TRANSFER OF BENEFIT

TO UNBORN PERSONS
AND
RULE AGAINST
PERPETUITY

Submitted to - Submitted by-

Prof. Rajinder Kaur Anupriya Shyam
Roll No.- 70/14
Section- B
Semester- 7

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Acknowledgement:
I take this opportunity to express my profound gratitude and deep regards to my teacher Prof.
Rajinder Kaur for her exemplary guidance, monitoring and constant encouragement. I would also
like to express a deep sense of gratitude to the UILS library staff for cooperating with me and
helping me find the required books. Lastly, I thank almighty, my parents, and friends for their
constant encouragement without which this project would not be possible.

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TABLE OF CONTENTS

1. Transfer of benefit to inborn persons

1.1 Introduction
1.2 Rule under section 13
(i) No direct transfer
(ii) Prior interest
(iii) Absolute interest
1.3 Case Laws
1.4 English Law
1.5 Hindu Law and Muslim Law
2. Rule against perpetuity
2.1 Transfer in perpetuity
2.2 Object of Rule against Perpetuity
2.3 Rule against perpetuity under section 14
2.4 Maximum remoteness of vesting
2.5 Ultimate beneficiary in mother’s womb
2.6 Gestation period
2.7 Minority
2.8 Contingent interest under section 14
2.9 Regard of possible events not actual events
2.10 Analogous to section 114 Indian Succession Act
2.11 Exceptions to rule against perpetuity
2.12 Rule against perpetuity under Hindu law and Muslim Law
2.13 Difference between English Law and Indian Law

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TABLE OF CASES

Abdul cadur v turner, (1884) 9 Bom. 158. ...................................................................................... 9

Abdul Fata Mohammed v. Rasamaya (1884) 23 Cal. 619. ........................................................... 14
Abul Fata Mohamed v. Rasamaya, (1894) 22 Cal. 619 ................................................................ 18
Girijesh Dutt v. Delta Din (1934) 9 Luck. 329:147 I.P.C. 991 : (34) A.O. 35 ............................... 8
Jagar Nath v. Chedi Dhobi, AIR 1973 All. 307 ............................................................................ 17
Nafar Chandra v. Kailash, (1921) AC 328. .................................................................................. 17
P. Venkata Subanna v. D. Chimm Panayya AIR 1989 AP 34. ..................................................... 17
Padmanabha v. Sitarama, AIR 1928 Mad. 28. .............................................................................. 17
Pan Kuer v. Ram Narain, (1929) AC 353; Nabind Chandra v Rajni Chandra, (1921) 25............ 15
Ram Baran V. Ram Mohit AIR 1967 SC 744 .............................................................................. 17
Saundara Rajan v. Natamjan AIR 1925 PC 244 ........................................................................... 12
Sookhmoy Chunder v. Monoharri Dassi, (1885) 11 cal. 684 ....................................................... 18
Soundara Rajan v. Rasamaya (1925) 48 Mad. 906. ...................................................................... 13
Stanley v. Leigh (1732) All ER 917 at p. 918 .............................................................................. 10
Veerattalingam v. Ramesh(1991) 1 SCC 489 ............................................................................... 16
Whitby v Mitchell (1890) 42 Ch. D. 85 .......................................................................................... 8

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 1. TRANSFER FOR BENEFIT OF AN UNBORN PERSON

1.1 INTRODUCTION:
There cannot be any direct transfer to an unborn person. An unborn person means a person who
is not in existence even in mother’s womb. A child in mother’s womb, i.e., a child en ventre sa
mere is a competent transferee. Property can be transferred to a child in mother’s womb. But
property cannot be transferred to any person who is not even in mother’s womb because such
person is an unborn person. Accordingly, section 5 of the Act provides that transfer of property
takes place between two living persons only. This means that the transferee must be in existence
at the time of transfer. There is a valid reason why property cannot be transferred to an unborn
person. Legally speaking, every transfer of property involves transfer of interests. When property
is transferred, the transferor divests himself of that interest and vests it immediately in the
transferee. So if a property is transferred directly to a person who is not in existence, the interest
so shall be divested from the transferor, but it would have to remain in abeyance and wait for the
transferee to come into existence, in whom it could vest. Such situation would be against the
very concept of interest. The Transfer of property Act, by and large deals with transfers as
between living persons, but there are certain sections in the Act which lay down certain rules
with regard to transfers for the benefit of unborn person.

