to S. 13, which allows for the transfer of only absolute property
interests for the benefit of unborn persons. Second, the document's stipulations indica ted that
the property should be made inalienable by the establishment of life estates for an endless
number of generations. Once again, this was a violation of S. 14. (TP Act).

DISTINCTION

S. 13 prohibits the transferor from transferring anything less than an absolute estate, that is, his
full interest in the property, to an unborn person if the transfer in his favour is to take effect
after the decision of the previous interest formed by the same transfer. Section 14 prohibits the
creation of a transfer, whether in whole or in part, that will persist for one or more existing

18
AIR 1926 All 283.

19 th
Nagpur. (ed. Dr. GC Bharuka) 10 Edition 2006. Haryana. Page No. 169.
lives plus 18 years. Thus, Section 13 enacts in favour of an absolute transfer following a certain
term, whereas Section 14 enacts against perpetual transfers. 15 Such transfers cannot be
effected through the use of trusts.

ANALOGOUS LAWS

HINDU LAW

According to Hindu law, no transfer may be undertaken on favour of a non-existent individual.

This was amended in 1914 by the Hindu Transfer and Bequests Act (Madras Act 1 of 1914)
and the Hindu Disposition of Property Act (XV of 1916). 29 These enactments permitted
Hindus to provide presents to unborn individuals, provided they did not breach any of the rules
stated in Chapter II of this Act. It becomes necessary to address an important instance at this
point:

Tagore v. Tagore20: Two Hindu brothers, subject to Dayabhaga Law, executed a deed
purporting to provide for the permanent devolution of their respective properties in the direct
male line, including adopted sons, subject to the condition that in the event of the failure of
lineal male heirs in one branch, the properties in that branch should pass to the other, subject
to the same condition and only in the absence of male descendants in the direct male line in
either branch. The Privy Council decided that the deed was unlawful because it attempted to
modify the authorised form of succession under Hindu Law, and that there was no gift-over at
all, since the designed estate was always defeasible in the event of his death without male
issue.21

MOHAMMEDAN LAW

According to Section 2 of the TP Act, nothing in Chapter II shall be construed to impair any
norm of Mohammedan Law. Mohammedan law does not recognise contingent interests, and
any interest formed for the benefit of an entity that does not exist is a contingent interest. 22 As
a result, Mohammedan Law prohibits the transfer of property in favour of an unborn child 23

20
L.R . (1872-73) I.A.
21
Gulamhusein Sajan v. Fakirmahomed Sajan, AIR 1947 Bom 185; Abdul Rahiman
22
https://www.ezylegal.in/blogs/important-provisions-of-the-transfer-of-property-bare-act(Last visited on
June 1,2023)
23
Sahib and Ors. v. Uthumansa Rowther and Ors., AIR 1925 Mad 997.
DIFFERENCE BETWEEN ENGLISH LAW AND INDIAN LAW

Under Indian law, the estate formed for the unborn child cannot take effect unless it
encompasses the whole interest in the properties, subject to the establishment of a previous
interest in favour of a live creature. To an unborn child, only an absolute interest may be
provided; creating a restricted interest renders the transfer null and unlawful. However, in
English law, a limited interest can be formed in favour of an unborn child, but not thereafter.

For example, A creates a life interest in his buddy B and then transfers it to his unborn son UB
and subsequently to B's unborn grandchild UUB upon his death. This transfer would be legal
under English law but would be invalid under Indian law in favour of the unborn son UB owing
to Section 13 and UUB according to Section 16 of the TP Act.

CONCLUSION

Section 13 of the TP Act establishes a unique framework for legitimately transferring property
for the benefit of unborn persons:

1. When transferring property for the benefit of an unborn child, the transferor should first form
a life estate in favour of a live person and then an absolute interest in favour of the unborn
child.

2. Until the person in whose favour a life interest is constituted dies, he retains ownership of
the property and enjoys its usufruct, or enjoyment.

3. If the person (who was unborn on the date of the establishment of the life estate) is born
during his lifetime, the title to the property instantly vests in him, but he will not have
possession of the property until the life holder dies.

However, this Section cannot be read in isolation, and its provisions have full effect when read
in conjunction with Sections 14, 15, 16, and 20 of the TP Act.

HYPOTHESIS REBUTTAL

After completing extensive investigation, the researcher has reached the following conclusion
about the proposed hypotheses:
1. Transfers for the benefit of an unborn child have been detailed in the legislation, but
they are subject to specific requirements being met.
2. The transferor is not permitted to specify a time period for vesting the property in the
recipient. He must consider the rule against perpetuity and ensure that the property vests
in the child before to or at the time of reaching majority. Vesting the property at a later
age renders the transfer null and invalid.
3. When a transfer of property is made to a class of individuals, some of whom are alive
and some of whom are not, the transfer does not fail in its entirety; rather, it is legitimate
for those who are alive but invalid for the others.