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ABSTRACT

Unborn, simply put, refers to individuals who have not yet been born. Although various interpretations exist, the fundamental concept remains consistent across different contexts. The debate surrounding the rights of the unborn arises from their legal protection. The intersection of science, morality, and law makes the rights of the unborn a complex issue. Within the legal framework, an unborn child is often treated as if already born, as per the legal maxim “nasciturus pro jam nato habetur.” This perspective extends to property law, where a child in the mother’s womb is recognized as a person or already born, particularly if born alive thereafter. However, a definitive determination in this regard is lacking. Clarifying the rights or status of individuals yet to be born is crucial, as it directly impacts the rights of existing individuals, particularly regarding property rights. This legal construct is evident in Indian jurisprudence through certain provisions that ensure property rights for the unborn in legal statutes.

INTRODUCTION

The ongoing philosophical and legal discourse regarding the rights of the unborn is deeply rooted in the concept of ‘personhood’. Many philosophers contend that the commencement of human life is distinct from and less pertinent than the emergence of a human “person”. This viewpoint distinguishes between a human fetus and a 5-year-old child, with most readily recognizing the 5-year-old as a person while debating the personhood of the fetus. This perspective upholds the notion that all human life inherently possesses greater intrinsic value and a right to protection compared to other species.

According to Salmond, a person is defined as someone who holds legal rights and responsibilities, with legal personality commencing at birth, making birth a prerequisite for the acknowledgment of rights. However, within certain realms of legal theory, an unborn entity can be considered a person by virtue of legal fiction, although legal personhood strictly begins at birth. English law acknowledges the existence of the unborn for their benefit, particularly in property law concerning gifts or wills and in considerations related to the rule against perpetuities. Similarly, ancient Hindu law recognizes the unborn for partition purposes and permits inheritance upon the child’s birth, treating them on par with any other individual. In essence, the term ‘unborn’ refers to an individual who is not yet born or who will come into existence at a future time, including those currently in the womb of the mother.

LEGAL FRAMEWORK IN PLACE: Creation of Interests (Secs. 13 to 18):

Sections 13 to 18 provide for creation of interests; in favour of child in womb (Section 13); child not even in womb (Section 14); in favour of a class (Sections 15-16).

CHILD IN WOMB

Section 13 of Transfer of Property Act, 1882: 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.

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.

COMMENTS:

First creation of interest in favour of a person in womb. Section 13 does not say transfer to unborn person. It says transfer for the benefit of unborn person who may be child in womb (Sec. 13) or child not in womb (Sec. 14).

‘Child in womb’ (En ventre sa mere French word) means mother’s womb, refers to fetus in uterus. Law may treat it as in existence for conveying some interests. First thing to see is whether there is any law in that country which treats child in womb as person. If law is; it is person, if there is no law; it is not person. Section 13 stands somewhere in between. An interest can be created in favour of child in womb by mechanism of trust as given in Section 13, Property so given would vest on his birth (Section 20).

POWER POINTS:

1. Exception to intervivos rule: Section 13 is an exception to general scope and extent of Transfer of Property Act which deals with transfer inter vivos only. Transfer by a person to child in womb is special law laid down in Section 13.
2. Whether transferee is or is not in existence: Section 13 applies only when transferee is not in existence (but is in womb) at the date of transfer.
3. Unborn: Unborn includes ‘child in womb’ and also ‘child not in of prior and absolute interest shall apply whether child is in womb or not womb. A child in womb is not a person living (Section 20). So mechanism of prior and absolute interest shall apply whether child is in womb or not in womb.
4. Whole remainder interest (Absolute interest) of the transferor in the property must be conveyed to unborn person.
5. Prior Interest is condition precedent for such transfers. No direct transfer to child in womb is allowed. The mechanism of prior interest being reserved for some one in existence with a hope that unborn person will come in existence on or before the expiry of the prior estate or last of these if many in that property.
6. Section 13 regulates procedure of creating interest in favour of transferee in womb, whereas Section 14 provides for the same to a transferee not even in womb.

