TABLE OF CONTENTS

__________________________________________________________

Acknowledgement....02
Research Methodology.....04-
05
A. Aims and Objectives.....04
B. Statement of Problem...04
C. Research Questions....04
D. Hypothesis.04
E. Method of Research....05
F. Mode of Citation...05

Table of Cases....06
Chapter I: Introduction......07
Chapter II: Transfer of Property for Unborn Person.10-16
A. Law of Property to Unborn Person..10
B. Transfer of Property to an Unborn Person..11
C. Exception allowed under English Law: Rule of Double Possibility..14
Chapter III: Transfer of Property for Unborn Person
A. Principle underlying Section 13.17
B. Section 14: Rule against Perpetuity...17
C. Analysis of Section 14..18
Chapter IV: Transfer of Property for Unborn Person
A. Rule under Hindu law and Muslim Law..19
B. Difference between Indian Law and English Law.19
C. Exceptions..20
D. Case laws & Judicial Interpretations21
Chapter V: Conclusion.................24
Bibliography25
Research Methodology

A. Aims and Objectives: The aims and objectives of this project are to understand the
concept of Transfer for benefit of unborn person. The basic aims and objective of the
researcher in taking up the topic is to understand the detail about how a property is
transferred for the benefit of unborn person and the ingredients in respect to it. The
research also highlights the differences in respect to personal law.

B. Statement of Problem: The Transfer of property act should also be applied in the
state of Bombay, Punjab and Delhi where the principles of justice, equity and good
conscience are still followed even after several amendments and enactment of the Act
since 1882. Secondly, the Transfer of Property Act for the benefit of unborn child is
not applicable under the Muslim law whereas it is applicable in both Hindu law and
English law.

C. Research Questions: The following questions in regard to the topic are as follows:

1. How can transfer of property be referred to other laws?

2. What are the ingredients in respect to Section 13 of the Act?

3. Is section 13 of the Transfer of Property Act similar to Sections 113 & 114 to the
Successions Act, 1925?

4. What are the essentials & general rules of perpetuity?

D. Hypothesis: This research work is an attempt to understand the transfer of property

for the benefit of unborn person and to know the ingredient and to know the
difference between Transfer of Property Act, 1882 and other laws.
E. Research Methodology: The research methodology in the concerned research clearly
reflects Doctrinal Research. Various books, articles and journals were used to
carefully frame the structure of this research.

F. Mode of Citation
A uniform Blue Book Mode of citation is to be adopted throughout the project.
Table of Cases

Ardeshir v. Dadabhoy AIR 1945 Bom. 395

Devaru Ganapathi Bhai v. Prabhakar Ganapathi Bhai (2004) 2 SCC 504

Girijesh Dutt v. Data Din AIR 1934 Oudh 35 : 147 I.C. 991

IJV Satyanarayana v. Pyboyina Manikyan AIR 1926 All 283

Ram Newaz v. Nankoo AIR 1926 All 283

Sopher v. Administrator General of Bengal AIR 1944 PC 67

Chapter I: Introduction

BACKGROUND

In India, the personal laws governed the transfer of property assisted by orders of Courts
under Civil Procedure Code before the Transfer of Property Act, 1882 came into existence.
Transfer of movable goods was regulated to an extent by the Indian Contract Act, 1872. For
transfer of immovable property, the Anglo-Indian courts often turned to principles of Justice,
Equity and Good Conscience as it prevailed in England at the time. This rarely did any good
due to the vast differences in customs and society of the two countries. Of course the rapidly
growing commerce and infrastructure in the late nineteenth century lead to more conflicts
even in business. Thus, an immediate need was felt for a clear and pragmatic law regarding
property and transfers suited to India and its peculiar problems as well as to take care of the
potential economic problems. The task of drafting such legislation fell upon the First Law
Commission and was later referred to the Second Law Commission.

THE ACT

A Bill, finally presented to the Legislative Council, became a law on the 17th of February
1882 and came into force from 1st July of the same year. The Transfer of Property Act, 1882
mainly deals with transfer of immovable property. It does not apply to transfers by the
operation of law such as transfer of immovable property necessitated by Order of Court for
insolvency or forfeiture among others. The 137 sections contained within have been divided
into 8 chapters.

