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iNTRODUCTION

UNBORN PERSON: He is one who is not in existence as of now or who will come into
existence in future at any time or who is in the womb of the mother. He is basically, a person not
yet born.
RIGHTS OF UNBORN:

According to the Vienna Convention on the Law of Treaties, the rule regarding the
protection of life before birth could be considered as 'jus cogens' (final norm of general
international law).

According to Fleming and Hains: "The right to life of all human beings has the nature of
an intransgressible norm already contained in the Universal Declaration of Human Rights
1948, the International Covenant on Civil and Political Rights 1966 and the Declaration
of the Rights of the Child 1959. Under international law, the unborn child is protected.

Explicit protection is extended to the unborn child in the International Covenant on Civil
and Political Rights 1966, and in the Convention on the Prevention and Punishment of
the Crime of Genocide 1948.

The text (of the Universal Declaration of Human Rights 1948) clearly states that
everyone has the right to life, and that what is meant by everyone is 'every member of the
human family' - that is all human beings. Here is the nub of the matter."

TRANSFER OF PROPERTY TO UNBORN


A child in its mothers womb is for many purposes regarded by a legal fiction as already born, in
accordance with the maxim nasciturus pro jam nato habetur; which means that the legal capacity
of the natus is sometimes determined by referring back to a time when he was still nasciturus

(unborn). Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person
in being a life chosen to form part of the period in the rule against perpetuities.

TRANSFER OF PROPERTY ACT SECTION 13


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. Sec 13 TPA
Prior Interest: Prior interest is not affected by reason of the subsequent interest being rendered
void by this rule. It is neither enlarged or extinguished (Mohamed Shah v. Official Trustee of
Bengal, 190936 CAL 431).
Limited Interest: Limited interest cannot be created for the benefit of an unborn person even
though it is subject to a prior interest in favor of a living person.
Illustration
A transfers property of which he is the owner to B in trust for A 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. The interest so created for the benefit of
the eldest son does not take effect, because it does not extend to the whole of A's remaining
interest in the property. ( T. Subramania Nadar v. T. varadharajan, AIR 2003 mad 364 at p.
368)

PRE-REQUISITES FOR A VALID TRANSFER OF PROPERTY TO AN


UNBORN PERSON

i) No transfer: The transfer of property can be done by way of trusts but not directly. In the
absence of trust the property must be created in favor of a living person and then to the minor.
ii) Prior Interest: Life interest can be enjoyed by person(s) until the unborn comes into
existence.
iii) Before the death of last life estate holder: The unborn person must come into existence
before the death of the last life estate holder. It is not necessary that he should be born, even if he
is in the mothers womb that is enough. A child en ventre sa mere is equal to child in essence
meaning a child in the mothers womb is equal to a child in existence.
iv) Immediate transfer of rights: All the rights should vest in the unborn child as soon as he
comes into existence. He will the absolute owner of the property vested in him.
The pertinent fact here is that the transfer can be made to an unborn person but not to the issue of
an unborn person. Where the gift made in favor of the unborn grand children was not in respect
of the whole interest in the property, the gift was held to be a valid document
In the case of Isaac Nissim Silas v. Official trustee of Bengal, A.I.R 1957, Cal 118, the trust
was a family trust created for the benefit of settlor and his wife, his two sons and their children to
be born. At the date of the trust the settlors family consisted of his wife and his three children.
The trust deed provided that the trustee after making provisions for meeting the necessary
expenses, the property will remain in lifetime of settlor, thereafter to his wife, thereafter to his
three sons in equal shares. Remainder in favor of the sons children that may be born and remain
alive at a certain period subject to certain restrictions. The legality of the gift made in favor of the
grandsons was questioned. It was held that the trust in favor of the grand-children in deed of trust
was void.