Indian Succession Act – Parallel Law

Sections 13 to 18 place restrictions on the power of tying up property by a transaction inter vivos similar to those imposed by Sections 113 to 117 of Indian Succession Act, 1925 in case of Wills. Section 113 of Indian Succession Act deals with Will (wasiyat) whereas Section 13 of T.P. Act deals with private transfers other than a Will. Provisions are identical in both Acts. The illustrations given in Section 113 of Indian Succession Act are useful to understand Section 13 of T.P. Act as well.

Section 13, T.P. Act corresponds to Section 113, Indian Succession Act, 1925 which runs as follows:

“Bequest to person not in existence at testator’s death subject to prior bequest. 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.”

Illustrations:

• Property is bequeathed to A for life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not a bequest to the whole interest that remains with the testator. The bequest to A’s eldest son for his life is void.

Section 13 elaborated: A person who is not in existence can neither be a transferee of property, nor a beneficiary under a trust until he comes into existence. There can, therefore, be no immediate transfer of property or creation of interest in favour of a person not in existence. The principle is recognized by this Act as well as by the Indian Trusts Act. Section 5 of this Act provides that ‘transfer of property’ means a transfer in favour of a living person and the expression “living person” will not include a person, not in existence. Similarly, Section 9 of the Indian Trusts Act, 1882 provides that a beneficiary under a trust must be a person “capable of holding property” and this expression also excludes a person not in existence.

Who is Person in Existence?

A child born is a person in existence. A child in womb is not a person in existence so is a child not even in womb. A person not in existence may be a person in womb or person not even in womb. Person in womb is in existence but he cannot get property directly. He can get it indirectly under mechanism given in Section 13. Person not in womb is not in existence. He can get property under system or mode of transfer given in Section 14. A person in womb can be given property under Section 13. The mechanism given in Section 13 is; prior estate and absolute estate. If so, transfer to unborn person but in womb can be made indirectly through this mechanism.

Person not even in womb: Section 14 applies to such cases. The relevant requirement is that if transferee is not even in womb, he must be born prior to expiry of the prior estate or last prior estate if many. For example, if property is given to A, then to B, then to C (all present) and after C to D (who is not in womb) on a date of transfer. C dies on 1-10-2010 at 11.50 p.m. D is born on 11.51 p.m. same day. He does not get under transfer.

A child in womb is child in existence but not one to whom property can be conveyed directly. It can be in mode given by Section 13. Mechanism of trust, i.e., prior interest and absolute interest. Being born on date of transfer is not required.

CASE LAWS:

Girijesh Dutt v. Data Din [1], is a leading case on Section 13. In this case, A made a gift of her property to B (daughter of her nephew) and after her, to her male descendants (sons) if any, absolutely. In case, there was no male issue to B, then to the B’s daughters without power of alienation. If there were no issues to B (male or female) then to C. B died issueless. The question was whether gift to unborn daughters was valid? Whether gift to B (her nephew) was valid? The Court held; gift to unborn daughters failed under Section 13; (i) no prior estate and (ii) no absolute transfer, gift to C failed under Section 16.

Child in Womb (En ventre sa mere) – Person is to whom law has ascribed ‘personality’, that is has made it a right-duty bearing unit. If law so likes, it can confer personality on idol. tree, chair, corporation, association or anything it chooses to favour. ‘Child in womb’ is not person. No law confer foetus. PNDT recognizes/protects some of its interests. Section 13 permits Transfer of Property to child in womb. Through the mechanism of trust, i.e., prior interest followed by absolute remainder to him. Personality is gift of law to child on Birth. The property vests in child on birth (Section 20).

Sopher’s case

In the case of Sopher v. Administrator General of Bengal [2], 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 the Privy Council as it was hit by Section 113 of the Indian Succession Act which corresponds to Section 13 of the Transfer of Property Act. Their Lordships of the Privy Council observed that: “If under a bequest in the circumstances mentioned in Section 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.”

The decision in Sopher’s case may be explained in the light of two illustrations (a) deals with clause of contingency, (b) deals with clause of defeasance. Transfer is made-

(a) to P (a bachelor) for life, then to P’s sons if P survives the transferor A;

(b) to P (a bachelor) for life, then to P’s sons; but if P does not survive the transferor A, the property shall go to R.

