Transfer of Property Act (TPA)
Transfer for the Benefit of an Unborn Person under Section 13: Prior Interest, the Whole Remaining Interest, and Why a Direct Transfer Fails
Section 13 is a short section with two commands, and a settlement that disobeys either of them fails. The interest created for an unborn person must be preceded by a prior interest created by the same transfer, and it must extend to the whole of the remaining interest of the transferor. The first command follows from the requirement of a living transferee in section 5. The second is a policy of the Indian Act that has no exact counterpart in English law: the unborn person must be given everything, so that the property cannot be tied up through generation after generation of life estates.
Figure 1: The interest routed through a prior interest, and the direct transfer that has nothing to stand on
1. The Section
Section 13, TPA 'Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the 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.' |
2. The Essentials of a Valid Transfer for an Unborn Person
- There must be a transfer of property within section 5, made by a person competent under section 7.
- A prior interest must be created in favour of a person living at the date of the transfer. This is the pier on which the arrangement rests. It is usually a life estate, and it may be given to one person or to several successively, provided each is alive at the date of the transfer.
- Both interests must be created by the same transfer. The prior interest cannot be supplied by an earlier or a later instrument.
- The unborn person must take the whole of the remaining interest. Whatever is left in the transferor after the prior interest must go to him, absolutely.
- And the vesting must not be too remote — section 14, which is treated separately, caps the time within which the interest must vest.
3. The Prior Interest
The prior interest exists because the law needs somebody to hold the property in the interval. Three points are worth fixing.
Question | Answer |
|---|---|
What form may it take? | Usually a life estate; it may also be an interest for a term, or a trust in which trustees hold for a living beneficiary |
May there be more than one? | Yes — successive life interests may be given to any number of persons living at the date of the transfer |
May the prior interest be given to an unborn person? | No. Each prior holder must be in existence at the date of the transfer; an unborn person cannot take a life interest at all |
What if the prior interest fails? | Section 16 governs interests intended to take effect after or upon the failure of an interest that fails under section 13 or 14; and the general law applies where the prior interest fails for some other reason |
Must the unborn person be conceived at the date of the transfer? | No. He need not exist in any sense at that date; he need only come into existence before the prior interest ends |
4. The Whole Remaining Interest
This is the requirement students most often lose marks on. The unborn person must take everything the transferor has left. It follows that:
- A life interest to an unborn person is void. The interest does not extend to the whole remaining interest, and section 13 refuses to let it take effect.
- A limited or defeasible interest is equally bad, if it leaves anything in the transferor or provides for a gift over after the unborn person's death.
- An interest that must vest absolutely, though enjoyment is postponed, is good. Postponement of enjoyment is not the same as withholding part of the interest.
The authorities In Girjesh Dutt v. Datadin, AIR 1934 Oudh 35, a deed gave property to a woman for life, then to her male descendants absolutely, and failing them to her daughter for life with a gift over. The interest given to the unborn daughter was a life interest only; it did not extend to the whole remaining interest, and it failed under section 13 — and the subsequent gift failed with it under section 16. In Sopher v. Administrator-General of Bengal, AIR 1944 PC 67, a bequest to the children of the testator's sons, with a provision cutting down the interest on the death of a legatee leaving children, was held bad: the interest given was not the whole remaining interest, and the gift was void. |
5. Is a Direct Transfer to an Unborn Person Ever Valid?
No. A conveyance made directly in favour of a person not in existence conveys nothing, because section 5 requires a transferee who is a living person. Section 13 does not make a direct transfer good; it provides the only route by which an unborn person may be benefited at all. Two qualifications complete the picture.
- A child in the womb is treated as in existence. A child en ventre sa mère is regarded, for the purpose of taking property, as a person in existence, so a transfer in its favour is not a transfer to an unborn person and section 13 does not apply — provided the child is later born alive.
- A trust does not dispense with the requirement. Vesting the property in trustees does not remove the need for a prior beneficial interest in a living person; the trustees hold for someone, and that someone must exist.
6. Worked Examples
The settlement | Result |
|---|---|
To B, a living person, for life, and after his death to B's eldest son absolutely | Valid — prior interest in a living person, and the whole remaining interest to the unborn son |
To B for life, then to B's eldest son for life, then to C absolutely | The son's interest is void under section 13; C's interest fails with it under section 16 |
Directly to the unborn son of B | Void — no living transferee; section 5 |
To B for life, then to B's eldest son on his attaining eighteen, absolutely | Valid, provided the vesting satisfies section 14 |
To B for life, then to B's eldest son absolutely, but if he dies leaving no issue, then to D | The interest given to the unborn son is cut down and does not extend to the whole remaining interest; it fails |
To trustees for B for life, and after B's death for such of B's children as attain eighteen, absolutely | Valid — and section 15 saves the gift as regards those members of the class whose interests do not offend sections 13 and 14 |
Retention aid A pier, and the whole of the far bank. The interest must cross to the unborn person by way of a prior interest in someone living, and when it arrives it must be the entire remaining interest. Give him a life estate and you have built half a bridge. |
7. Landmark Cases
📖 Girjesh Dutt v. Datadin, AIR 1934 Oudh 35 Held: A deed gave property to a woman for life, then to her male descendants absolutely, and failing them to her daughter for life with a gift over. The interest given to the unborn daughter was a life interest only. It did not extend to the whole of the remaining interest of the transferor, and it failed; the subsequent gift failed with it. Ratio: An interest given to an unborn person must extend to the whole remaining interest of the transferor. |
📖 Sopher v. Administrator-General of Bengal, AIR 1944 PC 67 Held: A bequest to the children of the testator's sons, with a provision cutting down the interest on the death of a legatee leaving children, was held bad. The interest given was not the whole of the remaining interest, and the gift to the unborn persons therefore failed. Ratio: A defeasible or limited interest given to an unborn person does not satisfy the requirement of the whole remaining interest. |
8. Related Topics and Provisions
- Transfer to an Unborn Person, Sections 13, 14 and 20 — the complete scheme
- Rule Against Perpetuity, Section 14 — the time limit on vesting
- Section 20, TPA — vesting on birth
- Sections 15 and 16, TPA — class gifts, and interests dependent on an interest that fails
- Section 5, TPA — the living-person requirement
- Girjesh Dutt v. Datadin, AIR 1934 Oudh 35 and Sopher v. Administrator-General of Bengal, AIR 1944 PC 67