Anupriya
in Property Law Family Law
Asked October 10, 2013

transfer of property to an unborn child

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An unborn child is not a living person, but still property can be transferred to him under Transfer of Property Act,1882. Kindly explain the reason of the above with recent court judgement.

Answer 1

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Ashwini Panwar

Sec. 13 of the Transfer of Property Act talks about ‘transfer for benefit of unborn person’ the interest created for the unborn child shall not take effect unless the interest extends to the entire remaining interest of the transfer in the property. The Section uses the expression ‘for the benefit of’ rather than ‘to’ when it comes to transfer. Hence, the property cannot be directly transferred to the unborn person but can only be transferred for the benefit of the person. There are certain conditions that need to be fulfilled before the property is transferred for the benefit of the unborn child:

  • Prior life interest must be created in favour of a person in existence at the date of the transfer.
  • Absolute interest must be transferred in favour of unborn person.
  • Section 20 the same Act states that any such transfer that comes under Sec.13, the unborn person acquired a vested interest unless a contrary intention appears on the terms of the transfer.

    Apart from that, there is no specific provision that states that unborn child is not a living person. Unborn Child is taken into consideration in cases of family law. The Consumer Court has even ruled in favour of the party that claimed insurance for the unborn child (Kanta Mohanlal Kotecha v Branch Manager, United India Insurance Company Limited 2006 Indlaw SCMAH 5 [Maharashtra Consumer Disputes Redressal Commission]). While there is no recent case that talks about transfer for the benefit of an unborn child,  Raman Nadar v. Snehappoo (1970 AIR 1759 ) could help you to get a better understanding of this concept.

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