Transfer of Property Act (TPA)
Transfer to an Unborn Person vs Gift to an Unborn Person: How the Same Child Is Reached by Different Instruments
A settlor, a donor and a testator may all wish to provide for a grandchild who has not yet been born, and each will be told something different. A settlement may be executed today, because section 13 supplies a route through a prior interest. A direct gift cannot, because a gift needs a donee in existence who accepts during the donor's lifetime. A will may be made today but speaks only from death, and fails if the intended taker is not in existence then. The common thread is that every instrument needs a taker in existence at the moment it operates — and the instruments operate at different moments.
Figure 1: Three instruments set against the moment of birth, and the position under Muslim law
1. The Starting Point
A gift is a species of transfer, so section 13 applies to a gift as much as to any other transfer. The difference between the two lies not in section 13 but in the additional requirements that Chapter VII imposes on a gift — principally that there be a donee capable of accepting, and that acceptance take place during the donor's lifetime.
The two provisions to hold side by side Section 13 — an interest created for the benefit of a person not in existence takes effect only if it is preceded by a prior interest created by the same transfer and extends to the whole remaining interest of the transferor. Section 122 — a gift is the transfer of certain existing property, made voluntarily and without consideration, by a donor to a donee, and 'must be accepted by or on behalf of the donee during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.' |
2. The Comparison
Point | Transfer or settlement for an unborn person | Gift to an unborn person |
|---|---|---|
Governing provisions | Sections 5, 13, 14 and 20 | Sections 122 and 123, read with sections 5, 13, 14 and 20 |
Direct disposition in favour of the unborn | Void — no living transferee under section 5 | Void — there is no donee in existence to accept |
Route that works | A prior interest in a living person, with the whole remaining interest to the unborn person | Exactly the same route: a gift creating a prior interest in a living donee, with the remainder to the unborn person |
Acceptance | Not a separate requirement of section 13 | Essential — by or on behalf of the donee, during the donor's lifetime and while he is capable of giving |
Consideration | May be present — a settlement may be made for value | None, by definition |
Form | As the transaction requires — sale, exchange, settlement | For immoveable property, a registered instrument attested by two witnesses — section 123 |
Revocability | As the instrument provides, subject to the Act | Only on the grounds in section 126 |
3. Why a Direct Gift Fails
- There is no donee. Section 122 requires a transfer to a donee; a person not in existence cannot be one.
- There can be no acceptance. Acceptance must be made by or on behalf of the donee during the lifetime of the donor. Nobody can accept on behalf of a person who does not exist, and if acceptance were postponed until birth the donor might be dead or incapable by then.
- And the gift would fail on section 13 in any event, since there would be no prior interest to precede it.
4. Bequests by Will
A will is not a transfer under this Act, but the same problem arises and the Indian Succession Act, 1925 answers it in nearly the same terms.
Provision | Effect |
|---|---|
Section 112, ISA | Where a bequest is made to a person by a particular description, and there is no person answering that description at the testator's death, the bequest is void — subject to the exception for a person in existence at the testator's death who answers the description at a later time |
Section 113, ISA | Where a bequest is made to a person not in existence at the testator's death, subject to a prior bequest, the later bequest is void unless it comprises the whole of the remaining interest of the testator — the testamentary counterpart of section 13 |
Section 114, ISA | The rule against perpetuity in testamentary form — the counterpart of section 14 |
A child in the womb | A child conceived before, and born alive after, the testator's death is treated as in existence and may take |
5. The Position Under Muslim Law
Muslim law is preserved at two points: the proviso to section 2 keeps Chapter II away from any rule of Muhammadan law, and section 129 withdraws Chapter VII entirely in favour of that law where gifts are concerned. The result is that a hiba in favour of an unborn person is governed by Muslim law, not by sections 13 and 122.
- A hiba to a person not in existence is void. The three essentials — declaration, acceptance and delivery of possession — presuppose a donee who exists and can accept and take possession.
- The child in the womb is the recognised exception. A gift to a child en ventre sa mère is valid if the child is born within the period the law allows, the rule commonly stated as six months from the date of the declaration.
- The device of successive life interests does not translate. Muslim law approaches limited interests and remainders differently from the Act, and the settlement structure that section 13 contemplates cannot simply be read across; a Muslim wishing to provide for unborn descendants ordinarily does so through a wakf.
6. A Practical Summary
What the client wants | What can be done |
|---|---|
To provide today for a grandchild not yet born, by deed | A settlement: a life interest to a living child, the whole remaining interest to the unborn grandchild, vesting within the perpetuity period |
To gift property outright to an unborn grandchild | Impossible as a direct gift; it must be recast as a settlement with a prior interest, or postponed until the child is born |
To gift property to a grandchild already conceived | Permissible — a child in the womb is treated as in existence, subject to live birth |
To leave property by will to grandchildren not yet born | Possible, but the bequest fails as to any grandchild not in existence at the testator's death — sections 112 and 113, ISA |
A Muslim donor wishing to benefit unborn descendants | Not by hiba, save for a child in the womb; the usual course is a wakf |
Retention aid Ask when the instrument speaks. A settlement speaks on execution, so the law lets it look ahead through a prior interest. A gift speaks on acceptance, and nobody can accept for a person who does not exist. A will speaks at death, and the taker must be there by then. |
7. Landmark Cases
📖 Sopher v. Administrator-General of Bengal, AIR 1944 PC 67 Held: The rule that an interest created for an unborn person must comprise the whole of the remaining interest applies to a bequest as it does to a transfer inter vivos, the corresponding provision of the Succession Act being in the same terms. Ratio: The whole-interest requirement applies to testamentary as well as to inter vivos dispositions. |
8. Related Topics and Provisions
- Transfer for the Benefit of an Unborn Person, Section 13 — the route that makes a settlement work
- Transfer to an Unborn Person, Sections 13, 14 and 20 — the complete scheme
- Sections 122 and 123, TPA — the definition of gift and the mode of making it
- Section 129, TPA — the saving for Muhammadan law in Chapter VII
- Sections 112, 113 and 114, Indian Succession Act, 1925 — bequests to persons not in existence
- Inter Vivos Transfer — the living-person requirement behind all three instruments