Introduction
According to the transfer of property Act, 1882, a child in the womb is treated as a person in existence. Property can be transferred to him. A property can be transferred to the child in the womb in the form of trust. The transfer has to be in a form of the trust or it has to be firstly transferred to a living person and then to a minor but it cannot be done directly.
Section 13
The Section 13 of the Transfer of Property Act, 1882 says that “Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of 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 transfer in the property.’’
As a general rule, a transfer of property will take place only between two living persons. A child in the mother’s womb is considered as ‘non-existence’ but not ‘unborn’. Therefore, the property can be transferred to the child in the mother’s womb because the child exists. But not to the child who does not even exist in the mother’s womb.
Vesting of the interest of the ownership is the basic condition of any transfer of property. As soon as the property is transferred the ownership shifted from transferor to transferee. Therefore, it is necessary that at the time of transfer of the property the transferee is in existence. Otherwise, the transfer will remain uncertain until the transferee comes into existence.
Essential Conditions
The conditions which are to be kept in mind for transferring the interest for the benefit of an unborn person are:
- Prior life interest has to be created in favor of a person at the date of the transfer
Creation of prior interest means that that the property has to be transferred to any living person. It is not necessary that the interest should be created in favor of only one living person. The transferor can create a successive life interest in favor of several living people at the same time as well.
For instance, A transfer of property to B for life, and after him, to C, and then to D again for their lives and then absolutely to B’s unborn child UB.
- Absolute interest must be transferred in favor of an unborn person.
The transferor has to transfer to the unborn person, whatever he had in the property without retaining anything with him. If the interest is limited in the property for an unborn person, then the transfer will be void.
For instance, a father gave a life interest in his properties to his son and then to his unborn child absolutely. This settlement was treated as valid. But where the interest in favor of the unborn child was a life interest, the settlement would be void, and a subsequent interest would also fail.