Transfer of Property For The Benefit of Unborn Child
General Rule
Section 5 of the transfer of property act provides 1882, provides transfer between the living
persons.
Exception-
There are certain section in this act which lay down certain rules regarding transfer for the
benefit of an unborn person.
Section 13Transfer for the benefit of unborn person-
Where, on a transfer of property, an interest therein created for the benefit of an person not in
the 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 transferor in the property.
Principle underlying Section 13
The principle underlying the rule is that a person disposing of property to another should not
handcuff the free disposition of that property in the hands of more generations than one.
The section provides that there should never be such a person as an unborn one takes for life,
because it is an obvious contingency.
Applicability
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 too a gift in favor of a person not in existence has been held void[1].
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[2].
