TRANSFER OF PROPERTY IN FAVOUR OF AN UNBORN PERSON

INTRODUCTION 
An Unborn person means a person who is not in existence even in mother's womb. A child in
mother's womb or a child en ventre sa mere is a competent transferee. Property can be
transferred to a child in mother's womb but property cannot be transferred to any person who
is not even in the mother's womb because such person is an Unborn person. An Unborn
person can neither transfer property, not property can be transferred to an Unborn person
until it comes into existence.
Accordingly Section 5 of the Transfer of Property Act states-
S.5-“Transfer of property” defined.—In the following sections “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, or to himself] and one or
more other living persons; and “to transfer property” is to perform such act. 1  
The section 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 necessary 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. 2
So, if a property is transferred directly to a person who is not in existence the interest so
transferred shall be divested or be away from the transferor but it would have to be remain in
abeyance till the transferee comes into existence in whom it could vest.
TRANSFER FOR THE BENEFIT OF A PERSON UNBORN : SECTION 13
Although there cannot be a direct Transfer of Property to an Unborn person, Section 13
serves as an exception to Section 5. Section 13 of the Transfer of Property Act provides the
circumstances in which property can be transferred for the benefit of an Unborn person. A

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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.
Section 13 States- “Where on Transfer of Property and interest there in is created for
the benefit of a person not in existence at the date of the transfer subject to the 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 remaining interest of the
Transfer in the property.
A child in the mother’s womb is considered to be competent transferee. Therefore,
the property can be transferred to a child in mother’s womb because the child exists
at that time, but not to an unborn person who does not even exist in mother’s womb.
For vesting of interest, it is necessary that the transferee must be in existence.
Otherwise the interest will remain in abeyance till the transferee comes into
existence. 3 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.
The provision of the section 13 can be clarified by an illustration: A transfers a property of
which he is the owner to be interest for A and his intended wife successively for their lives
and after the death of the survival for the eldest son of the intended marriage for life and after
his death for A’s  Second Son. The interest so created for the benefit of eldest son does not
take effect because it does not extend to the whole of the remaining interest in the property.
In simple words, according to this section when it is desired to create an interest in the
property for the benefit of an Unborn person following two conditions must be satisfied:
1. Prior interest must be created in favour of living person or Living persons.
2. The whole of the remaining interest must be transferred to the benefit of an Unborn
person. In other words a life interest cannot be transferred to an Unborn person. 
PRECONDITION OF A VALID TRANSFER:

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Property cannot be transferred directly to an Unborn person but property can be transferred
for the benefit of an Unborn person. Section 13 provides the property can be transferred for
the benefit of an Unborn person subject following conditions:
1) Transfer for the Unborn person must be preceded by life interest in favour of a
person in existence at the time of transfer;
2) Only absolute interest may be transferred in favour of Unborn.
1. Transfer for the Unborn person must be preceded by life interest in favour of
a person in existence at the time of transfer
The transfer for the benefit of Unborn person must be preceded by life interest in
favour of the living person in existence of the date of transfer, but since this Unborn
or ultimate beneficiary 4 is not in existence as a time of the transfer property cannot be
given to him directly. Thus, there must be life interest in favour of living person so
that such living person holds the property during his life till the time the Unborn
person would come into existence.
2. Only absolute interest of the property may be transferred in favour of an
Unborn person.
Limited or life interest cannot be given to an Unborn person. Transfer of Property for
life of an Unborn person is void and cannot take effect. Section 13 entails that interest
given to the Unborn person must be whole of the remaining interest of the transferor
in the property.
In other words whole of the remaining interest is a entire interest of the transferor minus prior
life interest carved out of the ownership the transfer in favour of Unborn person and the prior
life interest must exhaust the whole interest of the transferor in the property which is
transferred by him.
For e.g.- A transfers his property to X for life who is unmarried and then to the eldest child of
X appsolutely this transfer in favour of eldest child of X is valid.
LEGAL CONSEQUENCES OF TRANSFER TO AN UNBORN PERSON:

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The transfer in favour of an Unborn must be preceded by a life interest and that only absolute
interest may be given to the Unborn has following legal consequences:
A. The person having the life interest in the property has only right to enjoyment and
position. he has to preserve the property like a Trustee during his lifetime on behalf of
the Unborn.
B.  The Unborn must come into existence before the death of the person holding
property for life if the Unborn comes into existence a after 1 month after the death of
the last living person the property shall revert back to the transfer or his Heirs.
This is obvious because after termination of the life interest the property cannot remain in
abeyance and cannot wait even for a moment for the next person to come into existence. 
LEADING CASE LAW:
A leading case on the provision of section 13 that is transfer to Unborn person is Girjesh Dutt
V.  Data Din. 5 A made a gift of a properties to her nephews daughter B for life and then
absolutely to B's male descendants if she should have any but in the absence of any male
child of B to B’s daughter without power of alienation and if B has no descendants male or
female then her nephew. B died issueless. The court held that the gift for life to be was valid
as B was living person at the date of the transfer but gift in favour of B’s daughter was void
under section 13 of the Transfer of Property Act because it was a gift of only limited interest.
TRANSFER OF IN FAVOUR OF AN UNBORN PERSON UNDER HINDU LAW:
Under Hindu law a gift or bequest in favour of an Unborn was void but now since Transfer of
Property Act is applicable to Hindus the transfer of property in favour of an Unborn person is
valid if it is made subject to the provision of section 13 of the act.
Section 20 of the Hindu Succession Act, 1956, deals with the rights of an unborn child that
is in the womb of the mother. The property rights of an unborn child are governed by the fact
that if the child who was in the womb at the time of the death of the person if subsequently
born alive shall have the same right to inherit as if he or she had been born before the death of
the property owner., and the property shall vest from the date of the death of the intestate. 6

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In Raj Bajrang Bahadur Singh vs. Thakurain Bakhtraj Kuer 7  Apex Court observed that
Section 13 controls Section 113 of Indian Succession Act, 1925 8 and both of them are to be
read together.
 TRANSFER OF IN FAVOUR OF AN UNBORN PERSON UNDER MUSLIM LAW:
 Section 2 of the Transfer of Property Act provides that nothing shall be deemed to affect
any of the law rule of Mohammedan law. 9 Thus, section 13 is not applicable to transfers made
by Muslim. However under Muslim law to a gift in favour of a person not in existence has
been held void. 10
CONCLUSION-
Thus, Property cannot be transferred directly to an Unborn person but property can be
transferred for the benefit of an Unborn person. Section 13 provides the property can be
transferred for the benefit of an unborn person unless the transfer for the Unborn person must
be preceded by life interest in favour of a person in existence at the time of transfer and only
absolute interest may be transferred in favour of Unborn.

1 Section 5 of the Transfer of Property
2 Prem Rajani, A Brief Write-Up On Transfer Of Property For The Benefit Of Unborn Person
And Rule Against Perpetuity available online at http://www.mondaq.com/india/x/366482/
3 Shivani Gupta, Transfer of Property to an Unborn Child, available online at
https://www.lawctopus.com/academike/transfer-property-unborn/
4 R.K.Sinha, Transfer of property Act, p.96, 16 th edn.2015
5 Girjesh Dutt V.  Data Din (AIR 1934 push 35).
6 Section 20 of the Hindu Succession Act, 1956
7 Raj Bajrang Bahadur Singh vs. Thakurain Bakhtraj Kuer AIR 1953 Supreme Court 7
8 Section 113 of Indian Succession Act

9 Section 2 of the Transfer of Property Act
10 Abdul Cadur v.  Turner (1884) 9 Bom. 158