ALIGARH MUSLIM UNIVERSITY

MURSHIDABAD CENTRE
SESSION: 2021-22

TUTORIAL TEST

SUBJECT - TRANSFER OF PROPERTY ACT

TOPIC = An Overview Of Section 13 of TPA (Transfer

for the Benefit of an Unborn Person)
SUBMITTED TO SUBMITTED BY

Dr. Md. W. Siddiqui M DANIYAL

SIRAJ
(Asst. Professor) 18BALLB55
GL0749
4TH YEAR
7th SEMESTER
2nd Group
An Overview Of Section 13 of TPA (Transfer for the
Benefit of an Unborn Person)
INTRODUCTION:

Section 5 of the Transfer of Property Act, 1882 defines the phrase “transfer of property”. The
section provides that “transfer of property” means an act by which a living person conveys
property, in present or in future, to one or more other living persons, or to himself and one or
more than one living persons; and “to transfer property” is to perform such act.Thus, bare
reading of the above mentioned section helps us understand that the conveyance of the property
must be from one living person to another living person. When it is said that both the individual
must be living, it is implied that transfer by will does not come within the scope of section 5 as
such transfers come into effect only after the death of the person who is executing the will.
However, an exception to this section is section 13 which facilitates the transfer of immovable
property in favour of an unborn person.
The provisions of Transfer of Property Act, 1882 in general do not allow the transfer of property
directly to an 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.

2- PROVISION OF SECTION 13 UNDER TRANSFER OF PROPERTY

ACT, 1882: -

Section 13 of the Transfer of Property Act, 1882 provides that when for the transfer of
property, an interest therein is created for the benefit of an unborn person at the date of the
transfer, a prior interest is to be created in respect of the same transfer and 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 person transferring the property in the property to be transferred.

Thus, in order to transfer a property for the benefit of an unborn person on the date of the
transfer, it is imperative that the property must first be transferred by the mechanism of trusts in
favour of some person living other than the inborn person on the date of transfer. In simpler
terms, it can be said that the immovable property must vest in some living person between the
date of the transfer

and the coming into existence of the unborn person as the property cannot be transferred directly
in favour of an unborn person.
3- ESSENTIAL ELEMENTS OF SECTION 13: -

The essential elements of section 13 have been discussed below. They are as follows:

1. No Direct Transfer

A transfer cannot be directly made to an unborn person. Such a transfer can only be brought into
existence by the mechanism of trusts. It is a cardinal principle of property law that every
property will have an owner. Accordingly, if a transfer of property is made to an unborn person,
it will lead to a scenario wherein the property will remain without an owner from the date of
transfer of property till the date the unborn person comes into existence.

2. Prior Interest

If the circumstances are such that there is no creation of trust, then in that case the estate must in
some other person between the date of transfer and the date when the unborn person comes into
existence.In simpler words we can say that the interest in favour of an unborn person must
always be preceded by a prior interest created in favour of a living person.

3. Absolute Interest

The entire property must be transferred to the unborn person. The transfer to an unborn person
must be absolute and there should be no further transfer from him to any other person.An interest
which remains only for the lifetime cannot be conferred on an unborn person. Under the English
law, an unborn person can be conferred an estate only for his lifetime. This concept of English
law, however, is subject to a restriction known as the rule of double possibilities. This rule was
recognised in the case of Whitby Mitchell. The rule states that life interest to an unborn person
should not be transferred as doing so will give rise to existence of two possibilities. The first
possibility will be the birth of the unborn person to whom the life estate was to be transferred
and the second possibility will be the coming into existence of issues of that unborn persons.
Thus, the transfer of property to an unborn person can be permitted only if the absolute interest
is transferred and not just the life estate.

Illustration

“A” owns a property. He transfers it to “B” in trust for him and his intended wife successively
for their lives. After the death of the survivor, it is to be transferred to the eldest son of the
intended marriage for his life, and after his death, it is to be transferred to A’s 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 A’s remaining interest in the property.

