Section 5 of Transfer of Property Act states that a living person can transfer property to another living person. One of the essential requisites of transfer of Property is that there must be a living person. So, is it possible to transfer property to an unborn person? Yes, property can be transferred to an unborn person subject to conditions mentioned under Section 13 of Transfer of Property Act.
Section 13 of Transfer of Property Act
Section 13 of Transfer of Property Act states that property can be transferred for the benefit of a person not in existence at the date of transfer, subject to –
- Prior interest created
- Absolute Interest given
Prior interest created
The transfer of property for the benefit of an unborn person must be preceded by a life interest. It means a living person will hold the property during his life and till the time the unborn will come into existence.
Only absolute Interest may be given
It means the unborn person will exercise absolute Interest after getting transferred property. It means he gets the right to dispose of the property.
Girijesh Dutt v. Data Din (1934)
In this case, the court held that a gift for life to a living person is valid but it is void when limited interest (gift without power of alienation) is given to an unborn person.
The court also state that if the prior interest was invalid then subsequent transfer depending on it also failed ( as provided by Section 16 of Transfer of Property).