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:

1. The defendants did not owe any duty or care to the plaintiff as they did not know about his existence; and
2. 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.

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The primary aim of laying down the rights and duties of the seller and the buyer in the case of sale is to ensure fair dealings, and as far as possible, to minimize fraud and waste of the property. In this article, we shall discuss the liabilities of seller.

Liabilities of Seller Before Completion of Sale:

Liability to Reveal Fault or Material Defects:

Section 55 Clause (1) Subclause (a) lays down that the seller is bound to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.

An omission to make such disclosure amounts to fraud. The defects in the title include encumbrance or charge on the property, the existence of an easement, and restrictive covenants, etc. The defects in property may include a right of way and existence of nuisance in the neighbourhood.

In Flight v. Booth (1834) 1 Bing NC 370 the Court opined that it is necessary that the defect should be a material defect about which a buyer had known he would have not purchased that property.

In Ganpat Ranglal v. Mangilal Hiralal, AIR 1962 MP 144 case, the Court held that the seller is not bound to disclose such faults which are really known by the buyer or otherwise he is in the know of the information. Court further opined that to attract the provisions of Section 55(1)(a) two conditions are necessary: firstly, that the buyer should not be aware of the existence of the defect in the title; and, secondly, that he could not with ordinary care discover the defect. So far as the first condition is concerned, although the applicant vendor in his written statement pleaded that the buyer was aware of the existence of the mortgage, there is no proof of this fact and it must be assumed that the buyer was not aware of the defect. However, the second condition is not satisfied inasmuch as the buyer could have known about the encumbrance by making inquiries in the office of the Registrar. Section 55(1)(a) of the Transfer of Property Act has, therefore, no application to the present case.

In RL Pinto v FF Menezes AIR 2001 Kant 141 case, the Court held that the primary duty of the seller is to convey a good title to the buyer and therefore, he is bound to disclose a defect in the title if any.

In Ratanlal v Nanabhai AIR 1926 Bom 175 case, the Court held that the onus of showing a failure to disclose a defect in the title is on the buyer.

To Produce Title-Deeds for Inspection::

Section 55 Clause (1) Subclause (b) lays down that the seller is bound to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power.

The seller is bound to produce all the documents demanded by the buyer for his examination. Buyer can ask for documents for his protection. The documents can be examined at the seller’s place or at the buyer’s place. If the buyer does not demand such documents for examination, the seller is in no obligation to show it to the buyer. If the documents are not examined by the buyer, then the Court presumes that the buyer is satisfied with the title of the property. If the buyer does not inspect title deeds, he would be fixed with the constructive notice of any defect in the seller’s power of transfer if it is found later on.

In Mathuri Bawa v. Prafulla Routray, AIR 2003 Ori 136 case, the Court held that It is no longer res integra that existence of a joint family does not raise a presumption that it owned properties jointly. Once there has been an admission with regard to the division of property no presumption of jointness shall thereafter arise.  Mere entry in the record of right showing names of predecessors-in-intent of vendor and vendee will not be conclusive to draw a conclusion that suit property was joint family property, the vendee will derive indefeasible right by virtue of sale-deed from the vendor.

To Answer Questions as to Title:

Section 55 Clause (1) Subclause (c) lays down that the seller is bound to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto.

As the buyer is acquiring the ownership from the seller, the buyer in his interest must get completely satisfied about ownership rights of the seller and his capacity to transfer the property. In such case only examining the documentation by the buyer is not sufficient. He may have some doubts, he is supposed to ask them to the seller and the seller is bound to answer all these questions related to the property.

In the case of Laxmidas & Company v. D.J. Tata case it has been held by the Mumbai high court that if the seller does not answer for such questions then the contract may be rescinded by the buyer.

To Execute Proper Conveyance:

Section 55 Clause (1) Subclause (d) lays down that it is duty of seller that on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place.

This is done by the signing of the sale deed or putting a thumb impression on the sale deed by the seller. The subclause shows that the duties of the seller and buyer are reciprocal. The buyer should make payment and the seller should execute the conveyance. The Subclause says it should be done at proper place and at the proper time. The Subclause does not clarify what is meant by proper place and at the proper time. It is presumed that it can be decided by mutual agreement between the buyer and the seller.

In Jamshed v. Burjorji, AIR 1934 Bom 1 case, the Court held that the conveyance must be within a reasonable time after tender of price. In case there is no stipulation of fixing the type of execution of the conveyance and seller makes unreasonable delay in executing conveyance, the proper course is to give the notice to make time as the essence of the contract.

To Take Care of Property and Title Deeds:

Section 55 Clause (1) Subclause (e) says that it is duty of seller that between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents.

Between the date of the contract of sale and date of actual delivery of property, the property remains with the seller. Since the seller has already executed a conveyance in the name of the buyer, the seller holds the property as the trustee of the buyer. During this period the seller has to take care of the property and all the relevant documents related to property. If the seller fails to protect them, he will have to compensate the buyer for the loss.

To Pay Outgoings (Public Charges and Rent Accrued):

Section 55 Clause (1) Subclause (g) says that the seller is bound to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.

This clause clarifies that before the completion of the sale, the seller has to pay all outgoings on the property like rent, revenue, taxes, etc. up to the date of the sale. Unless there is the contrary intention, the seller must discharge all the encumbrances, if there are any on the property. The buyer has a right to require the seller to produce evidence that the property is free from all encumbrances. This liability of seller continues before the completion of the sale and even after completion of the sale.

In Nathu Khan v. Buxto Nath, AIR 1922 PC 176 case, the Court held that where the seller does not pay the outgoings and the buyer subsequently pays them, then the buyer becomes entitled to reimbursement by the seller.

Liabilities of Seller After Completion of Sale:

To Give Possession of Property:

Section 55 Clause (f) Subclause (f) lays down that the seller is bound to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits.

The seller is supposed to give the possession of the property to the buyer or to his authorized agent whenever the buyer requires. The actual delivery of property depends on the nature of the property. In the case of tangible immovable property, physical control is to be given to the buyer. While in case of intangible movable properties the delivery of possession is symbolic. Actual possession is not possible in the case of incorporeal rights such as a right to a fishery, a right of way, etc. The possession should be given after transfer of ownership to the buyer at the date of execution of the sale deed if there is no contract to the contrary.

Implied Covenant for Title:

Section 55Clause (2) lays down that the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it. The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

A covenant is a legal agreement between two or more parties. It is normal practice for the seller to provide covenants for title, in standard form, by selling with “full” or “limited” title guarantee, in accordance with the Law of Property (Miscellaneous Provisions) Act 1994. The effect of this wording is that, following completion, the buyer can sue the seller for breach of the title guarantee. The seller will normally sell the property with full title guarantee unless the seller is a trustee, personal representative or mortgagee, in which case he will normally sell the property with limited title guarantee.

In Raghunathan v. Chellammal,  94 LW 755 and B. Kutpuddin vs Zuleika Bibi (1997) IMLJ 15 cases, the Courts held that Section 55(2) of the Act makes it clear that the benefit of covenant for the title runs with the land and is enforceable by the subsequent purchasers of the land and if the buyer resells to several purchasers, each of the purchasers is entitled to sue on the covenant in respect of his part.

In N.Narasingarayadu v. N. Ankineedu, AIR 1962 A.P. 192 case the Court held that under Section 55(2), every sale for consideration carries with it a covenant for the title.

In Tavvala Veerabhadra Rao v. Bonam Venugopala Rao, 1997 (4) ALT 713 case, there was a warranty of title Under Section 55(2) of the Transfer of Property Act.

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