DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

NAME OF THE PROJECT TOPIC

Section 13& 14 of TPA

SUBJECT

Transfer of property Act

NAME OF THE FACULTY

Prof: Jogi Naidu

NAME OF THE STUDENT

Kranthi Kiran. T

Regd No. 18LLB127

Sec: B

4rth Semester

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 Table of Contents

Acknowledgement…………………………………………………..3

Abstract……………………………………………………………….4

Introduction…………………………………………………………..5

Section13 of TPA

 Transfer of Property to Unborn…………………………………….6

 Prerequisites for a valid transfer of property to an unborn child………7
 Position in India……………………………………………………………8
 Applicability………………………………………………………………9
 Case Laws………………………………………………………………9-11

Section 14 of TPA

Rule against Perpetuity…………………………………………………….12

Origin and Object……………………………………………………………12-13

Following conditions must be satisfied to attract Section 14……………….13

Analysis……………………………………………………………………….13-14

Extent of Perpetuity Period………………………………………………….14

Other Relevant Provisions…………………………………………………14-15

Explanation…………………………………………………………………15

Difference between English & Indian Law………………………………15

Exceptions……………………………………………………………………….16

Rule under Hindu Law and Muslim Law……………………………………16

Conclusion………………………………………………………………………17

Bibliography………………………………………………………………...18-19

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 ACKNOWLEDGEMENT

I heart fully express my special thanks to my subject teacher Prof: Jogi Naidu Sir for giving me
the opportunity to do the project on the topics Section 13&14 of TPA. It helped me to know
many things and gain knowledge. I also thank her for guiding me throughout the project and
responding for my doubts regarding the project.

I would also like to thank my University ‘Damodaram Sanjivayya National Law University’ for
providing me with all the required materials for the completion of my project and I also came to
know many new things.

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 ABSTRACT

Introduction
The rules with respect to the transfer of property for the benefit of unborn person and rule against
perpetuity are mainly governed and operated under section 13 and section 14 of The Transfer of
Property Act, 1882 has given a headache to the lawyers of every age across the country. This is
often described as one of the most complicated legal rules ever.

Here unborn child refers to the person who is non-existence as of now but will come into
existence in future. A child in a mother’s womb is not a person in existence. Although it has been
treated under both the Hindu and Muslim law.

TRANSFER OF PROPERTY TO AN UNBORN CHILD

Section 13 of the 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.”

The transfer of property takes places between two persons living which means that there cannot
be a transfer to a person who is not born yet or not in existence. This is the reason why section 13
of TOPA uses the term ‘for the benefit of’ and not transfer ‘to’ unborn person.

A child in a mother’s womb is considered to be a person competent of the transfer. Therefore a

property can be transferred to a child in her mother’s womb because the child exists but not to an
unborn person who does not even exists in the womb of her mother.

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With every transfer of property, there is a transfer of interest which states that as soon as the
property gets transferred in the name of transferee the interest is vested in the transferee.
Therefore it is necessary that the transferee should be in existence when the transfer is made.
This is against the very concept of an interest.

For a transfer of property for the benefit of the unborn person two conditions are necessary to be
fulfilled:

1. Absolute interest should be transferred in the favor of the unborn person, and
2. Prior life interest must be created in favor of a person in existence at the date of
transfer.

Section 14 of TPA
RULE AGAINST PERPETUITY
Rule against perpetuity has been dealt under section 14 of Transfer of Property Act, 1882.
Perpetuity simply means “indefinite Period”, so this rule is against a transfer which makes a
property inalienable for an indefinite period.

Object
It is important to ensure free and active circulation of property both for trade and commerce as
well as for the betterment of the property. 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 property. Free and frequent circulation is
important and the policy of the law is to prevent the creation of such perpetuity.

Thus, the object of section 14 is to see that the property is not tied- up and to prevent creation of
perpetuity.

INTRODUCTION
UNBORN PERSON: He is one who is not in existence as of now or who will come into
existence in future at any time or who is in the womb of the mother. He is basically, a person not
yet born.

