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Temporary injunction (Order XXXIX)

There is nothing in the law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim nasciturus pro jam nato habetur[1]
Under Sec 5 of The Transfer of Property Act, 1882 deals only with the transfers of property between living persons.

Sec 13 provides that the property cannot be transferred directly to an unborn person but it can be transferred for the benefit of an unborn person and this may be effected through the medium of trusts. An unborn person means a person not in existence even in the mother's womb. A child in the mother's womb is considered to be a competent transferee.

Therefore, the property can be transferred to a child in mother's womb because the child is existing at that time but not to an unborn person who is not even existing in mother's womb. Every Transfer of Property involves transfer of interest. For Transfer of Property for the benefit of unborn person two conditions are required to be fulfilled:
  1. Prior life interest must be created in favour of person in existence at the date of transfer: Where an interest is created in favour of an unborn person, the creation of such interest must be preceded by a prior interest and that the word ‘subject to a prior interest means that the estate must rest in some person until the unborn person comes into existence.

  2. Absolute interest must be transferred in favour of an unborn person: The transferor is nor permitted to transfer any but an absolute interest i.e, his whole and entire interest in the property in favour of an unborn person, when the transfer in favour of him is to take effect after the determination of the prior interest created by the same transfer.
Eg: If A wants to give B a house and then to C who is unborn at the time of the gift. A must give C the whole of the remaining interest. It cannot be set out in the transfer that C shall have only a power of disposing and the possession will remain with the heirs of B or rents, and profits shall be given to somebody else.

Objective
The objective of this research paper was to determine how property can be transferred to unborn person under law of Transfer of Property to unborn person. This paper also tries to find out the ultimate logics behind this transfer.

English law relating to unborn person:

The English law relating to transfer in favour of unborn persons is now governed by the rule against perpetuities as laid down in Sec 163 of the Law of Property Act,1925. Before this Act, the property could be transferred in favour of an unborn person subject to rule against double possibilities .

Under this rule, property could be transferred for life in favour of the first unborn person but to next unborn absolutely . If life estates were granted to two successive unborn persons, the transfer in favour of only second unborn was void because it violated the rule against double possibilities . Thus, under this rule A could transfer properties to unborn person 1 for life and then to unborn person 2 absolutely. Now the transfers in favour of unborn person 1 and unborn person 2 are valid only if there is no violation of the rule against perpetuity as laid down in Sec 163 of the Act of 1925.

Essential conditions for the transfer to unborn person

The essential condition for the transfer in favour of an unborn person as per the Property Act 1882:

  • There must be a transfer of property
  • The transfer should be to create an interest in favour of an unborn person
  • Interest created must take effect after the lifetime of one or more persons living at the date of such a transfer and during the minority of the unborn person.
  • The unborn person must be in existence at the expiration of the interest of the living persons.
  • The vesting of the interest in favour of the ultimate beneficiary may be postponed only up to the lives or life of living persons plus the minority of the ultimate beneficiary but not beyond that.

Legal consequences

Transfer in favour of an unborn person has the following legal consequences:

The intermediary person living at the date of transfer is to be given only life interest. He has to preserve the property like a trustee during his life time on behalf of the unborn. If absolute interest is given to this living person, he may be entitled to dispose it of to anyone. If he retains it, the property after his death shall go to his legal heir and not to unborn person for whose ultimate benefit the disposition was made.

The unborn must come into existence before the death of the person holding property for life. If the unborn person come into existence say, after one month after the death of the last living person (after the termination of the preceding interest) the property is to revert back to the transferor or his heirs. This is obvious after termination of the life interest, it cannot remain in abeyance and cannot wait even for a moment for the next person to come into existence.

Example:
A transfers property of which he is the owner to B 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. Here, the successive life interests in favour of B and his intended wife is a valid transfer. But, the eldest son of the intended marriage who is unborn person has been given the property only for life and not an absolute interest. Therefore, the transfer in his favour is void and does not take effect.

Other relevant provisions

Hindu Succession Act

Section 20 of the Hindu Succession Act, 1956, deals with the rights of an unborn child that is in the womb of the mother. The property rights of an unborn child are governed by the fact that if the child who was in the womb at the time of the death of the person who desires to transfer the property and who is subsequently born alive shall have the same right to inherit as if he or she had been born before the death of the property owner, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. According to Section 20, an unborn child who has come into existence will inherit only if:
  1. The child was conceived at the time of death of the property owner, and
  2. The child is born alive
The child will inherit in the same manner as if he were born before the death of the property owner if the above conditions are met. Any child, male or female, who is in mother's womb at the time of the death of the property owner is considered to come into existence in the eyes of law.