1.2 RULE UNDER SECTION 13

Section 13 deals with the transfer for benefit of unborn person. It reads as:-

“Where, on a transfer of property, an interest therein is created for the benefit of a person not in
existence at the date of the 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 transferor in the property.”

This section is one of the group of sections which refer to interests created for the benefit of
person not existing at the date of transfer. Such in interests can be created subject to certain rules
contained in this and the subsequent section. So far as this section is concerned, the following
three rules may be noted:

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(i) NO DIRECT TRANSFER:-
A transfer cannot be made directly to an unborn person. Such transfer can only be made
by the machinery of trusts. It is a fundamental principle of the English Common law, that
any disposition of land calculated to produce an abeyance of ownership is void.
Accordingly, if a transfer were made directly to an unborn person, there would be an
abeyance of ownership from the date of transfer till coming into existence of the unborn
person.
(ii) PRIOR INTEREST
In case a trust is not created, the estate must vest in some person between the date of the
transfer and the coming into existence of unborn person. The interest in favour of unborn
person must always be preceded by a prior interest in favour of a living person.
Illustration:-
a) A transfers his house to X for life and thereafter to B who is an unborn son of A. the
transfer of house in favour of B is valid. Here since B is not in existence at the date of
the transfer, A could not transfer the house directly to him. So A had to make a direct
transfer of life interest in favour of X who is a living person on the date of transfer.
After the death of X the interest of the house shall pass on to B who is the ultimate
beneficiary.
(iii) ABSOLUTE INTEREST
The entire property must be transferred to the unborn person. It is not permissible to
confer a life-interest on an unborn person. Transfer of property for life of unborn
person is void and cannot take effect. If there is any other limitation which derogates
or cuts short the completeness of the grant in favour of the unborn, the transfer is
void.

Illustration:-

A transfers his properties to X for his life and then to B, who is unborn. Here the transfer of life
interest in favour of X is valid but transfer of life interest in favour of B is void as B has not been
given an absolute interest. Thus the result is that X shall hold the property during his life but
after his death it shall not pass on to B but shall revert back to A or his legal heirs if he is dead.

So long as the persons intended to be benefitted are living at the date of the transfer, there is no
limit to the number of successive life interests which may be created in their favour. The owner

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of property may transfer it to A for life and after his death to B for his life and so on to others.
When, however it is desired to create interest in favour of persons yet to be born, this section
enacts that absolute interest must be given to such unborn person.

The above mention conditions have the following legal consequences:

1. The intermediary person living at the time of the transfer is given only life-interest, i.e.
giving only the right of enjoyment and possession. He has to preserve the property like a
trustee during his life time on behalf of the unborn
2. The unborn must come into existence before the death of the person holding property for life.
If the unborn comes into existence after the death of such person, the property is to revert
back to the transferor or his heirs. This is obvious because after termination of life interest,
property cannot remain in abeyance.

1.3 CASE LAWS:

1. Sridhar v. N. Revanna1

The donor transferred property by way of gift in favour of his grandson. The property thereafter
was to be vested in the male children of the grandson. The court held that the gift deed could be
said to have created life interest in favour of the grandson and absolute interest in favour of his
unborn sons. Alienation of the property by the done after birth of his sons was improper. The
sons were allowed to recover the sale consideration received by their father from the purchasers.

2. Girijesh Dutt v. Delta Din2

A makes a gift of properties to B who was her nephew’s daughter. This gift by A was made for
the life of B and then to B’s male descendants absolutely if she should have any. But if she had
no male descendants, then to B’s daughter without power of alienation and if there was no
descendants of B, male or female, then to A’s nephew. B died without any issue. It was held in
this case that the gift in favour of unborn daughters was invalid under section 13 because the gift
was of a limited interest and subject to the prior interest in favour of B. the gift in favour of the

1
AIR 2012 Kar. 79.
2
Girijesh Dutt v. Delta Din (1934) 9 Luck. 329:147 I.P.C. 991 : (34) A.O. 35

7
nephew also fails under section 16 which provides that if in transfer of property the prior interest
fails, the subsequent interest also fails.

