Property law in India has changed significantly during the last several decades.

Society has progressed from the time of rejecting fundamental property rights to the time where it recognising intellectual property rights, even for women. One such domain which is highly reformed is transferring property for unborn persons. This property law concept involves transferring assets for the benefit of an unborn person who is "en ventre sa mere"[1].

This issue contains several grey areas that must be examined. This study aims to explain the provisions of S. 13 and highlight relevant examples. The article discusses the link between S. 13 and other clauses of the Transfer of Property Act, 1882.

Introduction:
For many years, children have been regarded as our most valuable assets as they interstate the property and take it further. Historically, regulations have protected unborn children from illegal abortion. One major issue is that our Indian law is unclear in many areas, yet it protects the rights of the unborn, including property rights.

Historically, we have seen an unborn child as a living person and the Transfer of property act legislation has existed and has been enacted for centuries to govern the aspects of transfer of property to even a unborn child. By the mid-nineteenth century, society recognised the need of caring for children both before and after delivery thus we saw major provisions in the Transfer Of Property Act with respect to the transfer of property to an unborn child and relevant provisions are as follows.

Property transfers cannot benefit unborn individuals as defined in Section 5[2] of the TP Act, which only applies to living individuals. However, if the requirements listed in S. 13[3] of the TP Act are met, then such a transfer is permitted:

1. An interest must come before an unborn person's interest.
2. When the previous interest ends, the unborn individual must still be alive.
3. The whole residual interest of the transfer must be the interest established in the unborn person's benefit.

The Transfer of Property Act of 1882 presents intricate challenges, particularly concerning Section 13. This section addresses the transfer of property for the benefit of unborn individuals. However, ambiguities persist, making it essential to explore potential rectifications. Additionally, we delve into the legal implications when expected pregnancies do not occur or when the intended recipient is never born alive.

Our analysis extends to common law practices in other countries, considering their applicability to Indian legislation. Despite strict implementation, disparities remain, prompting a comprehensive examination of Section 13 and its relevance in contemporary society.

Research Problem
The clarity and sufficiency of Section 13 of the Transfer of Property Act of 1882 are essential for valid certainty in property transfers to unborn individuals. Regardless, there remains uncertainty about how Indian courts interpret and implement these agreements, as well as whether unborn children's property rights are adequately protected and defined by law. This research question seeks to assess the level of legal clarity in the analysis of Section 13 and to fundamentally analyse the benefits it confers on unborn children, while distinguishing any ambiguities within these legitimate arrangements that may influence the reasonable requirement of property rights.

Research Questions:

• Whether Does Section 13 of the Transfer of Property Act, 1882 Allow the Transfer of Property to an Unborn Person, if These Enactments Are Ambiguous in Nature?
• Whether Is There Any Recourse When a Property Is Been Registered to an Unborn Child and for Its Benefit at Times if the New-Born Infant Is Not Conceived or Born Alive?
• Whether Is There Any Better Aspects That Can Be Borrowed by Indian Legislation to Improvise the Aspects Related to the Transfer of Property to the Unborn Child from the Common Law Foreign Legislations?

Research Objective:

• To Analyse if the Unborn Child in India Have the Right to Have Property Rights; to Also Analyse if These Laws and Provisions Are Ambiguous in Nature.
• To Analyse Other Legislations and to Analyse a Comparative with the Foreign Courts and Legislations W.r.t to the Transfer of Property to an Unborn Child

Research Methodology:

This Paper Is Completely Based on the Secondary Method of Research Approach Where the Data Used Are Collected and Analysed from the Legal Documents W.r.t the Transfer of Property Act and Transfer of Property to Unborn Infants Related Document and Other Legislative Texts, Case Laws of High Courts Along with Few Case Judgments of the Honorable Supreme Court of India Along with Honorable Supreme Court of Foreign Court and Other Competent Courts, Existing Literature from a Selected Website Such Like Jstor Etc.

This Research Is Conducted in Such a Manner Where It Provides a Comprehensive Understanding of the Role Section 13 and Other Provisions and Its Protections with Respects to Transfer of Property to Unborn Children Legal System Offering an Overview and Outlines for the Suggesting.

Literature Review:

• Alexander, G. S. (2013). Unborn Communities. Cornell Legal Studies Research Paper, (13-83) states that Property owners owe moral obligations to future generations, according to a human-flourishing theory of property. However, these obligations are grounded on dependence, with the expectation that future generations will continue life-transcending projects. As the distance between living and unborn increases, obligations to future generations weaken, placing the author in an intermediate position.
   