Interestingly, nowhere does the Act define What is a transfer of property. But it does define
transfer as a standalone in Section 5.
OBJECTIVES

The Transfer of Property Act, 1882 (hereinafter referred to as the T P Act, 1882) was
intended to define and amend the existing laws and not to introduce any new principle. It
applies only to voluntary transfers. The following may be enumerated as the objectives of the
Act:

a) As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the law
relating to transfer of property by the acts of the parties.

b) The Act provides a clear, systematic and uniform law for the transfer of immovable
property.

c) The Act completes the Code of Contract since it is an enacted law for transfers that take
place in furtherance of a contract.

d) With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel to the
existing laws of testamentary and intestate transfers.

e) The Act is not exhaustive and provides scope to apply the principles of Justice, Equity
and Good Conscience if a particular case is not governed by any provision of law.

SCOPE

Since the T P Act, 1882 is not a complete code of transfer of property; we can say its scope is
limited. The Act does not apply to all the transfers taking place in India.

a) Limitation on Transfer: The Act applies to transfer by the act of parties and not by
application of law. Thus, its operations are limited to transfers by act of parties only except in
a few cases saved by Section 2 of the Act.

b) Not Exhaustive: There are various kinds of property and various modes of transfer of
property. The Act does not incorporate rules for all modes of transfer in existence. The Act
does not even claim to be a complete code as apparent from omission of the term
consolidate from its Preamble.

c) Transfer of Immovable Property: The Act mainly deals with transfer of immovable
properties only.
d) Exemption of Muslim Law: In case of a conflict between the T P Act, 1882 and rules of
Muslim Law, the latter will prevail. Section 2 of the Act does not affect inconsistent rules of
Muslim Law. Thus, a settlement made in perpetuity for the benefit of descendants of the
settler is a valid wakf (charitable gift) wherein there is an ultimate gift in favor of a charity.

e) Exemption of Rights and Incidents: Certain incidents of a contract or the essential

nature of property are exemption from the operation of the Act by Section 2. The Act also
saves certain property rights. For example, the right to partition of immovable property is an
incident of property but this right is not affected by the provisions of the T P Act, 1882.

Life, liberty, and property do not exist because men have made laws. On the contrary, it was
the fact that life, liberty, and property existed beforehand that caused men to make laws in the
first place. ~ Frederic Bastiat

By its very existence, society mandates interaction, exchange or transfer. A property,

movable or immovable, is transferred from one person to another under various different
situations and circumstances and for different values. The transfer may be a gift, an
inheritance or an asset acquired by paying full value.

When a movable property is transferred inter-vivos (between two living persons), Sales of
Goods Act, 1930 comes into play. When an immovable property is transferred from living
person to living person(s), the Transfer of Property Act, 1882 comes into play. In case, the
property is transferred from a dead person to a living person(s), the law applied will be the
Law of succession. Should a person die without leaving a will (intestate), the law of intestate
succession is applicable and in cases where a person dies leaving a will, the law of
testamentary succession is applicable.1

1
https://kanwarn.wordpress.com/2010/08/27/introduction-to-transfer-of-property-act-1882/ last visited at
14.05.2017 at 7:30 pm.
CHAPTER 2:

2.1 THE LAW OF PROPERTY TO UNBORN PERSON

There is a fiction that a child en ventre sa mere( in mothers womb) is a person in being for
the purpose of (1) acquisition of property by the child itself, or (2) being a life chosen to form
part of the period in the rule against perpetuities. The principle is well settled now, although
the older authorities show some disagreement. In (1), the basis of the rule is not that in a gift
to children the natural or ordinary meaning of children is such as to include a
posthumous child, but that an artificial sense must be given to the word, because the
potential existence of such a child places it plainly within the reason and motive of the gift;
this is, of course, assuming that the donor has not expressed or implied in the document an
intention to confine the gift to children living at the date at which the gift takes effect2. To put
the matter in another way, if the donor had thought about it at all3, he would almost certainly
have said that he wished to include his posthumous children among the beneficiaries. There4
is no fiction as to his intention5, but the law can give effect to that intention only by the
fiction that the child en ventre sa mere (in mothers womb) is actually born, provided it is in
fact subsequently born alive. The fiction6 is applicable in (1) only if it is for the benefit of the
child, not where it may be detrimental to him. But in (2), i.e., in connection with the
perpetuity rule, the fiction holds whether it be for the advantage of the unborn child or not.
Even with respect to the benefit in (1), it must be for the childs direct benefit7.

