Abstract
Transfer of Property Act generally permits transfer inter-vivos which means transfer should be made between the living persons. A person who transfer his rights in the property is termed as a transferor and the person to whom such rights is transferred is known as transferee. Both the parties to the transfer much be a living person at the time of the transfer. This is the general rule. But in certain circumstances transfer is made between a living person to unborn person. Unborn person means a child who is not in existence even in mother’s womb. Earlier it was a rule that no gift or inheritance is made to an unborn person. It is not permitted. But now transfer to an unborn person is permitted by law subject to the provisions of sections 13 and 14 of the Transfer of property Act. No direct transfer is made to an unborn person, but property can be transferred to an unborn child by way of creation of trust or creating prior interest and thereafter subsequent transfer can be made to an unborn child. Prior interest is a person who lives during the time of the transfer and take care of the property till the child comes into existence. On the birth of an unborn person he acquires vested interest in the property even though he is not entitled to the enjoyment of the property immediately on his birth. Thereafter the whole remaining interest in the property vested to an unborn person which the transferor has in the property.
Introduction
Section 5 of the Transfer of Property Act, 1882 defines the term “transfer of property”. The section provides that “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons or to himself, and one or more other living persons, and “to transfer property” is to perform such act[1].
In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
So as per section 5 conveyance of the property must be from one living person to another living person, i.e., transfer inter-vivos. In the Transfer of Property Act, 1882 there are two sections which runs together with respect to transfer made for the benefit of unborn person, i.e., section 13 and 14. Section 13 deals with “Transfer made for the benefit of unborn person” and section 14 deals with “Rule against perpetuity”. These two sections are exceptions to the general rule that the transferee must be in existence at the time of transfer.
Sometimes it is natural for a man to adopt a device to retain the property with in his own family. So this section provides provision to such persons to sustain the property within their family members who will come into existence in future. So they can retain the property within their family only by satisfying the conditions in sections 13 and 14.
[1] Section 5 of Transfer of Property Act, 1882.