Ascertaining property rights of an unborn is essential as it has a direct implication on the rights of other existent individuals. 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. The unborn is regarded by legal fiction as already born for the creation of interest in a property. Before studying the right of an unborn child under the Transfer of Property Act, 1882, we shall study the constitutional provisions and Provisions in other Acts in favour of unborn child and transfer of property to unborn child.
Article 21 of the Constitution of India:
Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 14 of the Constitution of India:
Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Section 11 of the Indian Penal Code, 1866:
Person: The word “person” includes any Company or Association or body of persons, whether incorporated or not.
General Clauses Act, 1897, defines the term “person” exactly same way as it is done in the Indian Penal Code.
In all above provisions, the word “person” is used. It means it is applicable to all persons i.e. citizens and foreigners. But it is not including the word “unborn child” in its definition. Hence there is some discrepancies in the status of unborn child.
The definition, as is clear from the language of this section, is not exhaustive but inclusive. The word ‘person’ includes a juridical person and as such an idol being a juridical person capable of owning property is a ‘person’ within the meaning of this section. An unborn child may be called a person if its body is sufficiently developed in its mother’s womb to call it a child.
From the general term “person” we can come to conclusion that the right to life has been guaranteed as a fundamental right to everyone under this article, which may be deemed to include an unborn child. 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
In Elliot v. Lord Joicey, 1935 AC 209 case, the Court held that an unborn child is taken care of just as much as if it were in existence, in any case in which the child’s own advantage comes in question; though no one else can derive any benefit through the child before birth.
In Roe v. Wade, 410 US 113 (1973) case, the Court held that State’s interest in potential human life becomes compelling at a point of viability.
In Webster v. Reproduction Health Services, 1061 Ed 2d 410 (1989) case, the Supreme Court of America upheld a Missouri Statute which declared that the life of each human being begins at conception and that unborn children have a protectable interest in life, health, and well-being.
In Davis v. Davis, (1989) 15 FLR 2097 case, the Court held that as a matter of law, human life begins at conception.
In Walker v. Great Northern Railway Company of Ireland, (1890) 28 L.R. Ir. 69 case, where the plaintiff’s pregnant mother travelled on the defendant’s railway. There was an accident of the railway. Plaintiff’s claim was he had been born crippled and deformed because the injury was caused to it by the accident due to the railway’s negligence and hence he should be compensated by the defendant. The Court held that the defendants are not liable to pay damages due to the following two reasons:
- The defendants did not owe any duty or care to the plaintiff as they did not know about his existence; and
- The medical evidence to prove the plaintiff’s claim was very uncertain.
In Tagore v. Tagore, (1872) I 1A Suppl. 47 case, the Supreme Court observed that an infant in the womb is a person in existence for the purpose of making a gift to an unborn person. It is to be noted that this judgment is applicable to an unborn child for the purpose of a gift only.
In Jabbar v State AIR 1966 All 590 case, the Court observed that the term ‘person’ would include an unborn child in the mother’s womb after seven months of pregnancy, that means it is capable of being spoken of as a person if its body is developed sufficiently. It is to be noted that this decision is applicable to a foetus who has completed its seven months. Thus the exact definition of “unborn child” is not given in any Act or by Indian Court.
Meaning of Transfer of Property:
Section 5 of Transfer of Property Act, 1882:
Transfer of property defined – In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act. In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
According to the definition of transfer of property (Section 5 of the Transfer of Property Act, 1882) , we can write the following characteristics of a Transfer of a Property.
- It is an act of conveyance
- Conveyance is inter vivos means between living persons.
- Property may be conveyed to one or more other living persons, or to himself, or to himself and one or more other living persons.
- Property may be transferred in the future or in present.
- The term ‘person’ includes company or association or body of individuals, whether incorporated or not
Under T. P. Act, 1882, there are 6 modes of transfer of property which are Sale, Mortgage, Lease, Exchange, Gift, and Actionable claim. Under T. P. Act, 1882, Partition, Relinquishment, Surrender, Easement, Will, Compromise, Family Settlements, are not considered as a transfer of property.
According to Section 5 of the Transfer of Property Act, 1882, transfer under this section, is limited to living persons only. Hence a transfer of property cannot be made directly to an unborn person under this Section.
Section 13 of the 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.
The transfer of property to unborn chid can be done using provisions of Section 13 of the Act. The interest created in favour of an unborn under this Section is contingent on the occurrence of birth.
