ES 'अजन्मे व्यक्ति' को किस प्रकार तथा किस सीमा तक सम्पत्ति का अन्तरण किया जा सकता है?

Transfer of Property to an Unborn Person

1. Meaning and Legal Position

The Transfer of Property Act, 1882 (TPA) governs the transfer of property in India. According to Section 13 of the TPA, property cannot be directly transferred to an unborn person. However, it can be validly transferred by creating a prior interest in favor of a living person and then passing it to the unborn person upon birth.

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2. Extent and Manner of Transfer to an Unborn Person

(i) Absolute Transfer Not Allowed

• A transfer cannot be made directly to an unborn person since the law recognizes only living persons as transferees.
• Example: If A wants to transfer property to his future grandson (who is yet to be born), the transfer cannot be made directly.

(ii) Creation of Prior Life Interest (Section 13, TPA)

• The property must first be transferred to a living person, who will hold it as a life estate holder.
• Upon the birth of the unborn person, the property will pass to him as an absolute owner.
• Example: A transfers property to B (his son) for his lifetime, and after B’s death, to B’s unborn child (once born).

(iii) Unborn Person Must be Born Alive

• If no child is born, the property cannot vest in any unborn person and will revert as per legal provisions.
• If the unborn person dies before acquiring the property, it passes as per inheritance laws.

(iv) Absolute Interest Must be Given to the Unborn Person (Section 14, TPA)

• Once the unborn person is born, he must get absolute ownership (not a life interest).
• The Rule Against Perpetuity (Section 14, TPA) states that the property must not be indefinitely restricted from transfer.

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3. Rule Against Perpetuity (Section 14, TPA)

The transfer to an unborn person must not tie up the property indefinitely. According to Section 14, property can only remain non-transferable until:

1. The death of one or more persons living at the time of transfer; and
2. An additional 18 years after their death (period until the unborn person attains majority).

Example:

A transfers property to B for life, then to B’s unborn son. If B’s son is born within B’s lifetime, he gets absolute ownership, and the transfer is valid. However, if the property remains tied up beyond one generation + 18 years, the transfer is void.

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4. Judicial Interpretation

Gour Kishore v. Smt. Kiran Bala (1928)

The court ruled that property must first vest in a living person before passing to an unborn person.

Tagore v. Tagore (1872)

• Held that an unborn person cannot directly acquire property without an intermediary life estate.
• If absolute ownership is not granted to the unborn person, the transfer fails.

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5. Conclusion

A property can be transferred to an unborn person, but only by:

1. Creating a prior life estate in favor of a living person.
2. Ensuring absolute ownership is given to the unborn person upon birth.
3. Complying with the Rule Against Perpetuity (Section 14, TPA).

If these conditions are not met, the transfer is considered void.