Introduction

Section 13 of Transfer of property Act read as follows:

Where, on a transfer of property, an interest therein is created for the benefit of a person not
in existence at the date of 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 transfer in the property.
Section 13 gives effect to the general rule that a transfer can be effected only between living
persons. There cannot be a direct transfer to a person who is not in existence or is unborn.
This is the reason why section 13 uses the expression transfer for the benefit of and not
transfer to unborn person. A child in the mothers womb is considered to be competent
transferee. Therefore, the property can be transferred to a child in mothers womb because the
child exists at that time but not to an unborn person who does not even exist in mothers
womb. Every transfer of property involves transfer of interest. As soon as the property is
transferred, the transferor is divested of that interest and the interest is vested in the
transferee. For vesting of interest, therefore, it is necessary that the transferee must be in
existence. Otherwise the interest will remain in abeyance till the transferee comes into
existence. This is against the very concept of an interest.
Section 13 provides that the property cannot transfer directly to an unborn person but it can
be transferred for the benefit of an unborn person. For transfer of property for the benefit of
unborn person two conditions are required to be fulfilled:
1) Prior life interest must be created in favour of a person in existence at the date of transfer
2) Absolute interest must be transferred in favour of unborn person.

Unborn Person
A person not in existence has a specific reference to one who may be born in the future but
does not have a current existence. Even thought a child in womb is literally not a person in
existence, but has been so treated under both Hindu Law and English Law. Thus, it should be
noted that the term unborn here, refers to not only those, who might have been conceived
but are not yet born, i.e. a child in womb, but also includes those who are not even conceived.
Whether they will be born at all or not is all possibility, but a transfer of property is
permissible to be effected for their benefit.

Transfer for the Benefit of Unborn Persons.

Section 13 provides a mechanism for a specific mechanism for transferring property validly
for the benefit of unborn persons. The procedure as follows:1
1) The person intending to transfer the property for the benefit of an unborn person should first
create a life estate2 in favour of a living person and after it, an absolute estate in favour of the
unborn person.
2) Till the person, in whose favour a life interest is created is alive, he would hold the
possession of the property, enjoy its usufruct i.e. enjoyment the property.
3) During his lifetime if the person, (who on the day of creation of the life estate was unborn) is
born, the title of the property would immediately vest in him, 3 but he will get the possession
of the property only on the death of the life holder.

Creation of a Prior Life Interest

1 Dr. G.C.Bharuka, mulla transfer of property act 1882,10th ed., 2006, Lexis Nexis Butterworths.
2 A life holder enjoys the property for his life only. He cannot transfer it to anyone. On his death, the property,
the property goes back to the settler or to anyone else, that the settler may direct.

3 The Transfer of Property Act 1882, s20

As far as the creation of a prior interest is concerned, first, the property is given for life to a
living person. It is not necessary that life interest should be created in favour of only one
living person. The transfer is competent to create successive life interests in favour of several
living persons at the same time.
For instance, A transfer property to B for life, and after him, to C, and then to D again for
their lives and then absolutely to Bs unborn child UB. On Bs death, the possession would be
taken by C and on Cs death, by D. On Ds death, the possession would go to Bs child, who
should have come in existence by this time. If he not there, the property would revert back to
A, if he is alive, else to his hiers.

No Life Interest for an Unborn Person

As far as the unborn is concerned, no life interest can be created for the benefit of an unborn
person. Section 13, specifically prohibits that, by the use of the expression, 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. It means that the transfer must convey
to the unborn person, whatever interest he had in the property, without retaining anything
with him. Thus, no limited estate can be conferred for the benefit of the unborn person. If
limited interest in the property is settled for him, the same would be void.4
For instance, A creates a life estate in favour of his friends B, and a life estate for the benefit
of Bs unborn first child UB1 and then absolutely to Bs second child UB2. This for instance
is of limited interest in the property for the benefit of an unborn person and would therefore
be void and incapable of taking effect in law. After the death of B, here, the property would
revert back to A or his heirs as the case may be, as even though the transfer for the benefit of
UB2 appears to be proper, as it is dependent on a void transfer that cannot take effect in law;
a transfer subsequent to, or dependent on a void transfer can also not take effect.
Thus, where a father gave a life interest in his properties to his son and then to his unborn
child absolutely, it was held that the settlement was valid. 5 But where the interest in favour of
the unborn child was a life interest the settlement would be void, and a subsequent interest

4 Dr. Avtar Singh, Transfer of Property Act, 2nd ed. 2009, Universal Law Publishing Co.
5 Jv Satyanarayan v Pyboyina Manikyan AIR 1983 Andh Pra 139

would also fail.6 Similarly, where there is possibility of the interest in favour of the unborn
child being defeated either by a contingency7 or by a clause of defeasance,8 it would not be a
bequest of the whole interest, and would be therefore be void.

Validity of Transfer to be Assessed by the Language of the Deed and not by

Actual Events.
In the example cited above, in figure (ii), suppose UB1 dies before B and UB2 is alive when
the life estate in favour of B comes to an end. Even then, the transfer of the benefit of UB2
will not take effect as the validity of the transfer has to be assessed from the language of the
document and not with respect to probable or actual events that may take place in future. It is
the substance of the transfer that will determine whether it is permissible under the law or not
and not how the situation may emerge in future.
In Girish Dutt V Data Din,9 A made a gift of her property to B for her life and then to her
sons absolute. B had no child on the date of execution of the gift. The deed further provided
that in case B had only daughters, then the property would go to such daughters but only for
their life. In case B had no child then after the death of B, the property was to go absolutely to
X.
The deed on paper provided a life estate in favour of Bs unborn daughters: which is
contrary to the rule of sec.13. However, B died without any child, and X claimed the property
under the gift deed. The court held that where a transfer in favour of a person or his benefit is
void under sec.13, any transfer contained in the same deed and intended to take effect or upon
failure of such prior transfer is also void. In determining whether the transfer is in violation of
sec.13, regard has to be made with respect to the contents of the deed and not what happened
actually. Here as the transfer stipulated in the contract that was void, the transfer in favour of
X also became void. Hence, Xs claim was defeated.

6 Girish Dutt v Data Din AIR 1934 Oudh 34

7 Ardeshir v Dadabhoy AIR 1945 Bom 395
8 Sopher V Administrator General of Bengal AIR 1944 PC67

9 AIR 1934 Oudh 34