2
P. H. Winfield,The University of Toronto Law Journal , Vol. 4, No. 2 (1942) , pp. 278-295
3
PH Winfield U. Toronto LJ, 1941
4
RR Powell, PJ Rohan 1949
5
JT Noonan Jr Neb. L. Rev., 1984
6
EH Rabin 1974
7
WB Leach Harvard Law Review, 1938
2.2 TRANSFER OF PROPERTY TO UNBORN PERSON

UNBORN PERSON DEFINED

A person not in existence has a specific reference to one who may be born in the future but
does not have a current existence. Even though a child in womb is literally not a person in
existence, but has been so treated under both Hindu Law and English Law.

Section 13 of Transfer of property Act read as follows:

Where, on a transfer of property, an interest therein is created for the benefit of a person not
in 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 transfer in the property.

Section 13 TPA8, gives effect to the general rule that a transfer can be effected only between
living persons. There cannot be a direct transfer to a person who is not in existence or is
unborn. This is the reason why section 13 uses the expression transfer for the benefit of and
not transfer to unborn person. A child in the mothers womb is considered to be competent
transferee. Therefore, the property can be transferred to a child in mothers womb because the
child exists at that time but not to an unborn person who does not even exist in mothers
womb. Every transfer of property involves transfer of interest9. As soon as the property is
transferred, the transferor is divested of that interest and the interest is vested in the
transferee10. For vesting of interest, therefore, it is necessary that the transferee must be in
existence. Otherwise the interest will remain in abeyance till the transferee comes into
existence11. 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.12

8
Where, on a transfer of property, an interest therein is created for the benefit of a person not in 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 transfer in the
property.
9
M Bloom Washington Law Review, 1987
10
PH WlNFIELD Australian Law Journal, 1935
11
EF Albertsworth California Law Review, 1922
12
AM Hess Tenn. L. Rev., 1994
2.3 PRE-REQUISITES FOR A VALID TRANSFER OF PROPERTY TO THE
UNBORN PERSON

Section 13 provides a mechanism for a specific mechanism for transferring property validly
for the benefit of unborn persons. The procedure as follows:

1) The person intending to transfer the property for the benefit of an unborn person should
first create a life interest in favor of a living person and after it, an absolute interest in favor
of the unborn person.

2) Till the person, in whose favor a life interest is created is alive, he would hold the
possession of the property, enjoy its usufruct i.e. enjoyment the property.

3) During his lifetime if the person, (who on the day of creation of the life estate was
unborn) is born, the title of the property would immediately vest in him, but he will get the
possession of the property only on the death of the life holder.

Creation of a Prior Life Interest

As far as the creation of a prior interest is concerned, first, the property is given for life to a
living person. It is not necessary that life interest should be created in favor of only one living
person. The transfer is competent to create successive life interests in favor of several living
persons at the same time.

Illustration: A transfers life interest in a property to B i.e the power to possess, enjoy and use
the income of the property, not absolute ownership. And then after

B, A transfers absolute interest to Bs unborn child, C.

Girijesh Dutt v. Data Din13

A, owner of X property, gifted it to her nephew Cs daughter as life interest stating that if she
has a male descendant, he will have absolute interest in the property. And if female, she will
have limited or life interest in the property. After her, property will absolutely pass to As

13
Girijesh Dutt v. Data Din AIR 1934 Oudh 35 : 147 I.C. 991.
nephew C. Nephews daughter died issueless. It was held that the property will revert back to
A or his heirs as the gift made to C has failed because the moment limited interest is given to
an unborn person, it will be void. Therefore, the transaction failed there and then. Life
interest given priorly to a living person is valid (As nephews daughter) but the transaction
involving limited interest to the unborn is void.

No Life Interest for an Unborn Person

As far as the unborn is concerned, no life interest can be created for the benefit of an unborn
person. Section 13, specifically prohibits that, by the use of the expression, 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. It means that the transfer must convey
to the unborn person, whatever interest he had in the property, without retaining anything
with him. Thus, no limited estate can be conferred for the benefit of the unborn person. If
limited interest in the property is settled for him, the same would be void.
2.4 EXCEPTION ALLOWED UNDER ENGLISH LAW: RULE OF DOUBLE
POSSIBILITY

Section 13 allows transfer of only an absolute interest to the unborn person. But under
English Law the situation is not the same. The rule followed under English Law is the
DOCTRINE OF DOUBLE POSSIBILITY or the OLD RULE AGAINST PERPETUITIES
(Whitbys Rule) according to which first unborn child is allowed to have limited interest in
the property under common law. But the second unborn must have an absolute interest.
Therefore, the second illustration mentioned under Section 13 will be valid under English
Law whereas void from the beginning in India, because under Indian Law, no limited estate
can be transferred in favour of unborn child.