• Nemani, N. S. (2021). Transfer of Property to Unborn Child. Issue 5 Int'l JL Mgmt. & Human., 4, 2081states that the Transfer of Property Act 1882 defines "transfer of property" as an act of transferring property to a living individual, including companies, associations, or bodies corporate. Section 13 of the act exceptions this definition, stating that an immovable property can be transferred to an unborn child if the child is present in the mother's womb. According to Indian law, any live person may transfer property to an unborn child as long as the child is still in the mother's womb.
   
• Srinidhi, S., & Panicker, M. B. (2022). A Critical Analysis on the Property Rights of Unborn Child. Baltic Journal of Law & Politics, 15(4), 820-829 states that This empirical study aims to determine if unborn children in India have property rights and why they deserve them. The study uses a convenient sampling method and 210 respondents, with the aim of determining if laws are ambiguous for unborn children's property rights. The study emphasizes the importance of ensuring that unborn children are treated as ordinary individuals and deserve the same rights as any other person. It also calls for unambiguous decisions regarding property rights for unborn children.
   
• Gupta, A. (2011). Property Laws for the Non-Existent: A Study on Transfer for the Benefit of an Unborn Person. Available at SSRN 2115177 states that Property Law in India has evolved significantly over the years, recognizing intellectual property rights and denying basic rights to certain groups. However, the transfer of property for unborn persons remains a complex area with many grey areas. This study examines the terms of Section 13 and its relevance to the Transfer of Property Act of 1882.
   
• Legal Translation and Legitimate Vagueness in Property transfer to Unborn People under Section 13 of the transfer of Property act of 1882. States that the Indian legal discourse on property rights for unborn persons is complex and scholarly, with judicial interpretation varying depending on the case. The Act, while comprehensive, can lead to ambiguity and varied enforceability.
  
  Comparing Indian law with global systems and examining socio-legal implications suggests a need for legislative reform. Further research is needed to ensure clarity and consistency in judicial application and empirical studies to support or contest existing legal scholarship.
   
• Law and the Unborn Child: The Legal and Logical Inconsistencies; Notre Dame Law Review; volume 46/ issue 2/ article 4 written by William J Maledon states that The property rights of an unborn child are ancient and have been recognized in common law. They are considered a legacy, guardian, and limited estate. English courts have held that posthumous children are entitled to an accounting of their father's intestate estate. The Indiana Supreme Court ruled that an unborn child had equal rights and title to property with their mother.
  
  The law of property recognizes the rights of an unborn child from conception for all property rights, including being an income recipient and a beneficiary in an action for their father's wrongful death and for unborn child.

Analysis:
Section 5[5] of the Transfer of Property Act, 1882 defines transfer of property as the act by which a living person (living person includes a person, a group of persons, a company or association) conveys (transfers title of property) property in the present or in the future to one or more living persons or to himself. Transfer may also take place inter Vivos, which indicates that a property is given to another person as a gift in a relationship of trust. [6]

Section 7 of the Act specifies who is competent to transfer, stating that the individual must be a major and of sound mind. The previous sections show that a transfer between two live people is conceivable and valid. But when the aspects of the transfer of property to a unborn person when the mother is pregnant complicates the issue to an extent.

It is also used to determine the legal and moral status of abortions. Property is often transferred to a living human, but it may as per section 13[7] of transfer of property act a property can also be transferred to an unborn child under the benefit of the unborn-child and other circumstances Transferred to the unborn, as permitted by law.

Major point to be noted as per the section 13 is that property cannot be transferred directly to an unborn child, although it may be transferred for their benefit. This transfer is only possible with the use of a trust, and the full residual of the properties interest must be transferred to the unborn beneficiary.

When any person wants to transfer a property to an unborn they must first transfer the property to a living person[8] who gets to have the benefit of that said property, only after the death of the said person the property can go to the unborn child when the primary condition is been fulfilled i.e., he is born and alive at the time of the transfer of the property to his/her benefit.

This indicates that the transferee must exist on the day of transfer, which is a legally acceptable reason as to why property cannot be transferred directly to an unborn person. This rule is enacted to ensure that someone is there to protect and take-care of the property until the child is born and up to an extent.