1.4 ENGLISH LAW

In English law, it is possible to give an estate to an unborn person for life. But this aspect of
English law was subject to a restriction called rule of double possibilities, recognized in Whitby
v Mitchell3. Under these rules while it was not permissible to confer life-interest to an unborn
person. It was called rule of double possibilities for the reason that there existed two possibilities:
one, birth of the unborn person to whom the life-estate was given and, second, the coming into
existence of issues of that unborn person.

1.5 HINDU LAW AND MUSLIM LAW-

Under pure Hindu law, a gift or bequest in favour of an unborn was void. But now, since
Transfer of Property of Act is applicable to Hindus, the transfer in favour of an unborn is valid if
it is made subject to the provisions of section 13 of the act.

Since section 2 of the Act provides that “nothing shall be deemed to affect any rule of
Mohammedan law”, section 13 is not applicable to transfers made by Muslims. However, under
Muslim law too, a gift in favour of a person not in existence has been held void.4

3
Whitby v Mitchell (1890) 42 Ch. D. 85
4
Abdul cadur v turner, (1884) 9 Bom. 158.

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 2.RULE AGAINST PERPETUITY (SECTION 14)
2.1 TRANSFER IN PERPETUITY
Perpetuity means continuous and unending transactions. It is tying up property for an indefinite
period. Transfers involving generation after generation are known as creating perpetuities.5
Perpetual transfers means the conveyance once made continues to regulate fate of that property
always in perpetuity. The course once set continues. Owners of that property (subsequent) do not
have liberty to re-direct the course of succession of that property. The terms creating such interests
are Peedhi dar Peeedhi, Generation after Generation, naslan bad naslan. These are bad and cannot
be so created.6

Section 14 of Transfer of Property Act, 1882 lays down the rule against perpetuity. This rule is
founded on the general principle of policy guiding judges, that the liberty of alienation shall not
be exercised to its own destruction and that all contrivances shall be void which tend to create a
perpetuity or place property forever beyond the reach of the exercise of power of
alienation.7Section 13 and 14 of the TOPA go hand in hand. Section 13 regulates procedure of
creating interest in favour of unborn person, whereas section 14 provides a time limit until which
the unborn transferee will get the interest so created. Where an interest is created in favour of an
unborn person on a transfer of property, such interest in favour of the unborn person shall take
effect only if it extends to the whole of the remaining interest of the transferor in the property,
thereby making it impossible to confer an estate for life on an unborn person. Further, Section 14
of TOPA provides that where an interest is created for the benefit of an unborn person (in
accordance with the provisions of section 13), such interest shall not take effect if the interest is to
vest in such unborn person after the life time of one or more persons living on the date of the
transfer (i.e. the person in whose favour the prior interest is created as required under section
13) and the minority of such unborn person. In other words, the interest created for the benefit of
an unborn person shall take effect only if the interest is to vest in such unborn person before he
attains the age of eighteen years.8

5
Singh Avatar, “The Transfer of Property Act”, Universal law Publishing CO. PVT. LTD., Allahabad ,(2006), 62
6
Tripathi G.P, “The Transfer of Property Act”, Central law Publications, 11 th ed, Allahabad, 128.
7
,Mulla, “The Transfer of Property Act”, Lexis Nexis, Nagpur, 9 th ed., 172.
8
Prem Rajani, Aradhana Bhansali and Ruchit Parikh, “A Brief Write-Up On Transfer Of Property For The Benefit Of
Unborn Person And Rule Against Perpetuity” available at,