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STATUS OF UNBORN CHILD

There is nothing in the law to prevent a man from owning property before he is born. His
ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the
less a real and present ownership. A child in its mother’s womb is for many purposes regarded
by a legal fiction as already born; in accordance with the maxim nasciturus pro jam nato
habetur.

RIGHTS OF UNBORN:

 According to the Vienna Convention on the Law of Treaties, the rule regarding the
protection of life before birth could be considered as 'jus cogens' (final norm of general
international law).
 According to Fleming and Hains: "The right to life of all human beings has the nature of
an intransgressible norm already contained in the Universal Declaration of Human Rights
1948, the International Covenant on Civil and Political Rights 1966 and the Declaration
of the Rights of the Child 1959. Under international law, the unborn child is protected.
 Explicit protection is extended to the unborn child in the International Covenant on Civil
and Political Rights 1966, and in the Convention on the Prevention and Punishment of
the Crime of Genocide 1948.
 The text (of the Universal Declaration of Human Rights 1948) clearly states that
everyone has the right to life, and that what is meant by everyone is 'every member of the
human family' - that is all human beings. Here is the nub of the matter."

TRANSFER OF PROPERTY TO UNBORN

A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in
accordance with the maxim nasciturus pro jam nato habetur; which means that the legal capacity
of the natus is sometimes determined by referring back to a time when he was still nasciturus
(unborn). Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person
in being a life chosen to form part of the period in the rule against perpetuities.

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TRANSFER OF PROPERTY ACT – SECTION 13

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. Sec 13 TPA

Prior Interest: Prior interest is not affected by reason of the subsequent interest being rendered
void by this rule. It is neither enlarged or extinguished (Mohamed Shah v. Official Trustee of
Bengal, 190936 CAL 431).

Limited Interest: Limited interest cannot be created for the benefit of an unborn person even
though it is subject to a prior interest in favor of a living person.

Illustration –

A transfer’s property of which he is the owner to B in trust for A and his intended wife
successively for their lives, and, after the death of the survivor, for the eldest son of the intended
marriage for life, and after his death for A's second son. The interest so created for the benefit of
the eldest son does not take effect, because it does not extend to the whole of A's remaining
interest in the property. ( T. Subramania Nadar v. T. varadharajan, AIR 2003 mad 364 at p.
368)

PRE-REQUISITES FOR A VALID TRANSFER OF PROPERTY TO AN

UNBORN PERSON 

i) No transfer: The transfer of property can be done by way of trusts but not directly. In the
absence of trust the property must be created in favor of a living person and then to the minor.
ii) Prior Interest: Life interest can be enjoyed by person(s) until the unborn comes into
existence.

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iii) Before the death of last life estate holder: The unborn person must come into existence
before the death of the last life estate holder. It is not necessary that he should be born, even if he
is in the mother’s womb that is enough. A child en ventre sa mere is equal to child in essence
meaning a child in the mother’s womb is equal to a child in existence.

iv) Immediate transfer of rights: All the rights should vest in the unborn child as soon as he
comes into existence. He will the absolute owner of the property vested in him.
The pertinent fact here is that the transfer can be made to an unborn person but not to the issue of
an unborn person. Where the gift made in favor of the unborn grand children was not in respect
of the whole interest in the property, the gift was held to be a valid document
Isaac Nissim Silas v. Official trustee of Bengal, A.I.R 1957, Cal 118,

The trust was a family trust created for the benefit of settler and his wife, his two sons and their
children to be born. At the date of the trust the settler’s family consisted of his wife and his three
children. The trust deed provided that the trustee after making provisions for meeting the
necessary expenses, the property will remain in lifetime of settler, thereafter to his wife,
thereafter to his three sons in equal shares. Remainder in favor of the sons children that may be
born and remain alive at a certain period subject to certain restrictions. The legality of the gift
made in favor of the grandsons was questioned. It was held that the trust in favor of the grand-
children in deed of trust was void.

