The general rule is under the Transfer of Property Act, 1882 is that property
can only be transferred from one living person to another living person. Because
when the property is transferred then all interest of the property transferred
along with it to the transferee. So if the property is transfer to the unborn
person, it would lead to the situation where the interest would be in abeyance
till the transferee come into existence, this is against the very concept of
interest. But Section 13 is the exception to this general rule, which envisaged
that property can be transferred for the benefit of the unborn child.
Section 13 of the Transfer of Property Act, 1882 laid down that:
ďWhere, on a transfer of property, an interest therein is created for the
benefit of a person not in existence at the date of the transfer, subject to a
prior interest created by the same transfer, the interest created for the
benefit of such person shall not take effect, unless it extends to the whole of
the remaining interest of the transferor in the property.
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 Aís 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 Aís remaining interest in the
An unborn child is a child not in existence, not even in the motherís womb. A
child in a motherís womb is considered to be a competent transferee. Thus as per
the general rule, a property can be transferred to the child in a motherís womb.
But pertaining to Section 13 of Transfer of Property Act, 1882 the property
cannot directly be transferred to an unborn child, but can be transferred for
the benefit of an unborn child.
Two essential conditions:
- Property cannot be directly transferred to the unborn child, so a prior
interest must be created in favour of a living person.
- The absolute interest must be transferred in favour of unborn child.
According to the general rule, enshrined under Section 5, the property cannot be
directly transferred to the unborn person. Therefore a prior interest is created
in favour of a living person so that a valid transfer of property to an unborn
person can be carried out. The unborn person must come into existence before the
prior interest comes to an end. Once the life interest holder dies, the absolute
interest of the property would vest in the unborn person, who by that time have
come into existence.
The life interest can be transferred to more than one living person but
ultimately the absolute interest will vest in the unborn person. For example, X
transfer his property to A for life, then to B for life, then to C for life, and
after the death of C to Cís son Y. This transfer of property is valid under
Section 13 of Transfer of Property Act.
The ultimate transaction of property to the unborn child must be of absolute
nature, not limited or life interest. If A transfers his property to B for life
Interest and then to his unborn daughter X, limiting her rights to further
alienate it. This transfer of property would be void because there is not an
absolute transfer of property to the unborn daughter X, as the right to further
alienate the property was not given to her.
Under Muslim Law, a gift in favour of an unborn child is considered a void gift.
Therefore, this section is not applicable on Muslims.