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2.2 OBJECT OF RULE AGAINST PERPETUITY
The object of the rule against perpetuity is to ensure free and active circulation of property both
for purposes of trade and commerce as well as for the betterment of the property itself. Frequent
disposition of property is in the interest of the society and also necessary for its more beneficial
enjoyment. A transfer which renders property inalienable for an indefinite period is detrimental
to the interests of its owners who are unable to dispose it of even in urgent needs or for any
higher value. It is also a loss to society because when property is tied up from one generation to
another in one family, the society as such would be deprived of any benefit out of it. Free and
frequent disposal ensures wholesome circulation of properties in society. Rule against perpetuity
is, therefore, based also on broad principles of public policy. Stating the object of rule against
perpetuity, JEKYLL M.R. in Stanley v. Leigh9 has observed that if the rule were otherwise then:
"a great mischief would arise to the public from estates remaining forever or for a long time
inalienable or in transferable from one hand to another, being a clamp to industry and a prejudice
to trade, to which may be added the inconvenience and distress that would be brought on
families whose estates are so fettered.”
In the absence of any rule prohibiting creation of perpetuities, there might come a time when
almost all the properties of a country would have become static properties. This would cause
great hardship in the easy enforcement of law, detrimental to trade, commerce and intercourse
and may also result into the destruction of property itself. The social consequences of creating
perpetuity would, therefore, be devastating.

2.3 RULE AGAINST PERPETUITY UNDER SECTION 14

Section 14 reads as –

“No transfer of property can operate to create an interest which is to take effect after the lifetime
of one or more persons living at the date of such transfer, and the minority of some person who
shall be in existence at the expiration of that period, and to whom, if he attains full age, the
interest created is to belong.”

http://www.mondaq.com/india/x/366482/wills+intestacy+estate+planning/A+Brief+WriteUp+On+Transfer+Of+Pro
pertyFor+The+Benefit+Of, retrieved on 15-09-2015 at 3:38 P.M.
9
Stanley v. Leigh (1732) All ER 917 at p. 918

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The essential elements of the rule against perpetuity as given in this section are as follows.

(i) There is a transfer of property.

(ii) The transfer is for the ultimate benefit of an unborn person who is given absolute interest.

(iii)The vesting of interest in favour of ultimate beneficiary is preceded by life or limited

interests of living person (s)
(iv) The ultimate beneficiary must come into existence before the death of the last preceding
living person.
(v) Vesting of interest in favour of ultimate beneficiary may be postponed only up to the life or
lives of living persons plus minority of ultimate beneficiary; but not beyond that.

Property may be transferred to any number of persons who are living at the date of transfer. In
this way, vesting of interest in favour of ultimate beneficiary may be postponed for any number
of years. However, as required under Section 13, such ultimate beneficiary must be born before
the termination of the last preceding interest. Accordingly, there should not be any interval
between the termination of preceding interest and its consequent vesting in the ultimate
beneficiary; vesting of interest cannot be postponed even for a moment. By way of relaxing this
strict rule of Section 13 it is provided in Section 14 that vesting of interest may be postponed but
not beyond the life of preceding interest and the minority of the ultimate beneficiary. If in a
transfer of property, vesting of interest is postponed beyond this period as prescribed in this
section, the transfer would be void as being a transfer for an indefinite period or a transfer in
perpetuity.

2.4 MAXIMUM REMOTENESS OF VESTING-

Under Section 14, the maximum permissible remoteness of vesting is the life of the last
preceding interest plus minority of the ultimate beneficiary. Accordingly, property may be
transferred to A for life and then to B for life and then to the unborn of B when he attains the age
of majority. A and B hold property successively for-their lives, therefore, the property is tied up
for their lives one after the other. After the death of B (the last preceding interest) although it
should vest in the ultimate beneficiary, immediately but, under this section the property may be
allowed to vest in the unborn when he attains the age of majority. Minority in India terminates at

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the age of eighteen years or, when the minor is under supervision of Court, at the age as twenty
one years. But, in Saundara Rajan v. Natamjan10, the Privy Council held that since at the date of
the transfer it is not known whether or not a guardian would be appointed by Court for the minor
in future, for purposes of Section 14 the normal period of minority would be eighteen years. So,
the vesting may be postponed up to the life of the last person (B) holding property for his life and
the minority (18 years) of the ultimate beneficiary.

2.5 ULTIMATE BENEFICIARY IN MOTHER'S WOMB

Where the ultimate beneficiary is in the mother's womb the latest period up to which vesting may
be postponed, (after the preceding interest) is the minority plus the period during which the child
remains in mother's womb. For purposes of being a transferee, a child in mother's Womb is a
competent person. Where the ultimate beneficiary is in mother's Womb when the last person
dies, the property vests immediately in him while he is still in mother's womb. Therefore, the
exact period from which the minority begins to run is the date when ultimate beneficiary is
conceived.