ORIGINS
The origin of rule against perpetuity stems from the days of feudal England as far back as in
1682 from the case of Duke of Norfolk's, wherein, Henry (the 22nd Earl of Arundel), tried to
create a shifting executory limitation in a way that one of his titles would pass to his eldest son
(who was mentally deficient) and thereafter to his second son, and another title would pass to his
second son and thereafter, to his fourth son. The estate plan also included provisions for shifting

the titles many generations later, if certain conditions were to occur. It was held by the House of
Lords that such a shifting condition could not exist indefinitely and that the tying up of property
too long beyond the lives of people living at the time was wrong. The concept of trying to control
the use and disposition of property beyond the grave was often referred to as control by the "dead
hand". The rule against perpetuity, in England, was later codified in the form of the Perpetuities
and Accumulations Act, 1964.

POSITION IN INDIA
Before the Transfer of Property Act, 1882, there was practically no law as to real property or, as
to personal property, in India. A few points had been covered by regulations, and the Acts, which
were repealed either wholly or in part by Section 2 of the Transfer of Property Act but for the rest
of the law, the Courts, in the absence of any statutory provision, adopted the English law as the
rule of justice equity and good conscience. This was not satisfactory, for the rules of English law
were not always applicable to social conditions in India, and the case law became confused and
conflicting. To remedy this state of affairs, a Commission was appointed in England to prepare a
Code of substantive law for India, and the Transfer of Property Act, though drafted in 1870, was
the last of these drafts to become law.
By the private laws of Hindus and Mahomedans dispositions of property in favor of unborn
persons could not be made, but no such embargo on anticipatory benevolence attached to the
private laws of other communities, including Christians, Parsis and Jews, to whom English law
was applied, to the extent that estates tail could be created as seen in the Modes of Conveying
Land Act, 1854. The Indian Succession Act, 1865, was the first Act, which curtailed the right of
the other communities to dispose of property by will to unborn persons, by modifying the
English law, but so far as the transfer of property inter vivos was concerned, English law
continued to be applied to the other communities, until the passing of the Transfer of Property
Act in 1882, and by statutes of 1914, 1916 and 1921. Hindu private law, which prohibited any
disposition in favor of an unborn person, was amended so as to bring into operation the two
groups of sections concerning dispositions in favor of unborn persons contained respectively in
the Indian Succession Act, 1865, and the Transfer of Property Act, 1882.

RULE AGAINST PERPETUITY


Section 14 of TPA provides that:
"No transfer of property can operate to create an interest which is to take effect after the life
time 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."
ANALYSIS
The TPA does not permit transfer of property directly in favor of an unborn person. Thus,
in order to transfer a property for the benefit of a person unborn on the date of the
transfer, it is imperative that the property must first be transferred in favor of some other
person living on the date of transfer. In other words, the property must vest in some
person between the date of the transfer and the coming into existence of the unborn
person since property cannot be transferred directly in favor of an unborn person. In other
words, the interest of the unborn person must, in every case, be preceded by a prior
interest.
Further, where an interest is created in favor of an unborn person on a transfer of
property, such interest in favor of the unborn person shall take effect only if it extends to
the whole of the remaining interest of the transferor in the property, thereby making it
impossible to confer an estate for life on an unborn person. In other words, the interest in
favor 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 favor 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.
Further, Section 14 of TPA provides that where an interest is created for the benefit of an
unborn person (in accordance with the provisions of section 13), such interest shall not
take effect if the interest is to vest in such unborn person after the life time of one or
more persons living on the date of the transfer (i.e. the person in whose favor the prior
interest is created as required under section 13) and the minority of such unborn person.
In other words, the interest created for the benefit of an unborn person shall take effect
only if the interest is to vest in such unborn person before he attains the age of eighteen
years.
Section 14 further provides that the unborn person, in whose favor the interest is created,
must have come into existence on or before the expiry of the life or lives of the person(s)
in whose favor the prior interest is created as required under section 13.
EXTENT OF PERPETUITY PERIOD
Position in India Life or any number of lives in being + period of gestation + minority period
of the unborn beneficiary.
English Law Life or lives in being +period of gestation +minority period.
OTHER RELEVANT PROVISIONS

