Under the Transfer of Property Act, property cannot be transferred directly to an unborn person because Section 5 states that a transfer of property must occur between two living persons. This means that the transferee must exist at the time of transfer. Since an unborn person does not yet exist legally, any direct transfer to such a person is void. However, there are certain legal mechanisms through which property can be transferred for the benefit of an unborn person.
Who is Considered an Unborn Person?
- An unborn person is someone who is not yet conceived and does not exist even in the mother’s womb.
- A child in the womb (en ventre sa mere) is not considered unborn under the law. Such a child is a competent transferee, meaning property can be transferred to a child in the mother’s womb.
For example, if a person attempts to gift property to the eldest child of his unmarried son, the gift is void, as the eldest child does not yet exist.
Why Direct Transfer to an Unborn Person is Invalid
When a property is transferred, the transferor gives up their rights, and the property immediately vests in the transferee. If the transferee does not exist at the time of transfer, the interest in the property would have to remain in abeyance (suspended) until the transferee is born. Such a situation is legally impermissible because it contradicts the fundamental principle of property transfer—that the interest must immediately vest in a legally recognized entity.
Transfer for the Benefit of an Unborn Person (Section 13)
While direct transfer to an unborn person is not allowed, Section 13 of the Transfer of Property Act provides a legal way to transfer property for the benefit of an unborn person, subject to two conditions:
- Creation of a Life Interest – The property must first be transferred to a living person, who will hold it as a life interest (without absolute ownership). The unborn person will receive the property only after this life interest ends.
- Absolute Interest for the Unborn – When the unborn person eventually comes into existence, they must receive absolute ownership of the property. Limited or conditional ownership cannot be created for an unborn person.
For example, a person can transfer property to his brother for life, and after the brother's death, the property can pass to the brother’s unborn child (who must exist by then). This ensures that property is never left without a rightful owner.
If the unborn beneficiary is born after the life interest ends, the property reverts to the transferor or their heirs, as property cannot remain in abeyance even for a moment after the termination of the preceding interest.
Furthermore, Section 13 of the Transfer of Property Act, 1882, which governs transfers to unborn persons, does not apply to Muslims. Under Muslim law, a gift in favor of a non-existent person is void. However, for Hindus and other communities governed by the Transfer of Property Act, a transfer to an unborn person is valid, provided it complies with Section 13.
Judicial Analysis
In the case of Girijesh Dutta vs. Data Din, AIR 1937 Oudh 35, A gifted her property to her nephew’s daughter, B, for her lifetime. The gift stated that after B’s death, the property would go to B’s male descendants if she had any. If B did not have a male child, the property was to pass to B’s daughter, but without the right to transfer it. If B died without any children, the property would revert to A’s nephew. Ultimately, B died issueless.
The Court upheld the gift to B for life since B was alive at the time of transfer, making it legally valid. However, the gift to B’s daughter was declared void under Section 13 of the Transfer of Property Act, 1882, as it attempted to transfer a limited interest (without the right to alienate), which is legally impermissible. Consequently, since this prior transfer was invalid, the subsequent transfer to A’s nephew also failed under Section 16 of the Act.
