Transfer for the benefit of the Unborn Person has been stated in Section 13 of Transfer of Property Act. The subject of legal person or personality has been highly debated over the years. Traditionally, per the Hohfeldian thesis, an entity is deemed to have legal/juristic personality if it is amenable to the right-duty correlation.
In case of the unborn, generally not taken to be a legal person, the jurisprudential controversy largely arises out of this denial, rather than the conferral, of personality
Although the Indian laws recognize the existence of an unborn as a legal person, rights are not granted until the birth of the child. Further, while a child in a mother’s womb is considered as a person for many purposes, the extent of the unborn child’s personal or proprietary rights has not been categorically determined.
Importance and relevance of property in today‘s materialistic world are undeniable, and it is only natural that these rights are protected and not exploited, thus for this purpose, the unborn is regarded by legal fiction as already born for creation of interest in a property.
Renowned scholars have also opined that ‘the State should not discriminate between persons who have taken birth and persons who are still in the womb of a mother’. Therefore, the State is under an obligation under Article 21 not only to protect the life of an unborn child from arbitrary and unjust destruction but also not to deny it equal protection under Article 14.[i]
Contingency of Birth
Since times immemorial, civil and common law have recognised the right of an unborn to inherit property. John Salmond says, There is nothing in law to prevent a man from owning property before he is born. His ownership is contingent, for he may never be born at all; but it is nonetheless real and present ownership. A man may settle property on his wife and the children to be born of her. Or he may die intestate and his unborn child will inherit his estate.[ii]
Therefore although a right is created in favour of the foetus, giving the impression of legal personality being almost acknowledged in favour of the same, its accrual is made contingent on live birth. If the foetus does not take its place amongst the living, the limited personality attributed to it disappears ab initio i.e., if the child perishes in the womb, the inheritance will revert to someone else.
Provision under the Transfer of Property Act, 1882
Section 5 of the Transfer of Property Act, 1882 defines “transfer of property as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more than one living persons; and “to transfer property” is to perform such act.
Thus, a transfer cannot be made directly to an unborn person, for the definition of transfer in Sec. 5 is limited to living persons. However, under section 13 of Transfer of Property Act it is said that ‘Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of 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 transfer in the property.’
Therefore such transfer can only be made by the machinery of trusts. Possibly it is intended to express this distinction by the words ‘for the benefit of’, the trustees being the transferees who hold the property for the benefit of the unborn person.
Essentials elements of a valid transfer for the benefit of an unborn person under section 13
Sec. 13 provides for a specific mechanism for transferring property validity for the benefit of unborn persons. The procedure is as follows :
i. The person intending to transfer the property for the benefit of an unborn person should first create a life estate in favour of a living person and after it, an absolute estate in favour of the unborn person.
ii. Till the person, in whose favour a life interest is created is alive, he would hold the possession of the property, enjoy its usufruct i.e. enjoy the property.
iii. During his lifetime if the person (who on the day of creation of the life estate was unborn) is born, the title of the property would immediately vest in him, [iii] but he will get the possession of the property only on the death of the life holder.
Provisions under The Indian Succession Act, 1925
According to Section 113 of 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 void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
Section 13 of the Transfer of Property Act is almost identical with Section 113 of the Indian Succession Act, 1925. The difference between the two sections is that the former relates to the transfer of inter Vivos, while the later deals with bequest (legacy/inheritance) which take effect only on the death of the testator.
Section 113 of the Indian Succession Act can come into operation only when the bequest to an unborn person is postponed by the intervention of life or some other interest in the thing bequeathed.
In Sopher v Administrator-General of Bengal[iv], the Privy Council considered the effect of Section 113 of the Indian Succession Act in a will which provided for an ultimate bequest in favor of persons not born at the time of the testator’s death.
[ii] John Salmond, Jurisprudence (6th edn, London: Sweet and Maxwell 1920) 277
[iii] The Transfer of Property Act, 1882, Sec. 20.
[iv] Sopher v. Administrator-General of Bengal71 IA 93 : 216 IC 53
Student, Symbiosis Law School Pune
Rachita is Student at Symbiosis Law School, Pune. She is originally from Chennai and has completed secondary and higher secondary education at Indian High School, Dubai. She is an aspiring lawyer with an avid interest in Intellectual Property Law. For any clarifications, suggestions and feedback kindly find her at firstname.lastname@example.org