A transfers his property to B for thirty years and the property which will remain thereafter to the eldest son of C, unborn at the time transfer. Is the transfer in favour of the said son of C legal?

Question: A transfers his property to B for thirty years and the property which will remain thereafter to the eldest son of C, unborn at the time transfer. Is the transfer in favour of the said son of C legal? [UPJS 1985]

Find the answer to the mains question of Property Law only on Legal Bites. [A transfers his property to B for thirty years and the property which will remain thereafter to the eldest son of C, unborn at the time transfer. Is the transfer in favour of the said son of C legal?]

Answer

Section 13 of the Transfer of Property Act, 1882 talks about transfer for the benefit of an unborn person. It states:

“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.”

On analysis, it is clear that the section provides for the transfer of property to an unborn person and that such transfer is made for the benefit of a person who is not in existence at the date of the transfer shall take place provided it extends to the whole of the remaining interest of the transferor in the property. It can be understood from the section that transfers to an unborn are to occur by first transferring the life interest of the property to a person living on the date of such transfer, followed by which absolute interest is to be conferred to the unborn.

In the case given at hand, A has transferred the property to B for thirty years. After that period, the property is to go to the eldest son of C, who is unborn at the time of the transfer. The transfer is subject to a prior interest created in favour of B for thirty years. Since the interest in favour of B takes effect before the interest in favour of the unborn son of C, it is important to ensure that the interest in the property extends to the whole remaining interest of the transferor (A).

This means that A must have sufficient interest or ownership in the property so that when B's interest ends after thirty years, the property can be passed on to the unborn son of C. However, if A has conveyed the entire interest he had in the property to B for thirty years and has no remaining interest after that period, the transfer to the unborn son of C may not be valid under Section 13.