Illustration:

A transfers certain properties to X for life and then to Y for life and then to the unborn when he
attains the age of majority. X and Y are, persons living at the date of the transfer and unborn is
the ultimate beneficiary not in existence even in mother‘s womb. Here, the last preceding life
interest is with Y. When Y dies the unborn must be already in existence either (i) in mother's
womb as a child of say, Six months or, (ii) a born child of say, six years. In case (i) the
maximum period up to which vesting of property in unborn can be postponed would be: life of Y
+ six months (period of gestation) + 18 years. In case (ii) the maximum period upto which
vesting may be postponed would be: life of Y + 18 years.

2.6 GESTATION PERIOD

The period during which a child remains in womb after being conceived is called gestation. If the
Ultimate beneficiary comes into existence (say in mother’s womb) prior to cessation of prior
estate, gestation period would not be added in permissible perpetuity limit. However if a
transferee is a person who comes in womb after this child in womb survives, lives and dies and

10
Saundara Rajan v. Natamjan AIR 1925 PC 244

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ultimate transferee now comes in womb, English law may permit 21 years even thereafter too but
not so by Indian law. Gestation is a grace to a person not in existence. It is given only once in
India after the end of last prior estate ( not 2nd gestation) but 21 years in English law may be two
grace periods. One in the beginning, the other in the end.11

2.7 MINORITY

‘Minority’ means till the ultimate beneficiary celebrates 18th birthday. This benefit would be only
for the one who is born on or before the end of prior estate or last of prior estates. A person coming
in womb after expiry of prior estate or last prior estate is not eligible to get property directly or
indirectly. He would not get in any case. Minority in India terminates at the age of 18 years as
given in Indian Majority Act. In a Privy Council case12, the bequest was to the testator’s daughters
for their lives with remainder to their children at the age of 21 years. The bequest to the children
was to be void under Section 114 and 115 of Indian Succession Act. An attempt however, was
made to support the bequest on the ground that if guardians were appointed by the Court under the
Guardians and Wards Act, they would under the act attain majority at the age of 21, but the
contention failed because at the testator’s death it was not certain that any of the children would
have guardian appointed.13

Therefore the total period of perpetuity i.e, the period for which the vesting of property can be
postponed is given below:-

(1) Where the unborn person has come into existence either at or before the expiry of the last
prior interest plus his minority interest.
(2) Where the unborn person is in womb at the expiry of the last prior interest, the period of
gestation plus minority.14

For example, A transfers certain propertied to B for life and then to C for life and then to an unborn
person when he attains the age of majority. B and C are living at the date of transfer and unborn,
the ultimate beneficiary is not in existence even in mother’s womb. The last prior life interest is
with C. When C dies, the contemplated unborn must be in existence either as a born child or unborn

11
Ibid, pg:139
12
Soundara Rajan v. Rasamaya (1925) 48 Mad. 906.
13
Abdul Fata Mohammed v. Rasamaya (1884) 23 Cal. 619.
14
Supranote 8, pg: 64

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in mother’s womb. The maximum period up to which vesting of property in unborn can be
postponed would be, in case of born child, life of C plus till the child attains the age of majority,
and in case of a child in mother’s womb, life of C plus period of gestation plus period of majority.15

2.7 CONTINGENT INTEREST UNDER SECTION 14

Vesting of interest in favour of the ultimate beneficiary may be postponed up to his minority. In
other words, the property does not vest in him until he attains the age of majority. Between the
period when last person dies and the majority of the ultimate beneficiary, the ultimate
beneficiary has a contingent interest which becomes vested upon his attaining majority. Where
the ultimate beneficiary is already born at the death of the last person but does not survive to
attain majority e.g., dies at the age of fifteen years, the interest does not vest in him and therefore
it reverts back to the transferor or his legal heir if the transferor is dead by that time.

2.8 REGARD OF POSSIBLE EVENTS NOT OF ACTUAL EVENTS

In deciding questions of remoteness of vesting, regard must be had to the possible events and not
to actual events.16 Where at the time of transfer of property there is possibility or probability that
in future it would be a transfer in perpetuity, the disposition shall be void even if at the time of
actual vesting of interest there is no violation of rule against perpetuity.