Indian Succession Act

As per Section 113 of the Indian Succession Act, 1925 Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be valid, unless it comprises the whole of the remaining interest of the thing bequeathed . Transfer of Property worth more than Rs 100 without a registered document is not proper, such transfer by unregistered document cannot have the effect of conferring any title on the purchaser. (footnote: Devendra Singh v State of Rajasthan, AIR 2002 Raj 66)

The main difference between the provisions under Indian Succession Act and the provisions under Transfer of Property is that the former deals with bequests which take effect only on the death of the testator while the later deals with transfer of property inter vivos.

Hindu Law

Under pure Hindu Law, a gift or bequest in favour of an unborn person was void. But now, since Transfer of Property Act is applicable to Hindus, the transfer in favour of an unborn person is valid if it made subject to the provisions of Sec 13 of the Act.

Muslim Law

Since Section 2 of the Transfer of Property Act provides that Nothing shall be deemed to effect any rule of Mohammedan Law , Section 13 is not applicable to transfers made by Muslims. However, under Muslim Law too a gift in favour of a person not in existence has been held to be void except in case of wakf[2]

Interest must vest in unborn person

Section 20 declares that where interest is validly created for the benefit of an unborn person, it becomes vested in the unborn person upon his birth, unless a contrary intention appears from the terms of the transfer. A contrary intention appears from the terms of the transfer states that the unborn person is to take the property on his attaining a particular age. In such cases, Section 14 lays down a limit of the time beyond which the vesting cannot be postponed. The vesting of interest created for the benefit of an unborn person may be postponed till he attains majority.

Case Studies
Bahadur Singh v Thakurain Bakhtraj Kuer[3]
Sec 13 of Transfer of Property Act controls Section 113 of Indian Succession Act and both of them are read together, ad opined by the Apex Court.
It was further observed by the court that:
It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some are not, it does not fail in its entirety, it is valid with regard to the persons who are in existence at the time of the testator's death and is invalid as to the rest

Girijesh Dutt v Datadin[4]

In this case A made a gift of her property to B for life, who was her nephew's daughter, and then absolutely to B's male descendants if she should any. But in the absence of any male child of B, B's daughter without the power of alienation, and if B has no descendants male or female then to her A's nephew. B dies issueless.

The court in this case held that gift of life to B was valid as B was living at the date of the transfer but the gift in favour of B's daughter was void under Section 13 of Transfer of property Act, 1882 because it was a gift of limited interest( gift without the power of alienation), she had not been given absolute interest. Since the transfer was void the subsequent transfer to A's nephew also failed.

Sopher v Administration General of Bengal[5]

In this case a testator directed that his property will be divided after the death of his wife into as many parts as there shall be children living at his death or who shall have predeceased leaving issue living at his death. The income of each share was to be paid to each child for life and then to grandchildren until they attain the age of 18 years and they will be absolutely entitled to the property. The bequest to the grandchildren was held to be valid by the privy council.

The Privy Council observed that:
If under a bequest in the circumstances mentioned in Sec 113 there was a possibility of the interest given to the beneficiary being defeated either by a contingency or by a clause of a defeasance; the beneficiary under the later bequest did not receive the interest bequeathed in the same unfettered form as that in which the testator held it and that the bequest to him did not therefore compromise the whole of the remaining interest of the testator in the thing bequeathed.

Arideshir v DudaBhoy[6]

In this case, D was a settler who made a settlement. According to the terms of the settlement, According to the terms of the settlement, D was to get during life, one third each was to go to his sons A and R. After D's death, the trust property was to be divided into two equal parts. The net income of each property was to be given to A and R for life and after their death to the son's of each absolutely.

If A and R were each to pre-decease D without male issue, the trust property went to the settler absolutely. The settlor then took power to revoke or vary the settlement in whole or in part of his own benefit. It was held that R's son who was not born either at the date of settlement or his death did not take any vested interest and the gift to him was invalid. A's son who was alive at these dates did not also take a vested interest.

Framroze Dadabhoy Madon v Tehmina[7]

Tehmina settled a sum of Rs 47,000, representing the proceeds of sale of diverse investments, made on her behalf by father, Dadabhoy Sarobji Madon, upon trusts in favour of herself, for life, and after her decease and subject to a power of appointment, exercisable by will or codicil only, amongst her issue during her lifetime, in trust for all children who being sons, shall attain the age of 18 years or being daughters shall attain the age or marry under that age in equal shares.