Whitbys rule was laid down in the case of Whitby v. Mitchell14. It can be stated as follows:

If an interest in the reality is given to an unborn person, any remainder to his issue is void,
together with all subsequent limitations. Thus, if land was limited to A, a bachelor for life,
remainder to his son for life and then to As sons son in fee simple, the remainder to the
grandson would be void under this rule.

If no child is born, property will revert back to the transferor or his legal heirs. First child,
even if born for a minute and dies, would get limited interest and pass on absolute interest to
the child who is born next. This explained with the help of the following situation:

A transfers property to Bs unborn children. Limited interest to first unborn and absolute
interest to the second unborn. If first unborn is not born, the second unborn will not get
absolute but limited interest as the first unborn child and any child born after that would get
absolute interest in the property as second unborn. And if the second unborn is not born, the
first unborn would still not get the absolute interest in the property, the property will revert
back to transferor or his legal heirs after the life interest of first unborn expires.

14
The Yale Law Journal Vol. 26, No. 4 (Feb., 1917), pp. 257-269
Similarity and difference between Section 13 of The Transfer of Property
Act and Section 113 of The Successions Act.

Section 13 of Transfer of Property Act, 1882 is similar to Section 113 of Indian Succession
Act, 1925 except that Section 113 of the Indian Succession Act, 1925 is applicable only to the
concept of wills whereas Section 13 of Transfer of Property Act, 1882 applies to any mode of
transfer of property to the unborn person.

Section 113 of the Indian Succession Act, 1925 provides that:

Bequest to person not in existence at testators death subject to prior bequest.Where a

bequest is made to a person not in existence at the time of the testators death, subject to a
prior bequest contained in the Will, the later bequest shall be void, unless it comprises the
whole of the remaining interest of the testator in the thing bequeathed.

Illustrations:

Property is bequeathed to A for his life, and after his death to his eldest son for life, and after
the death of the latter to his eldest son. At the time of the testators death, A has no son. Here
the bequest to As eldest son is a bequest to a person not in existence at the testators death. It
is not a bequest of the whole interest that remains to the testator. The bequest to As eldest
son for his life is void.

A fund is bequeathed to A for his life, and after his death to his daughters. A survives the
testator. A has daughters some of whom were not in existence at the testators death. The
bequest to As daughters comprises the whole interest that remains to the testator in the thing
bequeathed. The bequest to As daughters is valid.

A fund is bequeathed to A for his life, and after his death to his daughters, with a direction
that, if any of them marries under the age of eighteen, her portion shall be settled so that it
may belong to herself for life and may be divisible among her children after her death.

A has no daughters living at the time of the testators death, but has daughters born
afterwards who survive him. Here the direction for a settlement has the effect in the case of
each daughter who marries under eighteen of substituting for the absolute bequest to her a
bequest to her merely for her life; that is to say, a bequest to a person not in existence at the
time of the testators death of something which is less than the whole interest that remains to
the testator in the thing bequeathed. The direction to settle the fund is void.

A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall
be settled upon his daughters, so that the portion of each daughter may belong to herself for
life, and may be divided among her children after death. B has no daughter living at the time
of the testators death. In this case the only bequest to the daughters of B is contained in the
direction to settle the fund, and this direction amounts to a bequest to persons not yet born, of
a life-interest in the fund, that is to say, of something which is less than the whole interest that
remains to the testator in the thing bequeathed. The direction to settle the fund upon the
daughters of B is void.
CHAPTER 3

3.1 PRINCIPLE UNDERLYING SECTION 13:

The rule is that a person disposing of property to another should not fetter the free disposition
of that property in the hands of more generations than one (by virtue of the condition that life
interest cannot be created in favour of an unborn person). The rule is quite distinct from the
rule against perpetuity although the effect of these two rules is often the same.

3.2 SECTION 14: RULE AGAINST PERPETUITY.

Section 14 of TPA provides that: "No transfer of property can operate to create an interest
which is to take effect after the life time of one or more persons living at the date of such
transfer, and the minority of some person who shall be in existence at the expiration of that
period, and to whom, if he attains full age, the interest created is to belong."