Transfer Of Property To Unborn Child And Its Historical Implications & Circumstances The Property Is Transferred To An Unborn Child Under The Transfer Of Property Act:

1. HINDU LAW - Any gift or inheritance of property in favour of the unborn was initially completely void under the Hindu tradition. However, now that the Property Transfer Act is enacted and it applies to Hindus, transfers in behalf of the unborn are authorised provided they are performed in accordance with the provisions of Section 13 of the Act.
   
   Under the case of Tagore v. Tagore we can see that the privity council have passed a judgement stating that According to Dayabhaga Law, two Hindu brothers signed a document that said their properties would be passed down permanently through the direct male line, including to their adopted sons. The document said that if there were no male heirs in one branch, the properties of that branch would go to the other branch, with the same condition. If there were no male descendants in the direct male line in either branch, the properties were to be given to the adopted sons.
   
   The Privy Council said the deed wasn't valid because it tried to change the way Hindu Law handles inheritance. They also said there was no gift-giving at all because the designed estate could be taken away if he died without any male children.[9] This is one case where we can see that there has been a lot of disparities and ambiguity in the section which sometimes require judicial intervention to resolve things. [10]
    
2. MUSLIM LAW - As per Section 13 of the Transfer of Property Act which states of transfer of property in the benefit of the unborn person does not apply to transfers made by Muslims since section 2 clearly states that "nothing in the 2nd chapter of the said act shall be deemed to affect any rule of Mohammedan law." [11]
   
   However, in Islamic law, a gift i.e., Hiba requires a person and a beneficiary at the time of giving and acceptance of the gift, thus section 13 primarily defeats the purpose and it is to be said that direct transfer of property to an unborn person is not possible as the person is not still in the existence, thus transfer to a non-existent person is deemed in waste and void.
   
   A gift of a life interest is valid i.e., to say A life interest, on the other hand, enables you to grant the property to someone for the remaining time of their life, after which it is passed on to the next generation or according to the terms of a will or deed in favour of an unborn person is acceptable if the person is born when the interest becomes available.[12]
    
3. ENGLISH LAW - In Indian law, an estate formed for the benefit of an unborn child must include all property interests, including a previous interest in favour of a live individual. An unborn child may only be awarded an absolute stake, and creating a restricted interest would render the transfer invalid. In English law, a restricted interest may be formed for an unborn child but not after birth.[13]

Circumstances Under Which Property Is Transferred To An Unborn Child Under The Transfer Of Property Act:
A property cannot be direct transfer to an unborn kid which prima facie violates section 13 of the said act. The unborn may inherit the property only if the property is been transferred under to the benefit of that person. [14]

But in cases when the child is still not conceived, property cannot be given or gifted to someone who is not even in the mother's womb it becomes void ab initio as per the act. Therefore, Section 5 of this legislation stipulated that property transfers may only occur between two living individuals, meaning the transfer must have existed at the time of the transfer.

Legally speaking, every property transfer involves a transfer of interest; upon transfer, the transferor gives up any interest in the transferred asset and instantly transfers it to the receiver.

This is one of the good reasons why property cannot be passed directly to an unborn child. Transfer in support of the unborn Although it is not legal to directly transfer property to an unborn kid, it is nonetheless feasible to do so for the unborn person's benefit.

According to Section 13, the following circumstances permit the transfer of property for the benefit of an unborn child:

1. No direct transfer.
2. Transfer for the Unborn must be valued by our life interest in favour of a Person in existence at the time of the transfer, and
3. Only absolute interest may be transferred in behalf of the unborn.[15]

Following few other rules The transfer of the property can be done in 2 methods based on the situations and circumstances i.e., the transfer of property can be confer to the unborn person for either absolute interest or vested interest to the property and this shall be chosen based on the circumstances and events i.e.,

The vested interest[16] in property is passed to an unborn child upon birth, which includes title and the right to alienate it, but not possession. The unborn child is typically entitled to vested interest at birth, but Section 14 allows for a delay until they reach 18 years old. This allows the transferor to state that the unborn will only receive the property after reaching a set age, such as 16 years.

The regulation states that vested interest may only be deferred until 18 years old to prevent the property becoming inalienable for indeterminate lengths of time. When the life interest holder dies, the unborn receives absolute interest, which includes the right to alienation. However, under Section 13, after the unborn is born and the absolute interest is transferred, the unborn is not entitled to ownership of the property as absolute interest transferred to an unborn child and a person who is not attended the age of majority violates section 7 of the said act.

