State whether or not the disposition of properties by gift or Will for the benefit of unborn person is valid. State the law.

Question: State whether or not the disposition of properties by gift or Will for the benefit of unborn person is valid. State the law.

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Answer

Section 5 of the Transfer of Property defined the expression "transfer of property" as meaning an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons. It also defines the expression "to transfer property" as meaning to perform such an act.

As per Section 5, the transferee must be:

(i) one or more other living person, or

(ii) the transferor himself, or

(iii) the transferor himself and one or more other living persons. In this case, the transferor, when he becomes the transferee, does so as a trustee.

In general, it is possible to dispose of properties by gift or will for the benefit of unborn persons, and such dispositions can be legally valid. However, this is subject to certain conditions and legal principles.

However, there cannot be any direct transfer to an unborn child. An Unborn child means a child who is not in existence even in the mother's womb. A child in the mother's womb or a child's venture as mere is a competent transferee. The property can be passed on to the unborn child. But property cannot be transferred to any person who is not even in the Mother's Womb because such a child is an unborn child.

Under Section 5 of the Transfer of Property Act, property can only be transferred between living persons. This requirement implies that the transferor and the transferee must both be in existence at the time of the property transfer. Consequently, there is a valid legal rationale for not directly transferring property to an unborn child. Legally, every transfer of property involves the transfer of an interest.

When a property is transferred, the transferor relinquishes their interest in the property, which is immediately vested in the transferee. If the property were transferred directly to a person who does not yet exist, the interest intended to be transferred would remain in limbo, void, and waiting for the potential transferee to come into existence. Such a scenario would be incompatible with the very concept of property interest. Consequently, any attempt to gift property to an unborn child would be considered void under these legal principles.

In the case of Girijesh Dutt v. Data Din, AIR 1934 Oudh 35, A made a gift of her properties to her nephew's daughter B for life and then absolutely to B's male descendants, if she should have any. But in the absence of any male child of B, the property will go to B's daughter without the power of alienation and if B has no descendants male or female then to her nephew. Later B died issueless. It was held that the gift for life to B was valid as B was a living person at the date of the transfer. However, the gift in favour of B's daughter was void under section 13 of the Act because it was a gift of only limited interest; she had not been given absolute interest further since this transfer was invalid the subsequent transfer depending on it also failed.