Here in case (a) the transfer is subject to a clause of contingency and in case (b) to a clause of defeasance. In such a case, the whole of the remaining interest of the transferor cannot be given to the unborn person, because a transfer to an unborn person was held to be valid in Sopher’s case.

Ardeshir’s case

In Ardeshir v. Duda Bhoy’s [3] case D was a settlor 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 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 sons of each absolutely. If A and R both pre-decease D without male issue, the trust were to determine and the trust property were to revert to the settlor absolutely. The settlor then took power to revoke or vary the settlement in whole or in part of is own benefit. It was held that R’s son who was not born either at the date of the 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.

In view of the decision in Sopher’s case, the question would arise whether a trust in favour of an unborn person in which the power is reserved by the settlor to revoke it would not be valid? It would also be doubtful whether a trust in which provision has been made for the management of the interest of the unborn persons after their birth and during their minority would be valid?

CASE STUDIES:

Application of Sopher and Ardeshir rulings in India

The decisions in Sopher’s case and Ardeshir’s case were applied by Bombay High Court in Framroz Dababhoy v. Tahmina[4], in this case, Bai Tahmina settled a certain sum upon trust in favour of herself for life and after her death and subject to the power of appointment by codicil or Will among her issues 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 being daughters, in equal sums. It was held by their Lordships that the decision in the Sopher’s case could not be applied to the trusts of a settlement which were transfers inter vivos. It was held that the words ‘extends to the whole of the remaining interest of the transferor in the property’ in Section 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. This decision was again reiterated by the Bombay High Court.”

Sopher’s ruling superseded

The Bombay Legislature has, however, passed the Disposition of Property Act (Bombay Validating), 1974 by which it is provided that trusts or Wills made prior to 1st January, 1947 would not be deemed to be invalid by reason of Section 13 of the Transfer of Property Act and Section 113 of Indian Succession Act, i.e., as per the construction put on these provisions by the Privy Council in Sopher’s case[5].

The testator in his Will states that he and his wife during their lifetime will enjoy the property and after their death, their property “should be enjoyed by the daughter K and the issue that might be born to her.” The High Court of Madras held that –

(1) The Will does not create a joint gift to K and such of her children as might be alive. After the life interest of the widow, the property is transferred to K absolutely.

(2) The gift in favour of the children that might be born to K is not hit by Section 113, Succession Act and Section 13, Transfer of Property Act.

(3) As K is alive, her son is not entitled to sue for a share of the property.

Rule in Whitby v. Mitchell.

This rule is also known as Rule Against Double Possibilities (Abolished in England). It is also called old rule against perpetuity. Prior to 1926, contingent remainders whether legal or equitable, were subject to this rule. Whitby rule may be stated as follows:

“If an interest in the realty is given to an unborn person, any remainder to his issue is void, together with all subsequent remainder. Thus, if land was limited to “A (a bachelor) for life, remainder to his son for life, and then to A’s son’s son in fee simple the remainder to the grandson would be void under this rule.”

This rule was a common law rule applicable to legal estates in land. The rule against perpetuities was a subsequent development, and as it overlapped the rule against double possibilities, that is: Whitby v. Mitchell [6] rule, the latter rule (Whitby’s rule) has now been abolished by Section 161 of the Law of Property Act, 1925 and transfer to unborn persons are now governed by rule against perpetuity in English law even.

CRITICAL ANALYSIS

Transfer to Posthumous Children; Section 13 applies – A transfer cannot be made directly to an unborn person, for the definition of transfer in Section 5 is limited to living person. Such a 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 transferee who hold the property for the benefit of the unborn person.

Both under English and Hindu law a child en ventre sa mere (that is a child in the womb) is considered to be in existence, for some purposes but this rule is not applied in English law, unless it is directly or indirectly for the benefit of child. Lord Russel of Killowen observed:

“There are many cases decided by the Courts in England in which posthumous children have been held to be included in gifts to children born in father’s lifetime, or to children living at father’s death. It is because the potential existence of such a child places it plainly within the motive and reason of gift.”[7]

‘Child in womb’ cannot be said to be ‘not in existence.’ He certainly exists. Amongst Hindus, many sacraments like Punsawan are performed recognising existence of such child. But for purpose of transfer of property, he cannot be a transferee directly. He can get property, only through machinery of law provided in Section 13, i.e., prior interest be given in same property to any or many living persons and after this ceases, the remainder must be given to child in womb absolutely.