Thus, the transfer to an unborn person is permitted by forming a life interest in the benefit of another live person, which includes the right to enjoy the property but does not include the right to alienate it. Transferring property to unborn individuals of various generations breaches Section 14[17]'s prohibition against perpetuity, as it depreciates the property's worth, rendering it inalienable for unlimited lengths.[18]

Intentions Of The Legislature To Enact The Section 13 In The Year 1882 And Certain Ambiguities In The Act:
As we saw in the above that in India there is no such practice of transferring a property to an unborn either in the Hindu tradition or in the Muslim culture and the transfer of property to the benefit of the unborn i.e., its void[19] but was mainly seen in the English culture during the year 1882, with that Intentions only there was the intention of legislature to enact the Section 13 in the Transfer of Property Act of 1882 which was to establish a legal framework for the transfer of property to unborn person[20], a circumstance which had not been completely addressed by the law previous to this Act.

This section tackles the complexities of passing property rights to persons who have not yet been born, ensuring that such transfers are carried out in an organised and legal way. The objective of Section 13 is two-fold. First, it tries to guarantee that property may be transmitted in advance of a person's birth, allowing for inheritance planning and the preservation of property rights for future generations.

Second, it assures that such transfers are carried out in accordance with the legal concept that the receiver of a property transfer must exist legally at the moment the transfer takes effect. Section 13 avoids the legal problem of passing property directly to an unborn person by necessitating the creation of a life interest in the property in the name of someone living at the time of transfer.

However, the interpretation of Section 13 has be seen as ambitious in only certain circumstances as we can see in the below:

1. The first and major ambiguity is that the definition and statues of the term "unborn person" has not been defined in the said act which lead to much of unclear and it has been lead to a huge confusions during its interpretation as in today's circumstances the society has been advanced a lot where children are born under the medical aspects such like IVF and there has been a various advents in the medical field where the foetus can be brought up in a test tube which is commonly known as test tube baby. Does this all come under the ambit of "en ventre sa mere" is highly ambiguous.
   
   Also the act fails to explain at what time i.e., the time of gestation period at which the right in favour of an unborn person can be established is very highly uncertain. As discussed in the below we can see that there are a lot of disputes that has arisen w.r.t the validity of the transfers made in just anticipation of a child's birth or at a mere presumption of a conceive.[21]
    
2. There is no proper detailed explanation of the mechanism of the transfer where it lacks to give proper guild lines and procedures as to how to structure the trusts and what are the formation procedure which will be established in the benefit of the unborn child is very much unclear.
   
    
3. The 3rd problem can be analysed in terms of a case law where according to the case's facts, "A" gave "B," her nephew's daughter, a gift of her properties. A gave the gift for B's life, after which it went to B's daughter without any intention of alienation, and finally, in the event that B had no male or female heir, to A's nephew. B passed away without having kids.
   
   Given the circumstances of the case, the court determined that the gift intended for unborn daughters was unlawful under Section 13 because it represented a limited interest.
   
   As per Section 13, an interest created in favour of an unborn person should be an absolute interest where Determining as to what constitutes an "absolute interest" to unborn complicates the matters even further as being not described efficiently when compare to vested interest in section 19 and contingent interest in section 21.
   
   The condition that the transferor's whole residual interest vests in the unborn child at birth allows for legal arguments about whether a transfer fits the section's criteria, so in this case, the gift made in favour of B was void while the gift made in favour of B's daughter was valid. According to Section 16 of the Transfer of Property Act, 1882 (Transfer to take effect on failure of prior interest), any further subsequent transfer to A's nephew will likewise be void.[22]
   
   Thus we can state that the section 13 of the act is very ambiguous; unclear and uncertain to decide a matter in court thus it requires a broadening of its scope to be less ambiguous and shall be subjected to few amendments to reduce the ambiguity and shall be also be amended be subjected to an amendment as there are a lot of new reproduction tools and changing family arrangements have made it harder to apply Section 13, section 13 wasn't enacted and written with these modern issues in mind when it was first made. Which makes it at most need to enlarge its scope and broaden its aspects.[23]

Recourse In Case Of Child Not Being Born Or Not Been Able To Conceive:
Whenever a property is being transferred for the benefit of an unborn child, it is usually known to be held in with the trust or as a life interest for someone who is alive at the time of transfer. The interim holder's interest is been very clearly established that until the unborn child is born and, presumably, reaches a particular age (typically 18 years).

However, if the unborn child is not conceived or born alive, the property transfer intended for their benefit may not occur as originally anticipated. In such instances, the property would be normally return/given back to the transferor's estate or shall be dealt as accordance with the terms of the trust or will if any other recourse is been prescribed. The particular conclusion may be determined by the terms included in the original transfer agreements.

