Transfer of property Act which clearly state under section 13 that deals with
transfer of property to unborn child .A child in its mother's womb is for many
purposes regarded by a legal fiction as already born, in accordance with the
maxim nasciturus pro jam nato habetur ,which means that the legal capacity of
the natus (post born) is determined by referring back to a time when he was
still nasciturus (unborn) but present in womb.
Thus, in the law of property,
there is a narrative that a child en ventre sa mere is a person in being a life
chosen to form part of the period in the rule against perpetuities. According to
Fleming and Hains: the right to life of all human beings has the nature
of non-transgressed norm already which contained in the Universal Declaration of
Human rights 1948, the International Covenant on Civil and Political rights 1966
and the Declaration of the Rights of the Child 1959.
Under international law,
the unborn child is protected. In this Assignment rules of Section-13, its
limitation, life interests vested and consequences were explained.
relevant to Section -13 are discussed with various illustrations. Where
property is desired to be transferred or bequeathed by any person to more than
one generation, it is imperative that these Rules are conformed to. Transfer of
property to unborn child is a complex concept and has certain limitations to be
Section 13 of the Act refers to Transfer for benefit of unborn person. This
Section is an attempt to import into India what used to be known in England, the
concept of The rule of Double Possibilities. The rule is that a person
disposing of property to another shall not shackle the free disposition of that
property in the hands of more than one generation. As we have read earlier
that both the parties to a transfer of property must be living persons
(including juristic person), but Section 13 is an exception to the general rule
of transfer inter vivos.S.13 is a transfer by born to the unborn. A property can
be transferred to a child in the mother's womb but not to one who's not in the
Section 5 of the transfer of property act 1882, transfer as between living
Exception: There are certain sections in the act which lay down certain rules
regarding transfer for the benefit of 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. This section provides that there should never
be such a person as an unborn one takes for life, because it is an
Legal status of an unborn child
An unborn child is termed as a person post his/her birth. Infant enventresa mere
i.e. child in the womb is supposed to take birth for many reasons. As per the
property law, the unborn child can attain definite rights and inherit the
property but only in case he or she is born alive. Although the unborn child
cannot be well-thought-out as a person yet his/her rights can be vested in the
hands of his/her trustees.
Limited interest cannot be created for the benefit of an
unborn person even though it is subject to a prior interest in favour of a
Rights of an unborn child on property under the property act
The proposition of child enventresa mere under the property act gives the right
on property to an unborn child only if he or she is born alive. By the time
he/she is born, till then all the rights lay in the name of his or her
parents/trustees. One can easily consult a family lawyer and pursue online legal
help or advice in Delhi, Mumbai, Chennai, Bangalore, Hyderabad, Pune, Goa,
Kolkata, Ahmedabad, Gurgaon or Noida.
Pre-Requisites Of Valid Transfer To Unborn Child
The transfer of property can be done by way of trusts but not
directly. In the absence of trust the property must be created in favour of a
living person and then to the minor.
Prior Interest: Life interest can be enjoyed by persons until the unborn comes
into existence into this world.
Before the death of last life estate holder:
The unborn person must come into
existence before the death of the last life estate holder. It is not necessary
that he should be born, even if he is in the mother's womb that is enough. A
child en ventre sa mere is equal to child in essence meaning a child in the
mother's womb is equal to a child in existence.
Immediate transfer of rights:
All the rights should vest in the unborn child as
soon as he comes into existence. He will be the absolute owner of the property
vested in him. The pertinent fact here is that the transfer can be made to an
unborn person but not to the issue of an unborn person. There the gift made in
favour of the unborn grandchildren was not in respect of the whole interest in
the property, the gift was held to be a valid document.
In the case of Isaac Nissim Silas v. Official trustee of Bengal
, the trust
was a family trust created for the benefit of settlor and his wife his two sons
and their children to be born. This trust was formed by Issac Nissim Silas the
settlor by an Indenture of Trust dated 1-4-1931. The Official Trustee of Bengal
has been made a trustee and the property was conveyed to the trustee to be held
by him upon trust set out in the said agreement. At the date of the trust the
settlor's family consisted of his wife and his three children in equal parts.
The trust deed provided that the trustee after making provisions for meeting the
necessary expenditures the property will remain in lifetime of settlor,
thereafter to his wife, thereafter to his three sons in equal shares. Remainder
in favour of the son's children that are unborn and remain alive at a certain
period subject to certain restrictions. The legality of the gift made in favour
of the grandsons was questioned. It was held that the trust in favour of the
grandchildren in deed of trust amount to curtailment of such absolute gift and
such was void.
Rules Underlying Under Section-13
No Direct Transfer:
- A transfer cannot be made directly to an unborn. Such a transfer can
only be made by the machinery of trusts.