It has been held by the Supreme Court in Raja Bajrang Bahadur Singh v. Thakurain Bakhtaraj Kuer [8], 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 a 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.”

Prior interest and absolute remainder – The estate must go to some person between the date of the transfer and the birth of ultimate transferee. The interest of the unborn person must, therefore, be in every case preceded by a prior interest; and the section in effect says that the interest of the unborn person must be the whole remainder, so that it is impossible to confer an estate for life on an unborn person. In the Illustration to the section, the interest created for the benefit of the unborn eldest son is only a life-interest and it therefore fails. In Girijesh Dutt v. Data Din, A made a gift of her property to B, her nephew’s daughter, for life, and then to B’s male descendants, if any, absolutely; but if she should have no male descendant then to B’s daughter without power of alienation; but if there were no descendants to B, male or female, then to her nephew. B died without issue. The gift to the unborn daughters, being of a limited interest and subject to the prior interest created in favour of B, was invalid under Section 13 and the gift to the nephew therefore failed under Section 16 [9].

AFTERMATH

The aftermath of transferring property to unborn persons encompasses multifaceted implications across legal, societal, and ethical dimensions. Legally, it prompts considerations regarding the recognition of unborn individuals as legal entities entitled to property rights and the establishment of frameworks to govern such transfers. This may entail clarifying the extent of the unborn’s rights, determining the validity of property transfers, and addressing potential conflicts with existing laws.

Societally, the aftermath involves reflections on the broader implications of property transfers to unborn individuals. This includes discussions on familial dynamics, inheritance patterns, and the distribution of wealth across generations. Moreover, it raises questions about societal attitudes towards unborn persons, their perceived value, and their role within familial and societal structures.

Ethically, the aftermath prompts deliberations on the moral implications of bestowing property rights upon individuals who are not yet born. This may involve considerations of fairness, equity, and intergenerational justice, as well as discussions on the autonomy and rights of future generations.

Overall, the aftermath of transferring property to unborn persons necessitates careful examination of its legal, societal, and ethical ramifications to ensure equitable and just outcomes for all parties involved.

CONCLUSION:

It can be deduced that within the legal framework, the term ‘person’ encompasses the unborn, referring to individuals who are not yet in existence but are expected to be born alive. However, the extent to which the law recognizes the rights of the unborn remains a contentious issue, prompting debates over whether greater importance should be placed on the rights of yet-to-be-born individuals or those of living, natural persons. This matter involves philosophical, metaphysical, and legal considerations, each contributing to the complexity of the discussion. Nevertheless, property law, which governs the regulations, rules, and principles pertaining to property, both tangible and intangible, acknowledges the existence of the unborn for their benefit. The legal concept of “child en ventre sa mere” (a child in the mother’s womb) is recognized as already born within property law, ensuring that unborn individuals have certain rights over property for their benefit. Property law treats the unborn as existing for all matters related to their proprietary rights. However, the current legal stance, which limits the extent of proprietary rights until the child’s subsequent birth, safeguards the lawful rights of other individuals.

Under common law, precedents illustrate that the unborn are even deemed capable of recovering damages in legal actions, as they are considered beneficiaries of the father’s estate by virtue of legal fiction. Various legal enactments concerning property law, alongside personal laws prevailing in India, confer legal status upon the unborn concerning proprietary rights.

Considering the legal landscape, it can be reasonably assumed that the recognition of personhood for the unborn in relation to proprietary rights has been largely settled.

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Written by- Chiraag K A

[1] AIR 1934 Oudh 35 : 147 I.C. 991.

[2] AIR 1944 PC 67

[3] 45 Bombay 395

[4] 49 Bom L.R. 882

[5] See Damodarnath Mothan v. Amma & ors, AIR 1944 Mad. 22.

[6] (1890) 54 Ch. D. 85

[7] Elliot v. Joicey, (1915) A.C. 299

[8] AIR 1952 S.C. 7

[9] Girijesh Dutt v. Data Din, AIR 1934 Oudh 35 : 147 I.C. 991