Illustration:

A makes a gift of his properties to his daughter 8 for her life and then to her children when they
attain the age of 21 years. B has no children at the date of the gift. The gift, in favour of B's
children is void because the vesting in favour of B’s children has not been made within normal
period of minority (18 years) but three years later. It may be noted that the maximum period up
to which vesting can be postponed after B ’3 death is the minority of B's children who are the
ultimate beneficiary. Normally minority terminates at the age of 18 years and only in exceptional
cases the minority extends upto 21 years. Thus, at the date of gift the probable remoteness should
have been 18 years, instead of 21 years. When the gift was made it was probable that no guardian
would be appointed by Court for the children of B. When B died, it was not certain that any of
the children would actually have guardians appointed. Accordingly, the gift in favour of B '3

15
Ibid, pg: 64
16
Pan Kuer v. Ram Narain, (1929) AC 353; Nabind Chandra v Rajni Chandra, (1921) 25.

14
children is void under this section even if the guardians were actually appointed for them. After
B's death, the property would revert back to A or his legal heirs.17

2.9 ANALOGOUS TO SECTION 114 OF INDIAN SUCCESSION ACT:

Section 14 of T.P Act corresponds to Section 114 of the Indian Succession Act, 1925, Rule against
perpetuity applies to will and transfer inter vivos in same way. Perpetual transfer is void whether
it is in will or any transfer otherwise. In Section 19.)4 the transfer cannot operate to create an
interest perpetually. No transfer can create perpetuity. In Section 114 of Succession Act, the
bequest is not valid if it creates perpetuity and as such delays the vesting perpetually.18

“No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-
time of one or more persons living at the testator's death and the minority of some person who
shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing
bequeathed is to belong."

In Veerattalingam v. Ramesh19, A executed a Will giving the Possession of her property to her
sons without any power of alienation, and after that, a life interest was created in favour of her
son’s sons, who were also alive at the time of executing the bequest. The testament further provided
that after the death of such grandson, the property was to vest in the great –grandson (who were
unborn on the date of execution of the will) absolutely. The apex court held that the bequest was
not hit by the rule against perpetuity as successive life interests could be created in favour of any
number of living persons, and both sons and grandsons in whose favour the life interest was created
were living on the date the bequest was created.

17
Soundara Rajan v. Natarajan, AIR 1925 PC 244
18
Saxena, Poonam, “Property Law”, “Lexis Nexis Butterworths Wadhwa”, Nagpur, 2 nd Ed., 123.
19
Veerattalingam v. Ramesh(1991) 1 SCC 489.
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2.10 EXCEPTIONS TO THE RULE AGAINST PERPETUITY
a) TRANSFER FOR THE BENEFIT OF PUBLIC
Where a property is transferred for the benefit of public in the advancement of religion,
knowledge, commerce, health, safety or any other object beneficial to mankind, the
transfer is not void under the rule against perpetuity.50 This exemption is necessary
because transfers of property for the benefit of public generally are made through the
medium of religious or charitable trusts. In the trusts, the property settled is tied up for an
indefinite or perpetuity period so that its income may be utilized for ever for the object
for which the trust is created. Application of the rule against perpetuity on trusts would
render every trust void and it would be impossible to create any trust for the benefit of
public.
(b) PERSONAL AGREEMENT
Personal agreements which do not create any interest in property are exempted from the
rule against perpetuity. Rule against perpetuity is applicable only to a transfer of
property. If there is no transfer of property i.e. no transfer of interest, the rule cannot be
applied. Contracts are personal agreements even though the contracts relate to rights and
obligations in some property.20
In Ram Baran V. Ram Mohit21 the Supreme Court held that a mere contract for sale of an
immovable property does not create any interest in immovable property and therefore, the
rule cannot apply to such contracts eg. it cannot apply to a covenant of pre-emption.
Similarly, where the Shebaits of a temple, under an agreement, appointed pujaris out of a
particular family to perform religious services in the temple, the agreement was valid
because the Court held that being a personal agreement, it was not hit by rule
against perpetuity22

Rule against perpetuity is not applicable to mortgages because in mortgage there is no creation of
any future interest. The right of redemption is a present interest in property and a stipulation that

20
Jagar Nath v. Chedi Dhobi, AIR 1973 All. 307
21
Ram Baran V. Ram Mohit AIR 1967 SC 744
22
Nafar Chandra v. Kailash, (1921) AC 328.