4- PRIOR LIFE INTEREST AND ABSOLUTE INTEREST: -

Life Interest: - The transfer for the benefit of an unborn person must be preceded by a life
interest in favor of person living person in existence at the date of the transfer. So that such
living person holds the property during his life and till the time the unborn would come in the
existence. After the termination of this life interest the property would pass on ultimately to
the unborn person who, by that time comes into the existence.

Absolute Interest: - Only absolute interest may be transferred in favor of an unborn person.
Limited interest cannot be given to unborn person. sec 13 says that interest given to an unborn
must be the whole of the remaining interest of the transferor in the property. When a property
is transferred in favor of an unborn person the transferor first creates the life interest and after
transferring the property, he retains with him the remaining interest of the property. After
termination of the life interest the unborn gets the absolute interest in that property.

5- APPLICABILITY OF SECTION 13 OF TPA: -

Hindu Law and Muslim Law

Under pure Hindu law, a gift or bequest in favor of an unborn was void. But now, since
Transfer of Property Act is applicable to Hindus, the transfer in favor of an unborn person is
valid if it is made subject to the provisions of Section 13 of the Act.

Since Section 2 of the Transfer of Property Act provides that “nothing shall be deemed to
affect any rule of Mohammedan law”, Section 13 is not applicable to transfers made by
Muslims. However, under Muslim law to a gift in favor of a person not in existence has been
held void.

Indian Succession Act, 1925

Section 13 is almost identical with section 113, Indian Succession Act, 1925. The difference
between the two sections is that the former relates to transfer inter vivos (between living
persons), while the latter deals with bequest which take effect only on the death of the
testator.

Section 13 controls section 113 and, therefore, both these sections should be read together.
In Sopher v Administrator-General of Bengal, the Privy Council considered the effect of
Section 113 of the Indian Succession Act in a will which provided for an ultimate bequest in
favor of persons not born at the time of the testator’s death.

6- VIEWS OF THE APEX COURT IN REFERENCE TO THE TRANSFER

TO UNBORN PERSON: -

The Supreme Court of India in various cases from time to time has interpreted the provisions of
the Transfer of Property Act,1882 in respect of the transfer of property done for the benefit of
unborn persons. In the famous case of Girjesh Dutt vs. Datadin, the Apex Court made important
observations. Facts of the case enumerate that “A” made a gift of her properties to “B”, who was
her nephew’s daughter. The gift made by A was made for the life of B and then to B’s daughter
without power of alienation and if there was no heir of B, whether male or female, then to A’s
nephew. B died without having any children. Thus, considering the facts of the case, the court
held that the gift in favour of unborn daughters was invalid under Section 13 as the gift was a
limited interest and also subject to the prior interest in favour of B.

Another case related to this concept is of Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey
Kuer. In the instant case the Apex Court had observed that no interest can be created in favour of
an unborn person but when the gift is made to a class or series of persons, some of whom are in
existence and some are non-existent, it does not fail completely, it is valid with respect to the
persons who exist at the time of testator’s death and is invalid with respect to the rest.

7-CONCLUSION: -
Thus, from the above discussion it is clear that the transfer of property can be executed in respect
of unborn persons. Though, the transfer cannot be operated directly but it can be executed
indirectly by the machinery of trusts. In other words, the interest in favour of the unborn person
shall constitute the entire interest in that particular immovable property. The underlying
fundamental principle enshrined under section 13 of the Transfer of Property Act is that a person
disposing off property to another person shall not create hurdles for the free disposition of that
property in the hands of one or more generations.

Thus, for the validity of a transfer in favour of an unborn person, it is important that the whole of
the remaining interest of the person transferring the property should be conveyed to the unborn
person. Moreover, as soon as the transfer of property comes into operation, the vested interest is
also transferred to the unborn person. The transfer of immovable property to unborn persons can,
thus take effect only according