Perpetuity means an uncertain period or time or indefinite period. There are people who want
to retain their property in their own families from generations to generations. This will be a
loss to the society because it will be deprived of any benefit arising out of that property15.

Rule of perpetuity is basically an extension of Section 13. Free flow of property is a major
component of public policy. Perpetuity is a limitation which places the property forever out
of reach of the exercise of power of alienation. Section 14 prevents property from being tied
up forever since law believes in alienation rahter than accumulation.

3.3 ANALYSIS OF SECTION 14:

The vesting of property absolutely cannot be postponed beyond the lifetime of any one or
more persons living at the date of transfer i.e no interval between the termination of the
precedent interest of the living person and the vesting of the interest in the unborn person.

Section 13 does not specify age until which unborn child gets interest in the property. Section
14 specifies age of majority for the same.
15
J Dukeminier UCLA L. Rev., 1986
MAXIMUM REMOTENESS OF INTEREST THAT CAN BE CREATED: As provided
above, according to Section 20 of the Act, the unborn child, after coming into worldly
existence, acquires absolute interest in the property so transferred to him (even if he takes
birth for just five minutes). However, maximum remoteness of such interest of the unborn in
the property that can be created by the transferor is uptil the age of majority i.e. 18 years,
after which the interest becomes vested, even if an age more than 18 years is mentioned in the
agreement by the transferor.

Section 14 allows delay of the vesting of interest in the unborn person (who was not born at
the date of transfer of interest) during his minority period i.e. interest vested beyond 18 years
of age would be void. Thus, the maximum remoteness of interest (absolute interest) that can
be created in an unborn child is till the age of majority i.e. 18 years. After 18 years, the
interest would become vested.

CHAPTER 4:

4.1 RULE UNDER HINDU LAW AND MUSLIM LAW

 Prior to the enactment of the TP Act, the rule under Hindu and Muslim law was that a gift to
a person who was not inexistence, was void16. The position under Muslim law continues to be
the same17. However, for Hindus, the rule was modified by series of enactments18 to bring it
conformity with sec.13 of the TP Act Parallel provisions have also been provided under
Indian Succession Act 192519, which permits bequest for the benefit of unborn person.
Section 113 of India Succession Act 1925(IS Act), applies to legacies created for the person
not in existence and contain a provision almost identical to sec.13 of the TP Act.

4.2 DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW

1. The minority period in India is 18 years whereas it is 21 years under English law.
2. The period of gestation should be an actual period under Indian Law but it is a gross period
under English law.
3. Under Indian law, property should be given absolutely to the unborn person whereas in
English law, need not be absolutely given.
4. The unborn person must come into existence before the death of the last life estate holder as
per Indian law whereas he must come into existence within 21 years of the death of the last
life estate holder in case of English law.

4.3 EXCEPTIONS

1. Transfer for public benefit. Where property is transferred for the benefit of the people in
general, then it is not void under this rule. e.g. for the advancement of knowledge, religion,
health, commerce or anything beneficial to mankind.
2. Covenants of Redemption. This rule does not offend the covenants of redemption in
mortgage.
3. Personal Agreements. Agreements that do not create any interest in the property are not
affected by this rule. This rule applies only to transfers where there i transfer of interest.
4. Pre-emption. In this there is an option of purchasing a land and theres no question of any
kind of interest in the property, so this rule does not apply.

16
L Carroll Islamic Law and Society, 2001 Springer
17
R Maina, VW Muchai, SBO Gutto Colum. Hum. Rts. L. Rev., 1976
18
The Hindu Disposition of Property Act 1916: the Madras Act of 1914. Both these Acts were amended by the
Act of 1929.
19
See the Indian Succession Act 1925, ss 113, 114, 115 and 116
5. Perpetual Lease. It is not applicable to the contracts of perpetual renewal of leases.
6. This rule is not applicable to mortgages because there is no creation of future interest

4.4 Case laws

Sopher v. Administrator General of Bengal 20

In the case of Sopher v Administrator General of Bengal a testator directed that his property
was to be divided after the death of his wife into as many parts as there shall be children of
his, living at his death or who shall have pre-deceased leaving issue living at his death. The
income of each share was to be paid to each child for life and thereafter to the grand-children
until they attained the age of 18, when alone the grand-children were to be absolutely entitled
to the property. The bequest to the grand-children was held to be void by Privy Council as it
was hit by sec.113 of the Indian Succession Act which corresponds to sec.13 of Transfer of
property Act. Their Lordships of the Privy Council observed that: If under a bequest in the
circumstances mentioned in sec.113, there was a possibility of the interest given to the
beneficiary being defeated either by a contingency or by a clause of a defeasance, the
beneficiary under the later bequest did not receive the interest bequeathed in the same
unfettered form as that in which the testator held it and that the bequest to him did not
therefore, comprise the whole of the remaining interest of testator in the thing bequeathed.