Sections 113 and 114 of Indian Succession Act, 1925: Sections 113 and 114 of the ISA
are almost identical to sections 13 and 14, respectively, of TPA. The main difference
between the provisions under the ISA and the provisions under TPA is that the former
deals with bequests which take effect only on the death of the testator while the latter
relate to transfer of property inter vivos. Section 13 of TPA controls Section 113 of ISA
and both of them are to be read together, as opined by the Apex Court in Raj Bajrang
Bahadur Singh vs. Thakurain Bakhtraj Kuer (AIR 1953 Supreme Court 7). It was
further observed by the Court that:

"It is quite true that no interest could be created in favor 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."

EXPLANATION

The effect of these Rules is that a transfer/ gift can be made to an unborn person subject
to the following conditions: (i) that the transfer/ gift shall be of the whole of the
remaining interest of the transferor/ testator in the thing transferred/ bequeathed and not
of a limited interest; and (ii) that the vesting is not postponed beyond the life in being and
the minority of the unborn person.

In simple terms, while section 13 of TPA lays down the mechanism for transfer of
property for the benefit of unborn person and "what property" is required to be ultimately
transferred in favor of an unborn person in order to validate such transfer, section 14 of
TPA provides the "maximum period as to when" such property can be vested upon such
unborn person.

Section 14 of TPA supplements section 13 of TPA and thus, it is pertinent to note that
when an interest in any property is intended to be transferred in favor of an unborn
person, sections 13 and 14 of TPA are required to be read together and the provisions
contained thereunder are required to be duly complied with, in order to give effect to the
intended transfer in favor of such unborn person.

DIFFERENCE BETWEEN INDIAN AND ENGLISH LAW


1) The minority period in India is 18 years whereas it is 21 years under English law.
2) The period of gestation should be an actual period under Indian Law but it is a gross period
under English law.

3) Under Indian law, property should be given absolutely to the unborn person whereas in
English law, need not be absolutely given.
4) The unborn person must come into existence before the death of the last life estate holder as
per Indian law whereas he must come into existence within 21 years of the death of the last life
estate holder in case of English law.

EXCEPTIONS
1) Transfer for public benefit: Where property is transferred for the benefit of the people in
general, then it is not void under this rule. e.g. for the advancement of knowledge, religion,
health, commerce or anything beneficial to mankind.
2) Covenants of Redemption: This rule does not offend the covenants of redemption in
mortgage.
3) Personal Agreements: Agreements that do not create any interest in the property are not
affected by this rule. This rule applies only to transfers where there is transfer of interest.
4) Pre-emption: In this there is an option of purchasing a land and theres no question of any
kind of interest in the property, so this rule does not apply.
5) Perpetual Lease: It is not applicable to the contracts of perpetual renewal of leases.
This rule is not applicable to mortgages because there is no creation of future interest.