POSITION IN INDIA

Before the Transfer of Property Act, 1882, there was practically no law as to real property or, as
to personal property, in India. A few points had been covered by regulations, and the Acts, which
were repealed either wholly or in part by Section 2 of the Transfer of Property Act but for the
rest of the law, the Courts, in the absence of any statutory provision, adopted the English law as
the rule of justice equity and good conscience. This was not satisfactory, for the rules of English
law were not always applicable to social conditions in India, and the case law became confused
and conflicting. To remedy this state of affairs, a Commission was appointed in England to
prepare a Code of substantive law for India, and the Transfer of Property Act, though drafted in
1870, was the last of these drafts to become law.

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By the private laws of Hindus and Muslims dispositions of property in favor of unborn persons
could not be made, but no such embargo on anticipatory benevolence attached to the private laws
of other communities, including Christians, Parsis and Jews, to whom English law was applied,
to the extent that estates tail could be created as seen in the Modes of Conveying Land Act, 1854.
The Indian Succession Act, 1865, was the first Act, which curtailed the right of the other
communities to dispose of property by will to unborn persons, by modifying the English law, but
so far as the transfer of property inter vivos was concerned, English law continued to be applied
to the other communities, until the passing of the Transfer of Property Act in 1882, and by
statutes of 1914, 1916 and 1921. Hindu private law, which prohibited any disposition in favor of
an unborn person, was amended so as to bring into operation the two groups of sections
concerning dispositions in favor of unborn persons contained respectively in the Indian
Succession Act, 1865, and the Transfer of Property Act, 1882.

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.

Case Laws:

Girish Dutt v. Data Din, 

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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.

The deed on paper provided a life estate in favor of B’s unborn daughters: which is contrary to
the rule of Sec.13. However, B died without any child, and X claimed the property under the gift
deed. The court held that where a transfer in favor of a person or his benefit is void under sec.13,
any transfer contained in the same deed and intended to take effect or upon failure of such prior
transfer is also void. In determining whether the transfer is in violation of sec.13, regard has to be
made with respect to the contents of the deed and not what happened actually.

Here as the transfer stipulated in the contract that was void, the transfer in favor of X also
became void. Hence, X’s claim was defeated.

Sopher’s case

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 Section
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

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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.

Ardeshir’s Case

Ardeshir v. Duda Bhoy’s 

D was a settler who made a settlement. According to the terms of the settlement, D was to get
during life; one-third each was to go to his sons A and R. After D’s 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 son’s 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 R’s 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. A’s son who was alive at these dates did not also take a vested interest.

FRAMROZE DADABHOY MADON V. TEHMINA

Tehmina settled a sum of Rs. 47,000, representing the proceeds of sale of diverse investments,
made on her behalf by her father, Dadabhoy Sorabji Madon, upon trusts in favor of herself, for
life, and after her decease and subject to a power of appointment, exercisable by will or codicil
only, amongst her issue born during her lifetime; in trust for all her children who being sons,
"shall attain the age of 18 or being daughters shall attain that age or marry under that age in equal
shares." In default of issue there is a general power of appointment with regard to part only of the
trust funds to be exercised by will or codicil, and, "subject to the foregoing trusts and powers";
the trustees are to hold the trust funds in trust for the said Dadabhoy Sorabji Madon, his heirs,
executors and assigns.

These arrangements, in favor of the issue of Bai Tehmina, have been held by the learned Judge
to be void by reason of Section 13 of the Transfer of Property Act, 1882, as have also the

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subsequent trusts, with the result that a declaration has been made that there is a resulting trust of
the settled funds in favor of the settler.

In coming to that conclusion the learned Judge held that the case of Sopher v. Administrator
General, Bengal, which is a decision of the Privy Council upon the trusts of a will, declared to
be void under Section 113 of the Indian Succession Act, 1925, applied, and he followed a
decision of Mr. Justice Blagden in the case of Ardeshir Baria v. Dadabhoy Baria (1944) 47 Bom.
L.R. 287, who also applied Sopher's case to the trusts of a settlement. It was held by the
Lordships that the decision in the Sopher’s case could not be applied to the trusts of a settlement
which were transfer inter-vivos. It was held that the words ‘extend to the whole of remaining
interest of the transferor in the property’ in sec.13 of the Transfer of Property Act were directed
to the extent of the subject-matter and to the absolute nature of the estate conferred and not to the
certainty of vesting.