Girjish Dutt v. Data Din 21

A made a gift of her property to B for her life and then to her sons absolute. B had no child
on the date of execution of the gift. The deed further provided that in case B had only
daughters, then the property would go to such daughters but only for their life. In case B had
no child then after the death of B, the property was to go absolutely to X. Here the gift to
unborn daughters with no powers of alienation was held to be invalid.

Devaru Ganapathi Bhai v. Prabhakar Ganapathi Bhai 22

20
Sopher v. Administrator General of Bengal AIR 1944 PC 67
21
Girjish Dutt v. Data Din AIR 1934 Oudh 35
22
Devaru Ganapathi Bhai v. Prabhakar Ganapathi Bhai (2004) 2 SCC 504
Parties are brothers. The appellant/defendant is the elder brother. The respondent/plaintiff is
the younger brother. The suit for partition and possession filed by the respondent claiming
one-half share in suit properties has been decreed by the trial court. The first appeal of the
appellant has been dismissed by the High Court by the impugned judgment.

The basis of claim in the suit was the gift deed dated 9th September, 1947 executed by Smt.
Mahadevi, younger sister of Ganapathi, father of the parties. When gift deed was executed,
the appellant was a minor aged 13 years. At that time, respondent was not born. In the year
1936, the suit properties were sold by Ganapathi to his younger sister Mahadevi. The sale
was effected due to some helpless conditions of Ganapathi. Mahadevi was issueless. She
enjoyed properties from the year 1936 up to execution of the gift deed. The same properties
were gifted under the gift deed in question. The dispute in this appeal is, however, restricted
to one gifted property. Hence here Section 13 has no applicability to the facts and
circumstances of the present case. In the present case, the donor gifted the property in favor
of the appellant, then living, and also stipulated that if other male children are later born to
her brother they shall be joint holders with the appellant. Such a stipulation is not hit
by Section 13 of the Act. Creation of such a right is permissible under Section 20 of the Act.
The respondent, thus, became entitled to the property on his birth.

Ardeshir v. Dadabhoy23
D was a settler who made a settlement. According to the terms of settlement, D was to get
during life, one-third each was to go to his sons A and R. After Ds death, the trust property
was to be divided into two equal parts. The net income of each property was to be given to A
and R for life and after their death to the sons of each absolutely. If A and R were each to
pre-deceased D without male issue, the trust were to determine and the trust property were to
the settler absolutely. The settler then took power to revoke or vary the settlement in whole or
in part of his own benefit. It was held that Rs son who was not born either at the date of
settlement or his death did not take any vested interest and the gift to him was invalid. As
son who was alive at these dates did not also take a vested interest.
Ram Newaz v. Nankoo24

23
Ardeshir v. Dadabhoy AIR 1945 Bom. 395
24
Ram Newaz v. Nankoo AIR 1926 All 283
In 1884 Ram Charan appears to have been in difficulties and he had a 9-pie odd share in a
certain village. He executed a sale-deed which has had to be construed in all the Courts and
on the proper construction of that sale-deed the rights of the parties depend. The plaintiffs are
the reversioners, but the defendants are the purchasers of whatever rights the vendee had. The
real point is whether the sale was an out-and-out sale of the 9-pie odd share or whether it was
a sale by the vendor of the 9-pie odd share minus the 2 bighas cow in dispute.
While examining the transfer of property u/s 14 TPA courts look at the possible events acc to
the terms of the deed & nt the actual events on the date of the trnsfr - in deciding the question
of remoteness, regard must be had to the possible & nt to the actual events - ram charan sold
his agricultural land minus 2 Bighas but the sale deed hd a condition that a part of the
property(2 bigha) ws to remain with him, his son and his lineal descendent who had no
power to alienate his property - if none of the lineal descendent were to be alive then the 2
bigha to go to the vendees or his heirs - after the death of ram charan issueless son a dispute
arose between the vendees & the reversioners of ram charan - deed of ram charan created a
life estate favor of himself & his son & also their unborn descendents - this was in violation
of S13 as only absolute interest in the property can be transferred for the benefit of an unborn
person(only one level of unborn person) - court examined terms of the deed that in according
to the condition that the land must have remained in hands of Ram Charan fr 100s of years -
such condition rendered void by law and the reserved land decreed to reversioner of Ram
Newaz.