CASE LAWS

GIRJISH DUTT AND OTHERS V. DATA DIN AND OTHERS

The plaintiffs in the suit were Data Din, Sitla Din, Sheo Mangal and Bindeshari Prasad. They
brought the suit for possession of certain plots in the village of Purabayum in the district of
Partabgarh. The defendants were Girjish Dutt, Rajendra.
FactsOne Mt. Sugga was the absolute owner of the property in suit. On 15th January 1919, she
executed a deed of gift transferring the property in the first place to Mt. Ram Kali, the daughter
of Data Din, who was a son of her real brother. Mt. Ram Kali remained in possession during her
life. On her death a dispute arose between Data Din, plaintiff 1, the father, and Girjish Dutt,
defendant 1, the husband of Mt. Ram Kali. Data Din transferred some of his interest to the three
other plaintiffs, who joined him in instituting the suit. Girjish Dutt also transferred half of the
property to his brother Rajendra Dutt, defendant 2. The plaintiffs' case was that the gift in favor
of Mt. Ram Kali was of a life interest only, and that under the terms of the gift, the property
passed on her death to her father Data Din. The defendants on the other hand contended that Mt.
Ram Kali was an absolute owner of the property transferred to her under the gift, and therefore
the property on her death devolved on her husband, defendant 1. They also contended in the
alternative that if the gift in favor of Mt. Ram Kali was not absolute, even then the gift over in
favor of Data Din was void by reason of the provisions of Ss. 13 and 16, TPA.
The contention urged on behalf of the defendants was that the gift of a life interest to the unborn
daughters of Mt. Ram Kali was void under the provisions of S. 13, T. P. Act, and that the gift
over to the first plaintiff was consequently void under S. 16 of the same Act, because he was to
take after or on the failure of the daughters.
The learned Subordinate Judge held that the gift conveyed to Mt. Ram Kali only a life interest,
and that the gift over to plaintiff 1 was not void because it was not dependent on the gift to the
daughters, but was an alternative and independent gift.
Girjish Dutt and Rajendra instituted the appeal in the High court.
The main questions which have been raised in arguments were:
(1) Whether the gift to Mt. Ram Kali was an absolute gift or not,

(2) Whether the plaintiffs' case falls under the provisions of Ss. 13 and 16, TPA.
The high court was of the opinion that the conclusion to be drawn from the deed as a whole must
inevitably be that the gift to Mt. Ram Kali was not an absolute gift, but a gift only of a life
interest.
S. 13, TPA runs as follows:
Where, on a transfer of property, an interest therein is created for the benefit of 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.
It is clear that the gift over in favor of the sons or grandsons of Mt. Ram Kali was not in any
sense void, and it was a transfer of an absolute interest but on the other hand, the gift over to the
daughters of Mt. Ram Kali, who were not born at the time of the transfer, was void because the
transfer of the interest to them was subject to the prior interest created by the same transfer in
favor of Mt. Ram Kali, and it was a transfer which did not extend to the whole of the remaining
interest of the transferor in the property, since it was intended merely to be a life interest.
Where by reason of any of the rules contained in S. 13.......an interest created for the benefit of a
person......fails in regard to such person.......any interest created in the same transaction and
intended to take effect after or upon failure of such prior interest also fails.
The question referred by the Division Bench for decision to the Full Bench was:
Whether, in the circumstances set forth in our order, the gift over to Data Din under the deed
executed by Mt. Sugga in favor of Mt. Ram Kali is void having regard to the provisions of Ss. 13
and 16, T. P. Act.
Following were contention taken into consideration. The relevant portion of the deed of gift
relating to the gift over runs as follows:
If on her (Ram Kali's) death there be any male descendants, 'whether born of son or daughter,
he will be the absolute owner of the property, and if Mt. Ram Kali may have only daughters, thay
shall have no power of transfer. If, God forbid, there may not be any issue of Mt. Ram Kali,

whether male or female, living at the time of her death, the gifted property shall not in any way
devolve upon her husband or his family, but it shall go to Data Din, father of Mt. Ram Kali, if he
be then alive, and if Data Din be not alive, then the person who may be living of the line of Data
Din at that time would get it.
The intention of the donor clearly was that Data Din should get the property only in ease the gift
in favor of the male-descendants and the daughters of Ram Kali failed. The case therefore seems
to be fully covered by the words upon failure of such prior interest. If the taking effect of the
subsequent interest is dependent upon the failure of a prior interest which satisfied the other
requirements of the section 16, we fail to see any escape from the rule laid down therein that
such subsequent interest must also fail. As we have held that the other requirements of the
section are satisfied, and we are further of opinion that the gift in favor of Data Din was
dependent upon the failure of the prior interest in favor of the daughters, the result is that the gift
in favor of Data Din must also fail.
Thus issue referred by the division bench to the full bench was given an affirmative answer.

