Question

A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A's second son. Can the interest so created for the benefit of the eldest son take effect?

• A. Yes
• B. No
• C. It is a valid transfer
• D. None of the above

Hint:

Remember the two conditions of Section 13, TPA: (1) No direct transfer to an unborn person (must be preceded by a life estate). (2) The unborn person must be given the \textbf{entire remaining interest} (i.e., absolute interest, not a limited life interest). An interest that violates a rule of property law does not necessarily void all prior interests in the same transfer.

Answer 1

The Correct Option is A

Step 1: Understanding the Concept:
This question tests the rules regarding the transfer of property for the benefit of an unborn person, as laid down in the Transfer of Property Act, 1882. The key provisions are Section 13 (Transfer for benefit of unborn person) and Section 14 (Rule against perpetuity).
Step 2: Detailed Explanation:
Let's break down the transfer:
1. Life Interest for A and intended wife: A valid life interest is created for existing persons.
2. Life Interest for the eldest son: The eldest son is an unborn person at the time of the transfer. According to Section 13, a transfer to an unborn person must be preceded by a life interest in favour of a living person. Here, the interest for the eldest son is preceded by the life interests of A and his wife.
3. Absolute Interest for the second son: The ultimate beneficiary is the second son (also an unborn person), who gets the property after the life interest of the eldest son. Section 13 requires that the whole of the remaining interest of the transferor in the property must be given to the unborn person.
The question specifically asks if the interest created for the eldest son can take effect. The transfer to the second son is invalid because it violates Section 13. A life interest cannot be created in favour of an unborn person followed by another interest for another unborn person. The transfer to an unborn person must be of the entire remaining interest.
However, the question is not about the validity of the transfer to the second son, but about the interest of the eldest son. Under the doctrine of severability (often applied in such cases), the invalidity of a subsequent interest does not necessarily invalidate a prior valid interest. The life interest created in favour of the eldest son is preceded by a valid life estate (for A and his wife). It is itself a valid interest. The invalidity attaches to the subsequent gift to the second son. Therefore, the life interest created for the eldest son can take effect.
Options (A) and (C) are similar. "Yes" is a direct answer to the question "Can the interest... take effect?". "It is a valid transfer" is a broader statement. Given the specific question, "Yes" is the most precise answer.
Step 3: Final Answer:
Yes, the interest created for the benefit of the eldest son can take effect, as it is a valid prior interest, even though the subsequent interest created for the second son is void.