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[24] will be a loss
to the society because it will be deprived of any benefit arising out of that property. Free and
frequent circulation is important and the policy of the law is to prevent the creation of such
perpetuity.

Origin:

Perpetuity may arise in two ways- (a) By taking away the power of alienation from the transferor
(b) By creating a remote interest in the future property. A condition restraining the transferee’s

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power of alienation is void as per S.1O of the Act. And a disposition to create a future remote
interest is prohibited under S.14 of the Act.

Object:

As discussed earlier, it is important to ensure free and active circulation of property both for
trade and commerce as well as for the betterment of the property that ultimately is good for the
society. Thus, the object of this section is to see that the property is not tied- up and to prevent
the creation of perpetuity.

Following conditions must be satisfied to attract Section 14:

1. There must be a transfer of property.

2. The transfer should be to create an interest in favour of an unborn person.
3. Interest created must take effect after the lifetime of one or more persons living at the
date of such a transfer and during the minority of the unborn person.
4. The unborn person must be in existence at the expiration of the interest of the living
persons.
5. The vesting of the interest in favour of the ultimate beneficiary may be postponed only up
to the life or lives of living persons plus the minority of the ultimate beneficiary but not
beyond that.

ANALYSIS

 The TPA does not permit transfer of property directly in favor of an unborn person.
Thus, in order to transfer a property for the benefit of a person unborn on the date of the
transfer, it is imperative that the property must first be transferred in favor of some other
person living on the date of transfer. In other words, the property must vest in some
person between the date of the transfer and the coming into existence of the unborn
person since property cannot be transferred directly in favor of an unborn person. In other
words, the interest of the unborn person must, in every case, be preceded by a prior
interest.

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  Further, where an interest is created in favor of an unborn person on a transfer of
property, such interest in favor of the unborn person shall take effect only if it extends to
the whole of the remaining interest of the transferor in the property, thereby making it
impossible to confer an estate for life on an unborn person. In other words, the interest in
favor of the unborn person shall constitute the entire remaining interest. The underlying
principle in section 13 is that a person disposing of property to another shall not fetter the
free disposition of that property in the hands of more than one generation.
 Section 13 does not prohibit successive interests (limited by time or otherwise) being
created in favor of several persons living at the time of the transfer. What is prohibited
under section 13 is the grant of interest, limited by time or otherwise, to an unborn
person.
 Further, Section 14 of TPA provides that where an interest is created for the benefit of an
unborn person (in accordance with the provisions of section 13), such interest shall not
take effect if the interest is to vest in such unborn person after the life time of one or
more persons living on the date of the transfer (i.e. the person in whose favor the prior
interest is created as required under section 13) and the minority of such unborn person.
In other words, the interest created for the benefit of an unborn person shall take effect
only if the interest is to vest in such unborn person before he attains the age of eighteen
years.
 Section 14 further provides that the unborn person, in whose favor the interest is created,
must have come into existence on or before the expiry of the life or lives of the person(s)
in whose favor the prior interest is created as required under section 13.

EXTENT OF PERPETUITY PERIOD

Position in India – Life or any number of lives in being + period of gestation + minority period
of the unborn beneficiary.

English Law – Life or lives in being +period of gestation +minority period.

OTHER RELEVANT PROVISIONS

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  Sections 113 and 114 of Indian Succession Act, 1925: Sections 113 and 114 of the ISA
are almost identical to sections 13 and 14, respectively, of TPA. The main difference
between the provisions under the ISA and the provisions under TPA is that the former
deals with bequests which take effect only on the death of the testator while the latter
relate to transfer of property inter vivos. Section 13 of TPA controls Section 113 of ISA
and both of them are to be read together, as opined by the Apex Court in 

Raj Bajrang Bahadur Singh vs. Thakurain Bakhtraj Kuer AIR 1953

It was further observed by the Court that:

"It is quite true that no interest could be created in favor of an unborn person but when the
gift is made to a class or series of persons, some of whom are in existence and some are not,
it does not fail in its entirety; it is valid with regard to the persons who are in existence at the
time of the testator's death and is invalid as to the rest."

