A gift in favor of an unborn person is valid under Section 13 of the Transfer of Property Act if the interest created for the benefit of such person extends to the whole of the remaining interest of the transferor in the property.

Srinivasan, J.

1. The 1st defendant in the suit is challenging the correctness of the decree for partition and separate possession of one-half share passed by the trial Court, and confirmed by the lower appellate Court.

2. The plaintiff is the son of one Vadivelu Udayar by his second wife Pattu Ammal. The 1st defendant is the son of the Vadivelu Udayar by his first wife Thangammal. Vadivelu Udayar's mother-in-law Meenakshi Ammal executed a gift deed on 3.6.1937 marked as Ex. A-3 by which, she gave the suit properties to Thangavelu Udayar, who was a minor at that time, and Vadivelu Udayar. She handed over possession of the properties to them to be enjoyed by them absolutely. The gift deed proceeds to state that in the event of Vadivelu Udayar marrying for a second time and begetting male issues, such issues would take the properties along with Thangavelu Udayar absolutely and enjoy the same. It is the case of the plaintiff that the gift deed was executed just prior to the marriage of Pattu Ammal with Vadivelu Udayar which was brought about at the instance of Meenakshi Ammal, the donor, when Pattu Ammal's father had insisted upon making of a provision to safeguard the interests of Pattu Ammal's children. It is not necessary to consider whether that case is proved or not in view of the fact that Ex. A-3 has been found to be genuine by both the Courts below. In fact, the decision of the Courts below as regards the genuineness of Ex. A-3 is based upon the admission made by the 1st defendant in Ex. B-5, a notice issued by him on 17.2.1975 to the 5th defendant.

3. Once Ex. A-3 is accepted to be genuine, the only question that remains to be considered is whether the gift in favour of the plaintiff is valid or not. It is contended on behalf of the appellant that the plaintiff was an un-born person on the date of Ex. A-3 and there can be no gift in his favour. It is contended that Ex. A-3 is hit at by the provisions of Section 13 of the Transfer of Property Act. Section 13 of the Transfer of Property Act reads thus:

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.

It is argued that the interest created for the benefit of the unborn person viz., plaintiff did not extend to the whole of the interest remaining after the creation of prior interest, in favour of Thangavelu and Vadivelu. I am unable to agree with this contention. In Ex. A-3, the property was given 'to Thangavelu and Vadivelu to be enjoyed by them. As regards the unborn children, the provision is that if Vadivelu married for a second time and begot male issues, such male issues would take along with Thangavelu. The interest that remains after the provision made in favour of Thangavelu, would in entirety go to the unborn children to be taken, on their birth. The provisions of Section 13 of the Transfer of Property Act are not, in any way, violated by the terms of Ex. A-3. Learned Counsel for the appellant relief upon the decision of the Supreme Court in Raj Bajrang Bahadur v. Bakhtraj Kuer. In that case, the Supreme Court had to consider the terms of a will, by which the gift was made in favour of a class of persons. At the time when the testator died certain persons in the class were not born. The Supreme Court held that the gift was valid with reference to the persons, who were in existence at the time of the death of the testator and not valid with regard to others, who were not born at that time. That decision proceeded on the footing that the legatee under the Will should have come into existence at the time when the testator died, at which point of time, the Will comes into force. That decision will not apply to the facts of the present case. Reliance of Secti