Transfer of Benefit of an Unborn Person

 

Name – Yashika Thakran

College - Fairfield Institute of Management and Technology (GGSIPU), DELHI

There can't be any direct transfer to an unborn person. an unborn person means someone who isn't alive even in the mother's womb. Earth child in mother's womb could be a competent transferee. property is often transferred to a baby in the mother's womb. but property can not be transferred to a person who isn't even within the mother's womb. Accordingly, Section 5 of this act provides that transfer of property takes place only between two living persons. When a property is transferred, the transferor divest (or put off from) himself of that interest and vest it immediately within the transferee. So, if a property is transferred on to the one who isn't living the interest so transferred shall be divested or be faraway from the transferor but it might need to remain delayed and wait for the transferee to return into existence in whom it could vest. Such a situation would be against the very concept of the interest. 

Section 13

The law regarding transfer for the good thing about unborn person is laid down in section 13 of Transfer of Property Act which states " there on the transfer of property and interest therein is made for the advantage of an individual not living at the date of transfer subject to a previous interest created by the identical transfer, the interest created for the advantage of such person shall not go unless it extends to the entire of the remaining interest of the transferor within the property.

Illustration:-

A Transfers property of which he's the owner to B, interest for A and his intended wife successively for his or her lives and after the death of the survival for the eldest son of the intended marriage for all times and after his death for A's second son. the interest so created for the advantage of the eldest son doesn't get because it doesn't touch the entire old remaining interest within the property.

1. Prior life-interest-

The transfer for the advantage of an unborn person must be preceded by a life interest in favor or living person living at the date of the transfer. Where someone intends to transfer certain properties for the good thing about an unborn person, such unborn is that the ultimate beneficiary.

But since the unborn or ultimate beneficiary isn't breathing at the time of the transfer the property can't be given to him directly. There must be a previous life interest in favor of the living person so such a living person holds the property during his life and till that point the unborn would get existence. After the termination of his life interest after the death of the living person holding property forever, the interest would pass away ultimately to the unborn who, by that point, comes into existence.

ILLUSTRATIONS

A Transfers his house to X forever and after to the unborn who is an unborn son of A. the transfer of house in favor of the unborn is valid. Here since the unborn aren't breathing at the date of transfer. A couldn't transfer the house to him. So A had to form an on the spot transfer of life interest in favor of X who lives at the date of transfer. After the death of X the interest of the house shall depart this world to the unborn who is that the ultimate beneficiary.

A transfers his properties to X forever and so to Y for all times and so to Z for keeps and thereafter to the unborn child of Z. Here X,Y,Z all the living persons exist at the date of transfer. This disposition of property is valid. the property could also be given to quiet one living person successively for all times before it ultimately wastes within the unborn.

2. ONLY ABSOLUTE INTEREST COULD ALSO BE GIVEN

Only absolutely the interest of the property could also be given within the favor of an unborn person. limited or life interest can not be given to an unborn person. transfer of property always of an unborn person is void and can't get. section 13 enacts that given to the unborn person must be whole of the remaining interest of the transferor within the property.

ILLUSTRATION

A Transfers his property to X for keeps who is unmarried so to the eldest child of X absolutely. the transfer in favor of the eldest child of X is valid. A Transfers his property to X for his life and thereafter to unborn forever. X is that the living person at the date of transfer and therefore the unborn isn't existing at the date of the transfer. Here the transfer of life interest in favor of X is valid. But the transfer of life interests in favor of the unborn is void because although the transfer in favor of the unborn is preceded by her life interest to X but the unborn himself has not been given an absolute interest. The results therefore are that X shall hold the property during his life but after his death it shall not die the unborn but shall revert back to A or if A is dead by that point to A's legal heir.

3. NO LIMIT TO THE AMOUNT OF SUCCESSIVE INTEREST IN FAVOR OF THE LIVING PERSON- so long because the person intended to be benefited our living at the date of transfer, there's no limit to the transfer of successive life interest which can be created in their favor. Thus A,B,C,D all living when a transfer is formed by a person in favor of A Ford life afterward in favor of B,C and D successively for his or her lives here all the successive interests are valid because the persons benefited from tired existence at the date of transfer.

4. LEGAL CONSEQUENCES

The transfer in favor of an unborn person must be preceded by a life in trust which only absolute interest is also given to the unborn has following legal consequences:-

The intermediary person living at the date of the transfer is to learn only the life interest giving life interest or creating estate in favor of an individual means giving him only the proper enjoyment and possession he should preserve the property sort of a trustee during the lifetime on behalf of the unborn.

The unborn must acquire the existence before the death of the person holding property for the lifetime of the unborn inherit the existence say after one month after the death of the last living individual that is after the termination of the preceding of the preceding interest the property shall revert back to the transferor or his hires this can be obvious because after the termination of the life interest it cannot remain inactive and can't wait even for a flash for the following person to come back into existence.

References

https://articles.manupatra.com/article-details/Analysis-on-transfer-of-property-to-an-unborn-child

https://indiankanoon.org/doc/106689/