As per the section 21[24] of the transfer of property act The subject of what happens if the unborn child to whom the property is transferred is not conceived or born alive requires the use of Section 21 of the TP Act and the idea of contingent interests. A contingent interest is formed in favour of the unborn person, which is conditional on the unborn person being born alive. If the unborn child for whom the property was designated is not created or does not survive birth, the transfer fails, and the property does not pass according to the conditions specified for the unborn child. Instead, the property would return to the transferor's estate or be handled with in accordance with any further provisions provided in the trust or will.[25]

An Comparative Analysis To Common Law Countries And Indian Legal Aspects W.R.T Transfer Of Property To An Unborn Person:

• England:
  We can see that In England there has been a very wider aspect of the term unborn is expressed and it is has been very clear with respect to the transfer of the property under what circumstances is applies and how is it delt is clearly given In Wallis v. Hodson[26], an English court ruled that a posthumous child[27] had the right to an accounting of her father's intestate estate, drawing on this concept from both Roman civil law and common law. The lord chancellor stated: "Both by the rules of common and civil law that is, the unborn child was, to all intents and purposes of interstate, a child, as much as if born in the father's life-time."
  
  In Doe v. Clarke[28], a second English court followed Wallis' reasoning and understood "children" in the terms of a will to include children who were en ventre sa mere[29]. The Chief Justice of the Court of Appeal said: "I hold that an infant en ventre sa mere, who by the course and order of nature is then living, comes clearly within the description of 'children living at the time of his decease." Previously, many English courts saw the recognition of the unborn child in property law as a construction rule for the child's benefit by directly allocating the rights over the said property even when the child is in the mother's womb excluding the intervention of the 3rd party.[30]
   
• United States Of America:
  In the year 1941, a New York court in In case of re Holshausen Will summed up for a major evolution of the law which was in concern to the property rights of the unborn child, stating that a child i.e., en ventre sa mere is "born" and "alive" for all purposes for his benefit.
  
  Thus this court clearly removed the interest of the 3rd party interstate in the transfer of property to an unborn child. The last portion of the court's declaration, stating that the unborn child's property rights would not be recognised unless they benefit that of the child was clearly stated which is now under dispute to an extent as it has created a lot of legal cases to be filed up. As previously stated, English courts have rejected such an interpretation. It seems, however, that certain American courts still follow such a regulation.[31]
   
• Indiana:
  The Indiana Supreme Court ruled that if a testator left property to his daughter "and her children" and the kid was en ventre sa mere at the time of the testator's death, the unborn child might inherit as a tenant in common with his mother." The unborn child had equal rights and title to the property as his mother."[32]
   
• Rhode Island:
  The unborn child's property rights advanced to the point where, in 1938, the Supreme Court of Rhode Island ruled that a posthumous kid was entitled to partake in the revenue of a trust from the date of her father's death rather than from her later birth. The court ruled that there was "no sound reason" to treat the an unborn child (en ventre sa mere) differently from her siblings.

It seems, then, that the law of property recognises the unborn child's rights from the time of conception for all purposes affecting that child's property rights. The unborn kid may be a real income receiver prior to his birth. as well as a joint renter with his mother. He is recognised as a living person at the time of his father's death and, as such, is entitled to a share of any damages recovered in an action for his father's illegitimate death.[33]

Conclusion And Suggestion:
Conclusion:
The Transfer of Property Act, 1882, transfer of property is defined as the act of transferring property on to at least one live person or themself. Encompass Vivos may also arise when a property is offered as a gift to someone else in a trusting relationship. Section 7 of the Act specifies who is competent to transfer, stating that the individual must be a major and of sound mind. Property is often transferred to a living human, but under section 13, property can also be transferred to an unborn child under the benefit of the unborn-child and other circumstances.

Hindu law deemed any gift or inheritance of property in favour of the unborn void under the Hindu tradition. However, the Property Transfer Act applies to Hindus, allowing transfers in behalf of the unborn provided they are performed in accordance with Section 13. The Privy Council ruled that the deed was invalid because it tried to change the way Hindu Law handles inheritance. In Islamic law, Section 13 of the Transfer of Property Act does not apply to transfers made by Muslims, as a gift requires a person and a beneficiary at the time of giving and acceptance.[34]

However, a life interest gift is valid, allowing property to be granted to someone for the remaining time of their life. In Indian law, an estate for an unborn child must include all property interests, including a previous interest in favour of a live individual. An unborn child may only be awarded an absolute stake, and creating a restricted interest would render the transfer invalid. In English law, a restricted interest may be formed for an unborn child but not after birth. Property cannot be directly transferred to an unborn child, violating Section 13.