In default of issue there is a general power of appointment with regard to part only of the trust funds to be exercised by will or codicil, and, subject to the foregoing trusts and powers , the trustee are to hold the trust funds in trust for the Sorabji Madon, his heirs, executors and assigns.

These arrangements, in favour of the issue of Bai Tehmina, have been held to be void by reason of Sec 13 of Transfer of Property Act, 1882, as have also the subsequent trusts, with the result that a declaration has been made that there is a resulting trust of the settled funds in favour of the settlor.

Difference Between Indian and English Law:

  1. The minority period in India is 18 years, whereas it is 21 under English law.
  2. The period of gestation should be an actual period under Indian Law, whereas it is gross period under English Law.
  3. Under Indian law property should be given absolutely to an unborn person, whereas under English law property need not be absolutely given.
  4. The unborn person must come into existence before the death of the last life estate as per Indian law, whereas under English Law, he must come into existence within 21 years of the last life estate holder.

ANALYSIS
  1. The Transfer of Property Act does not permit transfer of property directly in favour of an unborn person. Thus, in order to transfer a property for the benefit of a person unborn on the date of transfer, it is imperative that the property must first be transferred in favour of some other person living on the date of transfer. In other words, the property must vest in some person between the date of transfer and the coming into existence of the unborn person since property cannot be transferred directly in favour of an unborn person. The interest of the unborn person must in every case, be preceded by a prior interest.
  2. The interest in favour of the unborn person shall constitute the entire remaining interest. The underlying principle in section 13 is that a person disposing of property to another shall not fetter the free disposition of that property in the hands of more than one generation.
  3. Section 13 does not prohibit successive interests (limited by time or otherwise) being created in favour of several persons living at the time of the transfer. What is prohibited under Section 13 is the grant of interest, limited by time or otherwise, to an unborn person.
  4. Sec 14 further provides that the unborn person, in whose favour the interest is created, must have come into existence on or before the expiry of the life or lives of the persons in whose favor the prior interest is created as required under Sec 13.

CONCLUSION
Transfer of property to an unborn child has always raised questions. So to overcome the questions, the section 13 of transfer of property act was given as an answer of the questions which states that the transfer of property for benefit of an unborn child or the person who is not born. A child in mother's womb is regarded by a legal fiction as already born, in accordance with the maxim Nasciturus Pro Iam Nato Habetur. For the unborn person, there must be a transfer of absolute interest. Section 13 provides that the property cannot be transferred directly to an unborn person but it can be transferred for the benefit of an unborn person by transferring first in favour of prior interest.

For transfer of property for the benefit of unborn person two conditions are required to be fulfilled: Prior life interest must be created but not for an indefinite period in favor of a person in existence at the date of transfer, and Absolute interest must be transferred in favor of the unborn person. It also provides that the unborn person must come into existence on or before the determination of the last life estate.

There is a fiction that a child en ventre sa mere[8] is a person in being for the purpose of: acquisition of property by the child itself, and being a life chosen to form part of the period in the rule against perpetuities. A child en ventre sa mere is considered to be a ‘person' both under the law of crimes and law of torts. Under Section 315 of the Indian Penal Code, the infliction of pre-natal injury on a child, which is capable of being born alive and which prevents it from being so could amount to an offence of child destruction. Section 416 of Criminal Procedure Code provides that:
if a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may if it thinks fit, commute the sentence to imprisonment for life.

It has been held that in a Canadian case that a child could succeed in tort after it was born on account of a deformity which was held to have been caused by a negligent pre-natal injury to mother. In India as well in England, under the law of tort, an infant cannot maintain an action for injuries sustained while on ventre sa mere. However, in England damages can be recovered under Fatal Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be concluded that an unborn person is endowed with legal personality for certain purposes.

End-Notes:
  1. refers to a law that grants or protects the right of a foetus to inherit property.
  2. a permanent dedication of movable or immovable properties for religious, pious or charitable purposes as recognized by Muslim Law.
  3. AIR 1953 SC 7
  4. (1934) 9 Luck 329: AIR 1935 Oudh 35
  5. AIR 1944 PC 67
  6. AIR 1945 Bom 395
  7. 49 Bom L.R.882
  8. a child in the mother's womb

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