Girjesh Dutt v Data Din (1934)

Transfer of Property · Unborn & Perpetuity

Facts.

A woman made a gift of her property to her nephew’s daughter B for life, then absolutely to B’s male descendants if any, but in default of male issue to B’s daughter for life (without power of alienation), and, if B had no descendants at all, to the settlor’s nephew. B died without any issue.

Issue.

Was the gift to B’s unborn daughter — who was given only a limited, life interest — valid under s.13, and could the ultimate gift over to the nephew take effect?

Held.

The court held the gift to the unborn daughter void: s.13 requires that an interest created for an unborn person extend to the whole remaining interest, so a mere life interest given to an unborn person fails. Because the ultimate gift to the nephew was dependent on that void prior interest, it failed as well.

Why it matters.

It is the standard illustration of s.13 — you may provide for the unborn only by giving them the entire remaining interest, never a life estate — and of the rule that a gift dependent on a void prior transfer also fails.

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