However, property transfers can be made for the unborn person's benefit under certain circumstances: no direct transfer, valuation by life interest in favour of a person in existence at the time of the transfer, and only absolute interest may be transferred in behalf of the unborn. The transfer can be done for absolute interest or vested interest, with vested interest passed upon birth and absolute interest after death. However, after birth and absolute interest is transferred, the unborn is not entitled to ownership of the property, violating Section 14's prohibition against perpetuity.

Section 13 of the Transfer of Property Act of 1882 aimed to establish a legal framework for the transfer of property to unborn persons, addressing the complexities of passing property rights to unborn individuals. The act aims to ensure that property can be transmitted in advance of a person's birth, allowing for inheritance planning and preserving property rights for future generations. It also ensures that the recipient of a property transfer must exist legally at the time the transfer takes effect. However, Section 13 has been criticized for its ambiguity, unclear definitions of the term "unborn person," and unclear explanations of the transfer mechanism.

A case involving a gift of property to an unborn daughter led to the court determining that the gift was unlawful under Section 13 due to its limited interest. The act requires a broadening of its scope and amendments to reduce ambiguity, as new reproduction tools and changing family arrangements have made it harder to apply Section 13. Property transferred for the benefit of an unborn child is typically held in trust or as a life interest for someone who is alive at the time of transfer. The property transfer may not proceed as anticipated if the unborn child is not conceived or born alive.

In such circumstances, the property is normally handled in accordance with the terms of the trust or will, or returned to the transferor's estate. Section 21 of the Transfer of Property Act requires the use of contingent interests. A contingent interest is formed in favour of the unborn person, which is conditional on the unborn person being born alive. If the unborn child is not created or does not survive birth, the transfer fails, and the property would return to the transferor's estate or be handled with any further provisions provided in the trust or will.

In England, the term "unborn" has been broadened and interpreted in various cases, including Wallis v. Hodson[35], Doe v. Clarke, and In re Holshausen's Will. The law of property recognizes the unborn child's rights from the time of conception for all purposes affecting their property rights.

Suggestion
To suggest on a Comparative analysis on the rights of unborn children to property reveals substantial differences in legal approaches across various jurisdictions, including England and the United States (specifically New York, Indiana, and Rhode Island), and sheds light on potential confusion in India's Transfer of Property Act, 1882, particularly Section 13. Section 13 clearly states that a transfer of a property can be done to an unborn child in due respect of its benefits and an trust has to be created i.e., to say the property shall be given to an individual who can have the ownership and title of the property until the unborn child is born and is attaining a age of 18 years, pointing out the need for an intermediary before an unborn child inherits the property.

Complex laws and judicial interpretations from the aforementioned nations provide useful insights for improving clarity and.effectiveness.in.Indian.law. In England, the identification of an unborn kid (en ventre sa mere) as "living" for the purposes of inheritance, as shown in judgements such as Wallis v. Hodson, reflects a wider acceptance of unborn children's property rights that do not need a third-party life interest.

The argument is further strengthened by the merging of common and Roman civil law, which allows for a more comprehensive approach to posthumous children's rights to their parents' fortunes and also giving a proper guidelines for the transfer of property for the unborn child as well.

This case law mainly focuses on the aspects of a posthumous children's rights where in India we can see when both the parents are alive they transfer the property in name of the unborn child can be possible which is a lot different than the above aspects of the judgement, yet it can fall under the same ambit where the section 13 can be amended to exclude the interference of 3rd parties intervention and can only creation of absolute interest of property to the unborn and only an interstate can be appointed to just look-after the property and that if in case the person who looks after the property wants to sell the property which given to the unborn child that can be only done in the intervention of a court order and that only if the court believes that either transfer or sale of the property which has been given in the name of the en ventre sa mere is possible only if it's done in benefit to child this reduces a lot of disparities and ambiguities that are there in the section.13.of.the.said.act.

In contrast, the United States provides a mixed scope and approach to the transfer of property to the unborn. Despite considerable debate, a New York court's statement in In re Holshausen Will that an unborn child is regarded "born" and "alive" for all intents is worth noting thus the court states that there is no requirement for third party interest to interstate a property. This is replicated in Indiana and Rhode Island, where unborn children's direct inheritance rights have been recognised, eliminating the need for life interest or trustees as middlemen.

