transfer of property for the benefit of unborn person

TRANSFER OF PROPERTY FOR THE BENEFIT OF UNBORN PERSON 

The provision of transfer of property Act,1882 in general do not allow the transfer of property directly to an unborn but for the benefit of unborn.

Although the TPA,1882 talks about transfer of property between living persons (inter vivos) but section 13 of TPA,1882 provides an exception to the rule.It provides that a property can be transferred for the benefit of a person who does not have current existence but has a specific reference to one and who may be born in the future is considered to be an Unborn person.

The essential conditions to transfer property for the benefit of an unborn person are:-

A).NO DIRECT TRANSFER :- A transfer cannot be directly made to an unborn person.Such a transfer can only be brought into existence by the mechanism of trusts.It is a principle of property law that every property must have an owner. Accordingly, if a transfer of property is made to an unborn, it will lead to a scenario wherein the property will remain without an owner from the date of transfer of property till the date the unborn person comes into existence.

B).PRIOR INTEREST :- If the circumstances are such that there is no creation of trust, then in that case the estate must in some other person between the date of transfer and the date when the unborn person comes into existence.In simpler words, we can say that the interest in favour of an unborn person must always be preceded by a prior interest created in favour of a living person.

C).ABSOLUTE INTEREST :- The entire property must be transferred to the unborn person.The transfer to an unborn person must absolute and there should be no further transfer from him to any other person. It states that the absolute interest in the property must be transferred at a go in the name of the unborn child and not the partial interest. There can be no transfer regarding limited interest in the property. This means that the whole of the interest in the property has to be transferred at a single time to unborn person.

Conclusively:- It is provided by section 13 of the TPA,1882 that the property cannot be transferred directly to the one who is not born but can be done for his/her benefit by lying down two conditions  Such as :-

a) There must be the creation of a prior life interest in favour of a person who exist on the date of tranfer.

b) There must be a transfer of absolute and not partial interest in favour of that unborn person.

Thus, The transfer of immovable property to unborn person can take effect only according to the provision discussed above.Else the transfer will be declared void. Moreover, according to rule against perpetuity mentioned under section 14 of TPA,1882 maximum period for which a property can be transferred for the benefit of unborn is Life of the living person ➕ minority period of an unborn person after which transfer is void.

         

      PUBLISHED BY 

                          Ritik Nagpal

                   3rd yr B.A.LL.B(Hons)

C.R. LAW COLLEGE,HISAR(HARYANA)