Section 13, fourteen and twenty of the Transfer of Property Act, 1882 deals with the exceptions to the final principle that property can't be transferred nor AN interest be created in favor of persons not living.
TRANSFER UNDER T.P. ACT, 1882
Sec thirteen of the T.P Act deals with the transfer of property in favor of unhatched persons. As per this section interest created for the unhatched should reach whole of the interest of the property of the transferer. Thus, the interest of the unhatched should be for the complete remainder ANd it's not permissible to confer AN estate forever on an unhatched person. beneath sec thirteen the transferer isn't allowable to transfer something but his whole or entire interest within the property in favor of unhatched persons with previous interest created within the same transfer. as an example, if A transfers his property to B in trust for A and his meant married woman in turn for his or her lives and when the death of the survivor, for the eldest son of the meant wedding forever and when his death, for A's second son. The interest created for the advantage of the eldest son doesn't get as a result of it doesn't reach the complete of A's remaining interest within the property.
The previous interest created by the transferer should always be unconditional and not contingent so as to form transfer in favor of unhatched persons valid. within the higher than case the condition may be termed as a contingency since A obtaining a teenager was solely an overseas risk.
Under Sec thirteen of the T.P Act, once the gift to AN unhatched person is valid, then such interest can't be defeated and therefore the unhatched person acquires a unconditional interest on the property on his birth. additional it's to be noted that a unconditional interest additionally doesn't produce a immediate enjoyment. it's not permissible beneath law to alter the rule of succession beneath the colour of fictitious endowment. the foremost vital purpose is that there has got to be a previous interest created by the terribly transfer to form transfer of property valid in favor of unhatched persons. Similarly, previous disposition or transfer wouldn't be affected if a condition subsequent becomes defunct.
Section fourteen of the T.P Act deals with the rule against sempiternity. Sec14 prohibits the creation of sure remote interest within the immobile property therefore on last for one or additional existing lives and eighteen years. but the conditions with reference to renewal of lease isn't thought of as transfer of any right within the property and thus not suffering from the provisions of Sec fourteen.
The rule of sempiternity or Sec fourteen doesn't have an effect on the creating of contracts that don't creates right within the property. thus a contract of sale isn't hit by sec fourteen because it doesn't produce any interest within the immobile property in favor of the vendee. the item of rule of sempiternity is to restrain creation of a future conditional interest within the property and is simply involved with the rights in property and for the applying of Sec fourteen there ought to be a transfer of interest within the immobile property.
According to the Sec twenty of the T.P Act unless a contrary intention seems on the terms of a contract, AN interest created in favor of AN unhatched now acquires it upon his birth tho' he might not be entitled to the enjoyment of the property thence now.
TRANSFER UNDER THE INDIAN SUCCESSION ACT, 1925
Section thirteen of the T.P Act is parallel to Sec 113 of the Indian Succession Act that deals with the transfer in favor of unhatched persons wherever an award is formed to someone not living at the time of the testator's death, subject to previous heritage contained within the can, the later heritage shall be void, unless it contains the complete of the remaining interest of the testate within the issue bequeathed.
For example, a property is bequeathed to A for his life and when his death, to his eldest son forever and when the death of the latter, to his eldest son. At the time of the testator's death, A has no son. Here, heritage to A's eldest son may be a heritage to someone not living at the testator's death. it's not an award of the complete interest that continues to be to the testate. The heritage to A's eldest son for his life is void.
Under Sec 113 the heritage is void if the beneficiary isn't living at the time of testator’s death. Postponement of possession doesn't have an effect on the vesting of property. Section 113 doesn't concern itself with any attainable diminution of the extent of the property by addition to the category for whose profit the heritage is formed. within the case of an award created for the advantage of AN unhatched person the quantity isn't collectable till the birth of the person and therefore the intermediate financial gain would then accumulate for his profit. The estate for life therefore created in favor of persons living and people not living would get with relevance those living at the time of the death of the testate and would become invalid on the remainder and creation of ordered life estates in favor of persons not living is additionally not permissible in law.
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