SOPHER V. ADMINISTRATOR GENERAL OF BENGAL


In the case of Sopher v Administrator General of Bengal a testator directed that his property was
to be divided after the death of his wife into as many parts as there shall be children of his, living
at his death or who shall have pre-deceased leaving issue living at his death. The income of each
share was to be paid to each child for life and thereafter to the grand-children until they attained
the age of 18, when alone the grand-children were to be absolutely entitled to the property. The
bequest to the grand-children was held to be void by Privy Council as it was hit by sec.113 of the
Indian Succession Act which corresponds to sec.13 of Transfer of property Act. Their Lordships
of 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, comprise the whole of the remaining interest of
testator in the thing bequeathed.

ARDESHIR V. DADABHOY
In Ardeshir V Dadabhoys case, D was a settler who made a settlement. According to the terms
of settlement, D was to get during life; one-third each was to go to his sons A and R. After Ds
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 sons 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 settler then took power to revoke or vary the settlement in whole or in part of his own
benefit. It was held that Rs 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. As 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 her father, Dadabhoy Sorabji Madon, upon trusts in favor of herself, for
life, and after her decease and subject to a power of appointment, exercisable by will or codicil
only, amongst her issue born during her lifetime; in trust for all her children who being sons,
"shall attain the age of 18 or being daughters shall attain that 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 trustees are to hold the trust funds in trust for the said Dadabhoy Sorabji Madon, his heirs,
executors and assigns.
These arrangements, in favor of the issue of Bai Tehmina, have been held by the learned Judge to
be void by reason of Section 13 of the 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 favor of the settlor.
In coming to that conclusion the learned Judge held that the case of Sopher v. Administrator
General, Bengal , which is a decision of the Privy Council upon the trusts of a will, declared to
be void under Section 113 of the Indian Succession Act, 1925, applied, and he followed a
decision of Mr. Justice Blagden in the case of Ardeshir Baria v. Dadabhoy Baria (1944) 47 Bom.

L.R. 287, who also applied Sopher's case to the trusts of a settlement. It was held by the
Lordships that the decision in the Sophers case could not be applied to the trusts of a settlement
which were transfer inter-vivos. It was held that the words extend to the whole of remaining
interest of the transferor in the property in sec.13 of the Transfer of Property Act were directed
to the extent of the subject-matter and to the absolute nature of the estate conferred and not to the
certainty of vesting.

REFERENCES
STATUTES

Transfer of Property Act, 1882


Indian Succession Act, 1925

CASES

Girish Dutt V. Data Din AIR 1934 Oudh 34


Ardeshir v Dadabhoy AIR 1945 Bom 395
Sopher V Administrator General of Bengal AIR 1944 PC67
Framroz Dadabhoy v Tahmina 49 Bom L.R.882
Isaac Nissim Silas v. Official trustee of Bengal, AIR 1957 cal. 118
T. Subramania Nadar v. T. varadharajan, AIR 2003 mad 364

BOOKS

Dr. Avtar Singh, Transfer of Property Act, 2nd ed. 2009, Universal Law Publishing Co.

Dr. G.C.Bharuka, mulla transfer of property act 1882,10th ed., 2006, Lexis Nexis
Butterworths.

G.P. Tripathi, Transfer of property Act, 1882, 17th ed. 2011, Central Law Publication,
Allahabad.

Institutes of Roman Law, Translated by Ledlie. Second edition, XXII, 639. Oxford, 1901.

OTHER SOURCES

(1931) "Real Property-Future Interests-Rights of Unborn Child," Indiana Law Journal:

Vol. 7: Issue 2, Article 8. available at: http://www.repository.law.indiana.edu/ilj/vol7/


The Law Commission (LAW COM No 331) Intestacy and Family provision Claims on

Death available at: http://lawcommission.justice.gov.uk/docs/lc331_intestacy_report.pdf


http://www.life.org.nz/abortion/abortionlegalkeyissues/rightsunbornchild/