Introduction

The Transfer of Property Act, 1882, primarily deals with transfers inter vivos, meaning transfers made during the lifetime of the transferor. However, it also provides for the creation of interests in favor of unborn persons, subject to certain conditions.

Section 13 of the Act outlines the specific requirements for transferring property to an unborn person:

• 1. Prior Interest: A prior interest must be created in favor of a living person or persons. This is typically a life estate, which ensures that the property is managed and protected until the unborn person is born.
• 2. Absolute Interest for the Unborn: The interest created for the unborn person must be absolute, meaning it should not be subject to any further conditions or limitations.

Key Points:

• Vested Interest: Upon birth, the unborn person acquires a vested interest in the property, even though they may not be entitled to immediate possession.

• Contingent Interest: If the unborn person does not come into existence, the property reverts to the transferor or their legal heirs.

• Rule Against Perpetuity: The interest created for the unborn person must vest within a specified period. This is to prevent the creation of perpetual interests that could hinder the free alienation of property.

• Transfer made to the benfit of the unborn person directly is void.

• Transfer should be for the benefit of the unborn person.

• Transfer should be made by creating prior life interest.

• Unborn person must take birth before the cessation of the prior life interest.

• Transfer is to be made of whole of the remaining interest of the transferor in the property.

• Unborn person shall get vested interest in property on the date of his taking birth.

Rationale:

The rationale behind allowing transfers to unborn persons is to provide security and financial support for future generations. By creating a vested interest in the property, the unborn person's rights are protected, even if they are not yet born.

Cases

Girjesh Dutt v. Datadeen, it is held that a valid transfer based on an illegal transfer is also invalid.

Rule against double possibilities is based on Section 13 (Whiteby v. Michel)

J.V. Satyanarayan v. P. Muniqayan held that a person having life interest cannot end the interest of an unborn by transferring the property to the third person.

In Conclusion:

While the Transfer of Property Act primarily deals with transfers between living persons, it also recognizes the importance of providing for future generations. By carefully following the provisions of Section 13, individuals can ensure that their property is transferred to unborn beneficiaries in a legally sound and equitable manner.