- Such a transfer can only be made by the machinery of trusts.
- It is a fundamental principle of the English common law, that any
disposition of land considered to produce an abeyance of ownership is void.
- Accordingly, if a transfer were made directly to an unborn person, there
would be an abeyance of ownership from the date of transfer till coming into
existence of the unborn person.
- In case a trust is not created, the estate must vest interest in some
person between the date of the transfer and the coming into existence of the
- In other words, the interest in favour of an unborn person must always
be led by a prior interest in favour of a living person.
- The entire property must be transferred to the unborn person.
- It is not permissible to confer a life-interest on an unborn person.
- In the illustration to the section, the benefit created for the eldest
unborn son is only a life-interest and it, therefore, fails.
- In English Law, it is possible to give an estate to an unborn person for
life. But this aspect of English Law was subject to a restriction called the
rule against double possibilities.
- A gives property to B for life, and afterwards to his son (unborn),
subject to the condition that if the son changes his religion, the property
should be forfeited. Here the condition regarding change of religion fetters
the estate, and does not therefore comply with Section 13, which speaks of
the whole of the estate.
- A transfer his properties to X for life and then to Y for life and then
to Z for life and thereafter to the unborn child of Z. Here, X, Y and Z are
all living persons in existence at the date of the transfer. This
disposition of property is valid. The property may be given to more than one
living persons successively ‘for life' before it ultimately vests in the
unborn (Z's unborn child).
- A transfer his properties to X for life who is unmarried and then to the
eldest child of X absolutely. The transfer in favour of eldest child of X is
Girjesh Dutt v/s. Datadin Air 1934
- A transferred gift to B, Nephew daughter. Then to B's male descendant.
- Absence of B's male child to B's daughter (limited interest was created) and
absence of B, any descendant male/female to A's Nephew.
- B dies issueless,
- Gift in favour of B was valid but gift made in favour of B's daughter was void
as limited interest was created and according to section 13, interest created in
favour of unborn person should be absolute interest.
- Further subsequent transfer to A's nephew will also fail as per section 16
(Transfer to take effect on failure of prior interest) of Transfer of Property
Legal Consequences For Transfer To Unborn Child
- The intermediary person living at the date of the transfer is to be
assumed only life interest. He has to preserve the property like a trustee
during his life-time on behalf of the unborn. If absolute interest is given
to this living person, he may be entitled to dispose it off to anyone. If he
holds it, the property after his death shall go to his legal heir and not to
the unborn for whose ultimate benefit the disposition was made.
- The unborn must come into existence before the death of the person
holding property for life. If the unborn comes into existence say, after one
month after the death of the last living person (i.e. after termination of
the preceding interest), the property is to revert back to the transferor or
his legal heirs. This is apparent because after termination of the
life-interest, it cannot remain in abeyance and cannot wait even for a
moment for the next person to come into existence.
- For instance, A transfer property of which he is the owner to B and his
future 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. Here, the successive life interests in favour of B
and his intended wife is a valid transfer. But the eldest son of the
intended marriage who is unborn has been given the property only for life
and not an absolute interest. Therefore, the transfer in his favour is void
and does not take effect.
The TOPA (Transfer of Property Act) does not permit transfer of property
directly in favour of an unborn person. Thus, in order to transfer a property
for the benefit of a person unborn on the date of the transfer, it is imperious
that the property must first be transferred in favour of some other
person living on the date of transfer. In other words, the property must vest in
some person between the date of the transfer and the coming into existence of
the unborn person since property cannot be transferred directly in favour of an
unborn person. The interest of the unborn person must in every case be preceded
by a prior interest.
Further where an interest is formed in favour of an unborn person on a transfer
of property such interest in favour of the unborn person shall take consequence
only if it extends to the whole of the outstanding interest of the transfer-or
in the property thereby making it impossible to confer an estate for life on an
unborn person. In other words, the interest in favour of the unborn person shall
constitute the whole remaining interest. The underlying principle in section 13
is that a person disposing of property to another shall not shackle the free
disposition of that property in the hands of more than one generation.
Section 13 does not prohibit successive interests being formed in favour of
several persons living at the time of the transfer. What is prohibited under
section 13 is the grant of interest restricted by time or otherwise to an unborn
person. In simple terms, while section 13 of TOPA lays down the instrument 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
legalize such transfer, section 14 of TOPA delivers the "maximum period as to
when" such property can be vested upon such unborn person.
- Dr. Avatar Singh, Transfer of Property Act, Universal Law Publishing
- Dr. G.C Bharuka, Mulla transfer of property act1882, Lexis Nexis
- Isaac Nissim Silas And Ors. vs Official Trustee Of Bengal on 9 May, 1956
- www.academia.com/transfer -of-property-unborn-child
- Real property future interest-rights of unborn child, Indiana Law