16
it may be redeemed any time by the mortgagor, does not create any interest in future on which
the rule may be applied.23

The rule against perpetuity is not violated if a settlement deed reserves life estate for the executor
and his wife with a vested remainder to their unborn children. In P. Venkata Subanna v. D.
Chimm Panayya24 the husband executed a settlement deed under which he created a life estate in
favour of his wife so that she may enjoy the property during her life together with husband (the
executor) and after his death upto her remaining life and after her death the property was to vest
in their children who would be born by that time. The Andhra Pradesh High Court held that the
settlement deed was valid and it did not violate the provisions of Section 14. The Court observed
that an interest is created in the spouses in presenti of its usufruct (benefit) for their personal
benefits, the settlement is not void under Section 14.

2.11 RULE AGAINST PERPETUITY UNDER HINDU AND MUSLIM LAW

The Transfer of Property Act was made applicable also to Hindus by the Amending Act of 1929.
Now, the provisions of this Act including Section 14 are applicable to Hindus. But, even before
this amendment, the rule against perpetuity was applicable to transfers made by Hindus by local
enactments ag. Hindu Disposition of Property Act, 1916 and Madras Act 1914. However, apart
from these statutory provisions, a transfer of property in perpetuity was held void under Hindu
law except gifts for religious or charitable purposes.25

Although Chapter II of the Transfer of Property Act is not applicable to Muslims but a gift to
remote and unborn generations was held void though exception has been made in case of
wakfs.26

2.12 DIFFERENCE BETWEEN ENGLISH AND INDIAN LAW OF PERPETUITY.-

(a) The Perpetuity period is different. Under English law, the perpetuity period is a life or any
number of lives when the instrument under which the interest arises takes effect, plus a

23
Padmanabha v. Sitarama, AIR 1928 Mad. 28.
24
P. Venkata Subanna v. D. Chimm Panayya AIR 1989 AP 34.
25
Sookhmoy Chunder v. Monoharri Dassi, (1885) 11 cal. 684
26
Abul Fata Mohamed v. Rasamaya, (1894) 22 Cal. 619

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 term of 21 years. Under Indian law, it is the life or lives in being at the time of grant plus
the period of minority of the beneficiary taking under the grant.
(b) Under English rule the additional period of 21 years allowed after lives in being is a term
in gross without reference to the infancy of the person. Under the Indian Statues the term
is the period of minority of the person to whom if he attains full age the interest created is
so to belong.
(c) The period of gestation, where it actually exists may be added to the perpetuity period as
above defined. In English law it admits of addition at both ends of perpetuity period. But
in Indian law it may be added only at its commencement.
(d) The Law of property Act,1925 by Section 163 has validated certain remote gifts by
allowing the substitution of the age of 21years when the gift is to fail for remoteness on the
ground that the ascertainment of the beneficiary or the class of an exceeding 21 years.
There is no corresponding provision under the Indian law.27

27
Ibid, pg 142

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BIBLIOGRAPHY

 Avtar Singh, “The Transfer of Property Act”, Universal law Publishing CO. PVT. LTD.,
Allahabad, (2006).
 Dr. G.P. Tripathi, “The Transfer of Property Act”, Central law Publications, 11th ed,
Allahabad.
 Mulla, “The Transfer of Property Act”, Lexis Nexis, Nagpur, 9th Ed.
 Dr. R.K. Sinha, “The Transfer of Property Act”, Central law Agency Allahabad, 14th Ed.
 Dr. Poonam Pradhan Saxena, “Property Law”, “Lexis Nexis Butterworths Wadhwa”,
Nagpur, 2nd Ed.

Webliography:

 Prem Rajani, Aradhana Bhansali and Ruchit Parikh, “A Brief Write-Up On Transfer Of
Property For The Benefit Of Unborn Person And Rule Against Perpetuity” available at,
http://www.mondaq.com/india/x/366482/wills+intestacy+estate+planning/A+Brief+Writ
eUp+On+Transfer+Of+PropertyFor+The+Benefit+Of, retrieved on 15-09-2015 at 3:38
P.M.

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