India's present statutory structure, which requires a trustee for property transfers to unborn children, might be simplified for improved efficiency and clarity by accepting similar to that of the overseas norms. Amending Section 13 to enable immediate vesting of property upon the birth of the unborn child, as done in England and the United States, would remove the requirement for an intermediary and streamline the inheritance procedure leads to lesser ambiguities.

Furthermore, precisely defining the status of an unborn child inside the legislation, as inspired by unambiguous legal definitions in England, will help to eliminate uncertainties about their inheritance rights thus improves and gives a more clear and precise definition.which.increases.the.scope.and.ambit.

Adopting a concept that prioritises the unborn child's benefit, similar to the New York approach, might guarantee that property rights are recognised in a way that benefits the unborn child the most than having going through a interstate. Furthermore, adopting clauses that expressly address the rights of unborn child offspring, based on Rhode Island and Indiana precedents, might help to define and protect their entitlements without bias.

The major aspects is that in India there is no such practice of transfer of property in name of an unborn and it has been introduced to Indian subcontinent by the English law and which being implemented was also not done in a proper procedural way which has led to a lot of Dis clarities and ambiguity that is the main reason there shall be certain changes in the Transfer of property act is to, properly define the term "Unborn" and to also include the aspects of test tube baby and children born via the treatment of IVF are also to be included in the scope and ambit of the section 13 to increase the scope and extent of the said act and reduce more of ambiguities to the future and many other minor changes have to be made under the section 13 of the transfer of property act to improve its efficiency in matters related to transfer of property to the unborn.

Thus via Integrating judicial precedents and interpretations within the Act would offer courts, trustees, and property transaction parties with better direction, allowing the law to be applied more accurately and fairly. In basic terms, improving Section 13 of the Transfer of Property Act with revisions based on the comparative study might greatly minimise issues surrounding the transfer of property to unborn children. This will bring India's legal structure in line with current understandings of property rights and inheritance, resulting in a logical, fair, and efficient system for future generations.

Bibliography:

1. Sarathi. Vepa P. Law of Transfer Of Property. Eastern Book Company. Reprinted 2010. Lucknow. Page no 54
2. Alexander, G. S. (2013). Unborn Communities. Cornell Legal Studies Research Paper, (13-83)
3. Nemani, N. S. (2021). Transfer of Property to Unborn Child. Issue 5 Int'l JL Mgmt. & Human., 4, 2081
4. Srinidhi, S., & Panicker, M. B. (2022). A Critical Analysis on the Property Rights of Unborn Child. Baltic Journal of Law & Politics, 15(4), 820-829
5. Gupta, A. (2011). Property Laws for the Non-Existent: A Study on Transfer for the Benefit of an Unborn Person. Available at SSRN 2115177
6. Transfer of Property to a Child in a Mother's Womb by Simran Kaur Bhatia Published on October 1, 2021By Editor_4. https://www.scconline.com/blog/post/2021/10/01/transfer-of-property/
7. Analysis on transfer of property to an unborn child; Mar 8, 2022; Akshita Tripathi & Amit Pandey; https://articles.manupatra.com/article-details/Analysis-on-transfer-of-property-to-an-unborn-child
8. The transfer of property act by R.K Sinha(21st ed. Pg:101)
9. Transfer of property act; Dr. R.K. Sinha; central law agency; EBC.
10. GIRJESH DUTT v. DATA DIN; AIR 1934 OUDH 35 ; SCC ONLINE.COM
11. William J. Maledon, Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame L. Rev. 349 (1971).
12. Diwan, Paras. "Modern Hindu Law". Allahabad Law Agency
13. Mulla, Dinshah Fardunji. "The Transfer of Property Act". 12th Edition. LexisNexis, 2020.
14. Bhat, P. Ishwar. "concept of possession in property law" Cambridge Scholars Publishing, 2017.
15. Gill, S., & Gill, S. (2023, December 21). What Is Section 13 of the transfer of property act (TPA)? Its Advantages & Other Important Elements. Retrieved from https://nomadiclawyer.com/section-13-of-the-transfer-of-property-act-tpa/.
16. (The Transfer of Property Act, 1882 | Law Commission of India Reports | Law Library | AdvocateKhoj, n.d.)

