All India Bar Examination (AIBE) 3-III Previous Year Question Papers with Answers

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77.

A, a married Hindu lady, transfers some of her immoveable property to B to be held in trust for the benefit of her son C, until A's unborn daughter attains majority. However, the trust deed stipulates that if her unborn daughter marries outside the religion, the immoveable property is to revert in favour of the trust and be transferred to C. Which of the following statements is the most accurate application of the principle below regarding the transfer to the unborn daughter ?


Principle :

A transfer to an unborn person must be preceded by a transfer in favour of a living person, and the transfer to the unborn person must be the transfer of the while of residual interest in the property.

A: The transfer in invalid as A has transferred the immovable property to a trust, and thus there has been no preceding transfer to a living person.
B: The transfer is invalid because it is conditional on whether A's unborn daughter marries within the religion, and this is not a transfer of the whole of residual interest in the property.
C: The transfer is valid.
D: The transfer is invalid because A has transferred the property to C and then her unborn daughter through the 'same trust deed.
E: The transfer is invalid because the transfer to her unborn daughter is conditional upon her attaining majority, and this is not a transfer of the whole of residual interest in the property.

The answer is: B

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Explanation

The correct option is B: The transfer is invalid because it is conditional on whether A's unborn daughter marries within the religion, and this is not a transfer of the whole of residual interest in the property.

Explanation:

According to the principle, a transfer to an unborn person must be preceded by a transfer in favour of a living person, and the transfer to the unborn person must be the transfer of the whole of residual interest in the property. This means that the unborn person must get the absolute interest in the property without any conditions or limitations.

In this case, A has transferred some of her immovable property to B to be held in trust for the benefit of her son C, until A's unborn daughter attains majority. This is a valid prior transfer in favour of a living person, as B and C are both living persons at the time of the transfer. However, the transfer to A's unborn daughter is not valid, as it is subject to a condition that if she marries outside the religion, the property will revert to the trust and be transferred to C. This is not a transfer of the whole of residual interest in the property, as A's unborn daughter does not get an absolute interest in the property, but only a contingent interest that may be defeated by her marriage choice. Therefore, the transfer to A's unborn daughter violates the principle and is invalid.

The other options are incorrect because:

Option A is incorrect because A has not transferred the immovable property to a trust, but to B who is a living person and holds the property in trust for C and A's unborn daughter. Therefore, there has been a preceding transfer to a living person as required by the principle.

Option C is incorrect because the transfer is not valid, as explained above.

Option D is incorrect because A has not transferred the property to C and then her unborn daughter through the same trust deed. A has transferred the property to B who holds it in trust for C until A's unborn daughter attains majority, and then for A's unborn daughter subject to a condition. Therefore, there are two separate transfers for C and A's unborn daughter, not one.

Option E is incorrect because the transfer to her unborn daughter is not invalid because it is conditional upon her attaining majority, but because it is conditional upon her marrying within the religion. The condition of attaining majority is not a violation of the principle, as it is a reasonable time limit for vesting of interest. The condition of marrying within the religion, however, is a violation of the principle, as it restricts the absolute interest of the unborn person.