EXPLANATION

 The effect of these Rules is that a transfer/ gift can be made to an unborn person subject
to the following conditions: (i) that the transfer/ gift shall be of the whole of the
remaining interest of the transferor/ testator in the thing transferred/ bequeathed and not
of a limited interest; and (ii) that the vesting is not postponed beyond the life in being and
the minority of the unborn person.
 In simple terms, while section 13 of TPA lays down the mechanism for transfer of
property for the benefit of unborn person and "what property" is required to be ultimately
transferred in favor of an unborn person in order to validate such transfer, section 14 of
TPA provides the "maximum period as to when" such property can be vested upon such
unborn person.
 Section 14 of TPA supplements section 13 of TPA and thus, it is pertinent to note that
when an interest in any property is intended to be transferred in favor of an unborn
person, sections 13 and 14 of TPA are required to be read together and the provisions
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 contained there under are required to be duly complied with, in order to give effect to the
intended transfer in favor of such unborn person.

DIFFERENCE BETWEEN INDIAN 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.

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 is transfer of interest.

4) Pre-emption: In this there is an option of purchasing a land and there’s no question of any
kind of interest in the property, so this rule does not apply.

5) Perpetual Lease: It is not applicable to the contracts of perpetual renewal of leases.

This rule is not applicable to mortgages because there is no creation of future interest.

Rule under Hindu law and Muslim law

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The transfer of property act has made possible the transfer of property for the benefit of an
unborn person. Before the transfer of property act, the rule under the Hindu and Muslim law was
that the gift given to a person who is not born or not in existence was void. The position under
the Muslim law keeps being the same. However, for Hindus, the rule was modified by various of
enactments to bring it conformity with the section of transfer of property act. There have been
parallel provisions made under the Indian succession act, 1925, which allows bequest for the
person who is not born or unborn. Section 113 of Indian Succession Act 1925(IS Act), applies to
legacies created for the person unborn and contain a provision almost identical to section 13 of
the transfer of property act.

Conclusion

Transfer of property to an unborn child has always raised questions. So to overcome the
questions the section 13 of transfer of property act was given as an answer of the questions
which states that the transfer of property for benefit of an unborn child or the person who is not
born. A child in mother’s womb is regarded by a legal fiction as already born, in accordance with
the maxim nasciturus pro iam nato habetur. For the unborn person, there must be a transfer of
absolute interest.

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 Bibliography

REFERENCES

STATUTES

 Transfer of Property Act, 1882

 Indian Succession Act, 1925

CASES

 Girish Dutt V. Data Din AIR 1934 Oudh 34

 Ardeshir v Dadabhoy AIR 1945 Bom 395
 Sopher V Administrator General of Bengal AIR 1944 PC67
 Framroz Dadabhoy v Tahmina 49 Bom L.R.882
 Isaac Nissim Silas v. Official trustee of Bengal, AIR 1957 cal. 118
 T. Subramania Nadar v. T. varadharajan, AIR 2003 mad 364
 Raj Bajrang Bahadur Singh vs. Thakurain Bakhtraj Kuer AIR 1953

BOOKS

 Dr. Avtar Singh, Transfer of Property Act, 2nd ed. 2009, Universal Law Publishing Co.

 Dr. G.C.Bharuka, mulla transfer of property act 1882,10th ed., 2006, Lexis Nexis
Butterworths.
 G.P. Tripathi, Transfer of property Act, 1882, 17th ed. 2011, Central Law Publication,
Allahabad.

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  Institutes of Roman Law, Translated by Ledlie. Second edition, XXII, 639. Oxford, 1901.

OTHER SOURCES

 (1931) "Real Property-Future Interests-Rights of Unborn Child," Indiana Law Journal:

Vol. 7: Issue 2, Article 8. available at: http://www.repository.law.indiana.edu/ilj/vol7/
 The Law Commission (LAW COM No 331) Intestacy and Family provision Claims on
Death available at: http://lawcommission.justice.gov.uk/docs/lc331_intestacy_report.pdf
 http://www.life.org.nz/abortion/abortionlegalkeyissues/rightsunbornchild/

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