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Creation Of Interest In The Property: Section 13 Of Transfer Of Property Act

Vanshita Singh ,
  11 October 2022       Share Bookmark

Court :
Supreme Court of India
Brief :

Citation :
Appeal (civil) 4385 of 2001

F.M. Devaru Ganapati Bhat Vs Prabhakar Ganapathi Bhat

19 December 2003

Justice Y.K.Sabharwal and JusticeDr.A.R.Lakshmanan

Petitioner: F.M. Devaru Ganapati Bhat
Respondent: Prabhakar Ganapathi Bhat


The trial court has made a decision about the partition and possession lawsuit that the respondent had filed, in which he claimed a half share of the suit properties. In the contested decision, the High Court dismissed the appellant’s initial appeal. The gift deed dated September 9, 1947, signed by Smt. Mahadevi, the younger sister of the parties’ father Ganapathi, served as the basis for the lawsuit’s claims.


Transfer of Property Act 1882

  • Section 13 -Transfer for benefit of unborn person. - 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.
  • Section 20 -When unborn person acquires vested interest on transfer for his benefit. - Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.


  • The brothers of parties. The senior brother is the appellant/defendant. The younger sibling is the respondent/plaintiff. The appellant was a minor, aged 13 at the time the gift deed was executed. Respondent had not yet been born at the time. Ganapathi sold the suit properties to his younger sister Mahadevi in 1936.
  • Because Ganapathi was in certain vulnerable circumstances, the sale was made. Mahadevi had no problems. Her enjoyment of the estates began in 1936 and continued until the gift deed was signed. Under the in dispute gift deed, the identical properties were given.
  • However, the controversy in this appeal is limited to one particular property, specifically Survey No. 306. The respondent’s claim regarding the division of the remaining properties is not contested by the appellant. The respondent does not have the right to demand partition of the stated property, in accordance with the appellant’s interpretation of the gift document, because property survey No. 306 was handed to him unconditionally.
  • Alternately, it was argued that Section 13 of the Transfer of Property Act, 1882 renders the establishment of an interest in favour of the respondent, who was not alive when the gift deed was made, invalid.
  • The donor specified that she would use property survey number 306 until she passed away in the gift deed. The argument is that upon accurate construction of the gift document following Mahadevi’s passing, the appellant was made the only and legal owner of property survey number 306. Response has no authority over it. The way the donation deed is written will determine the response.


  • Whether the gift deed dated 9 September 1947 was valid or not?
  • Whether the creation of interest in the property in question in favour of respondent in view of Section 13 of the Act was valid or not?


  • The contention placed by the learned counsel for the appellant was that the interest intended to be created under the gift deed was invalid because the donor did not create the interest of the complete property survey No. 306 for the benefit of the respondent, an unborn male child.
  • In support, learned counsel placed reliance on the observations made in the decision in Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7].
  • It was further submitted that no interest could be created in favour of an unborn child, but when the gift was made to a class or series of individuals, some of whom were living and some of whom were not, it did not fail entirely; it was valid with regard to the individuals who were alive at the time of the testator’s death and invalid as to the remaining individuals.


  • The transfer of an interest in favour of an unborn child is not prohibited. An interest may be acquired for the benefit of a child who will become vested upon birth under Section 20. No clause stating that a full interest in a property cannot be created in favour of an unborn person has been brought to the court’s attention. Regarding the facts and circumstances of the current case, Section 13 was not applicable.
  • In this instance, the donor gave the property to the appellant, who was still alive, and also included a provision stating that any future male children of the appellant’s brother would become joint owners with him. Section 13 of the Act does not apply to such a requirement. Section 20 of the Act permits the establishment of such a right.


As a result, upon his birth, the respondent acquired a claim to the property. In this opinion, the second claim was equally without merit. For the aforesaid reasons, the appeal was dismissed. The costs were left up to the parties.

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