End-Notes:

1. 5. "Transfer of Property" Defined.�In the Following Sections "Transfer of Property" Means an Act by Which a Living Person Conveys Property, in Present or in Future, to One or More Other Living Persons, or to Himself, or to Himself and One or More Other Living Persons; and "to Transfer Property" Is to Perform Such Act. In This Section "Living Person" Includes a Company or Association or Body of Individuals, Whether Incorporated or Not, but Nothing Herein Contained Shall Affect Any Law for the Time Being in Force Relating to Transfer of Property to or by Companies, Associations or Bodies of Individuals.; Professional Bare Act; Transfer of Property Act; 2024.
2. 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. Professional Bare Act; Transfer of Property Act; 2024.
3. Sarathi. Vepa P. Law of Transfer of Property. Eastern Book Company. Reprinted 2010. Lucknow. Page No. 54
4. Supra
5. Nemani, N. S. (2021). Transfer of Property to Unborn Child. Issue 5 Int'l JL Mgmt. & Human., 4, 208.
6. Supra
7. Supra
8. (1872) 9 Eng LR 337
9. Gupta, Aishvarya, Property Laws for the Non-Existent: A Study on Transfer for the Benefit of an Unborn Person (August 15, 2011). Available at SSRN: https://ssrn.com/abstract=2115177 or http://dx.doi.org/10.2139/ssrn.2115177
10. IBID
11. The Transfer of Property Act by R.K Sinha(21st Ed. Pg:101)
12. Analysis on Transfer of Property to an Unborn Child; Mar 8, 2022; Akshita Tripathi & Amit Pandey; https://articles.manupatra.com/article-details/Analysis-on-transfer-of-property-to-an-unborn-child.
13. Supra
14. Transfer of Property Act; Dr. R.K. Sinha; Central Law Agency; EBC.
15. 19. Vested Interest.�Where, on a Transfer of Property, an Interest Therein Is Created in Favour of a Person Without Specifying the Time When It Is to Take Effect, or in Terms Specifying That It Is to Take Effect Forthwith or on the Happening of an Event Which Must Happen, Such Interest Is Vested, Unless a Contrary Intention Appears from the Terms of the Transfer.
16. 14. Rule Against Perpetuity.�No Transfer of Property Can Operate to Create an Interest Which Is to Take Effect After the Lifetime of One or More Persons Living at the Date of Such Transfer, and the Minority of Some Person Who Shall Be in Existence at the Expiration of That Period, and to Whom, if He Attains Full Age, the Interest Created Is to Belong. Professional Bare Act; Transfer of Property Act; 2024.
17. Dr Poonam Pradhan Saxena, Property Law.
18. Gill, S., & Gill, S. (2023, December 21). What Is Section 13 of the Transfer of Property Act (TPA)? Its Advantages & Other Important Elements. Retrieved from https://nomadiclawyer.com/section-13-of-the-transfer-of-property-act-tpa/
19. "The Transfer of Property Act, 1882 | Law Commission of India Reports | Law Library | AdvocateKhoj," n.d.
20. Srinidhi, S., & Panicker, M. B. (2022). A Critical Analysis on the Property Rights of Unborn Child. Baltic Journal of Law & Politics, 15(4), 820-829
21. GIRJESH DUTT v. DATA DIN; AIR 1934 OUDH 35 ; SCC ONLINE.COM
22. Supra
23. 21. Contingent Interest.�Where, on a Transfer of Property, an Interest Therein Is Created in Favour of a Person to Take Effect Only on the Happening of a Specified Uncertain Event, or if a Specified Uncertain Event Shall Not Happen, Such Person Thereby Acquires a Contingent Interest in the Property. Such Interest Becomes a Vested Interest, in the Former Case, on the Happening of the Event, in the Latter, When the Happening of the Event Becomes Impossible.
24. Transfer of Property to a Child in a Mother's Womb by Simran Kaur Bhatia Published on October 1, 2021By Editor_4. https://www.scconline.com/blog/post/2021/10/01/transfer-of-property/
25. 26 Eng. Rep. at 473.
26. The Child Who Is Born After the Death of Its Father.
27. 126 Eng. Rep. (O.P. 1795)
28. Supra
29. William J. Maledon, Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame L. Rev. 349 (1971).
30. Ibid
31. Biggs v. McCarty, 86 Ind. 352 (1882).
32. SUPRA
33. Supra
34. Supra

Written By: Vivek K Singri, BBA LLB, 6th Semester - PES University