Essentials of Transfer for Benefit of Unborn Person:
There cannot be a direct transfer of property to Unborn Person:
According to the provisions of Section 5 of the Transfer of Property Act, 1882, property may be conveyed to one or more other living persons, or to himself, or to himself and one or more other living persons. Thus under Section 5 of the Transfer of Property Act, 1882, cannot be transferred directly. If such a transfer of property is made to an unborn person, it will lead to a scenario wherein the property will remain without an owner from the date of transfer of property till the date the unborn person comes into existence.
Transfer of a property to unborn child can be effected by creating prior interest:
Such transfer can be effected using the provisions of Section 13 of the Transfer of Property Act, 1882. As per the provisions, in order to transfer a property for the benefit of an unborn person on the date of the transfer, it is imperative that the property must first be transferred by the mechanism of trusts in favour of some person living other than the inborn person on the date of transfer. Thus to create the interest of unborn child, first prior interest should be created. The prior interest persists from the date of transfer and the date when the unborn child comes into existence. As soon as the unborn child takes birth, the property rights immediately get transferred in his/her name. Post which he or she will be the sole owner of the property.
The transfer of property to unborn child under Section 13 of the Transfer of Property Act, 1882 must be absolute:
When an interest is created in favour of an unborn child, such interest shall take effect only if it extends to the whole of the remaining interest of the person transferring the property in the property, thereby making it impossible to confer an estate for life on an unborn child. Thus absolute transfer of interest means The entire property must be transferred to the unborn person. The transfer to an unborn person must be absolute and there should be no further transfer from him to any other person. The principle behind such a provision is that a person disposing of property to another person shall not cause obstruction in the free disposition of that property in the hands of more than one generation. This concept can be understood by reading, the illustration attached to the Section 13.
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.
Section 20 of the Transfer of Property Act, 1882:
When unborn person acquires vested interest on transfer for his benefit.—
Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.
According to this provision, unborn person may not be able to enjoy the possession of property as soon as he is born but he may, however, acquire a vested interest in the property since his birth. The mentioned provision however may be waived off if the terms of the agreement mention a contrary clause.
For example, if “A” transfers an estate to trustees for the benefit of A’s unborn son with a direction to accumulate the income of such estate for a period of ten years from the date of the birth of A’s son and then to hand over the funds to him. A’s unborn son acquires a vested interest upon his birth, although he is not entitled to take and enjoy the income of the property for a period of ten years.
Interest created in favour of unborn person such as referred in Section 13 is dissimilar to the interest envisaged by Section 20. Section 20 refers to the creation of a limited interest by the transferor in favour of someone in the first instance and creation of successive interest in someone else thereafter.
In K. Vasanthappa v. Channabasappa, AIR 1962 Mys 98 (100) case, where A donor transferred his property by a gift in favour of H a living son of his daughter (donor’s daughter). In the gift deed, it was also provided that the property gifted shall also be enjoyed by other sons who might be born to the donor’s daughter before H attained the majority. T was born to the donor’s daughter before H attained the majority. H transferred the entire gifted property. It was held that T, on birth acquired ½ share in the gifted property in view of Section 20, and T was entitled to petition and recover possession of his ½ share in the property. Court also held that Section 20 is not controlled by the provisions of Section 13.
In F. M. Devaru Ganapathi Bhat v. Prabhakar Ganapathi Bhat, AIR 2004 SC 2665 (2668) case, where a donor by gift deed gave the property to her brother’s son then living and also stated in the gift deed that other male children born to her brother would also be joint holders with the donee. The Court held that the gift deed was valid in view of the provisions of Section 20 and was not hit by the provisions of Section 13 of the T.P. Act.
Transfer of Property to Unborn Child under Personal laws:
Under Hindu Law and Mahomedan Law, a gift or bequest to a person unborn is void.
Conclusion:
The transfer of property to unborn child cannot be executed in respect of unborn persons directly but it can be executed indirectly by the machinery of trusts (i.e. by creating a prior interest). The prior interest persists from the date of transfer and the date when the unborn child comes into existence. As soon as the unborn child takes birth, the property rights immediately get transferred in his/her name. Post which he or she will be the sole owner of the property. The underlying fundamental principle enshrined under section 13 of the Transfer of Property Act is that a person disposing off property to another person shall not create hurdles for the free disposition of that property in the hands of one or more generations.