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
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:
- 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.
- 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.
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
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
- The unborn person must be in existence at the expiration of the interest of the
- 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.
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.
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
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:
- The child was conceived at the time of death of the property owner, and
- 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.
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.
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
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.
Bahadur Singh v Thakurain Bakhtraj Kuer
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
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
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
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
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
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
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
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.
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:
- The minority period in India is 18 years, whereas it is 21 under English
- The period of gestation should be an actual period under Indian Law,
whereas it is gross period under English Law.
- Under Indian law property should be given absolutely to an unborn
person, whereas under English law property need not be absolutely given.
- 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.
- 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.
- 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.
- 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.
- 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.
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 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.
- refers to a law that grants or protects the right of a foetus to inherit
- a permanent dedication of movable or immovable properties for religious,
pious or charitable purposes as recognized by Muslim Law.
- AIR 1953 SC 7
- (1934) 9 Luck 329: AIR 1935 Oudh 35
- AIR 1944 PC 67
- AIR 1945 Bom 395
- 49 Bom L.R.882
- a child in the mother's womb