IJV Satyanarayana v. Pyboyina Manikyan25

One P. Muthaiah had a son Ganga Raju and executed a settlement deed in respect of the suit
property conferring life estate on his son and after his death to the sons of Ganga Raju to be
borne absolutely. Ganga Raju in his turn executed a relinquishment deed of his life estate got
under Ex. A-3 in favour of his father Muthaiah on 31-8-1934 under Ex. A-4. Ganga Raju died
in 1971 leaving behind three sons viz., rama Rao, Lakshmanarao and Muthaiah. The first son
Ramarao was born in the year 1942 the plaintiff happened to be the auction purchaser of the
one-third share of Muthaiah under a sale certificate Ex. A-1 in a Court auction in execution of
the decree. The plaintiff also purchased the share of lakshmanarao from his wife
Raghavamma under a registered sale deed datedt. 24-2-1972 as per Ex. A-2 and he filed the

25
IJV Satyanarayana v. Pyboyina Manikyan AIR 1926 All 283
present suit for the recovery of this two- thirds share. The 1st defendant is the son of
Muthaiah who resisted the suit. The other defendants are in possession of the property and the
suit is contested by the 1st defendant contending that the relinquishment deed in favour of
ganga Raju (sic) executed a relinquishment deed long before the birth of his sons and hence
the gift in favour of the unborn sons has failed. Court set aside the decree and judgements and
allowed the appeal.

Conclusion
A child in womb is literally not a person in existence, but has been so treated under both
Hindu Law and English Law child in its mothers 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 provides that the property cannot transfer directly to an unborn person but it can
be transferred for the benefit of an unborn person. Hence in this way the property can be
transferred to the one who is even born. Also as the property should not be kept in abeyance
hence in the course of the person being born, that property should be handled by someone.
Thus 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. Hence when such concerned person is
born and attains the age of majority he enjoys life interest absolutely and would be a valid
owner of the property. But if any such interest created for the benefit of person under section
13 and 14 fails to be created, then in that case such interest created in the favor of such person
and such transaction also fails under section 16 of the TPA. But one thing most important is
that till he attains the age of the majority, would simply enjoy vested interest and would not
be entitled to enjoyment immediately after the birth.

Hence, Section 14 of The Transfer of Property Act supplements section 13 of The Transfer of
Property Act and thus, it is pertinent to note that when an interest in any property is intended
to be transferred in favour of an unborn person, sections 13 and 14 of The Transfer of
Property Act are required to be read together and the provisions contained thereunder are
required to be duly complied with, in order to give effect to the intended transfer in favour of
such unborn person.

BIBLIOGRAPHY
PRIMARY SOURCES
STATUTES:
Transfer of Property Act, 1882.
The Indian Succession Act, 1925

SECONDARY SOURCES
I. ARTICLES:
R Maina, VW Muchai, SBO Gutto Colum. Human. Rights. L. Rev., 1976
L Carroll Islamic Law and Society, 2001 Springer
I PG Haskell NcL Rev., 1987
M Bloom Washington Law Review, 1987
PH Winfield Australian Law Journal, 1935
EF Albertsworth California Law Review, 1922
AM Hess Tenn. L. Rev., 1994
J Dukeminier UCLA L. Rev., 1986
The University of Toronto Law Journal , Vol. 4, No. 2 (1942)

II. BOOKS:
Dr. G.C.Bharuka, Mulla Transfer of Property Act 1882, 2006, Lexis Nexis
Butterworths, 10th ed.
Dr. Avtar Singh, Transfer of Property Act, Universal Law Publishing Co., 2nd
ed. 2009,
Poonam Pradhan Saxena, Property Law, , Lexis Nexis Butterworths Wadhwa,
1st ed.2006

III. WEBSITES:

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1882/ last visited at 14.05.2017 at 7:30 pm.