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 reaties, the rule regarding the protection of life before birth could be considered as !"us cogens! #final norm n orm of general international law$.
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According to %leming and Hains: &he right to life of all human beings has the nature of an intransgressible norm already contained in the 'niversal (eclaration of Human )ights *+-, the nternational Covenant on Civil and /olitical )ights *+00 and the (eclaration of the )ights of the Child *+1+. 'nder international law, the unborn child is protected.
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2xplicit protection is extended to the unborn child in the nternational Covenant on Civil and /olitical )ights *+00, and in the Convention on the /revention and /unishment of the Crime of 3enocide *+-.
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he text text #of the 'niver 'niversal sal (eclarati (eclaration on of Human Human )ights )ights *+-$ *+-$ clearly clearly states states that that everyone has the right to life, and that what is meant by everyone is !every member of the human family! 4 that is all human beings. Here is the nub of the matter.& matter.&
TRANSFER OF PROPERTY TO UNBORN A child in its mother5s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim nasciturus pro jam nato habetur 6 which means that the legal capacity of the natus is sometimes determined by referring bac7 to a time when he was still nasciturus
#unborn$. hus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being a life chosen to form part of the period in the rule against perpetuities.
TRANSFER OF PROPERTY ACT – SECTION 13 Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property. Sec 13 !" Prior Interest : /rior interest is not affected by reason of the subse8uent interest being rendered
void by this rule. t is neither enlarged or extinguished #Moh!e" Shh #$ O%%i&i' Tr(stee o% Ben)' , *+9+0 CAL *$.
*i!ite" Interest : Limited interest cannot be created for the benefit of an unborn person even
though it is sub"ect to a prior interest in favor of a living person.
I''(strtion –
A transfers property of which he is the owner to ; in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A!s second son. he interest so created for the benefit of the eldest son does not ta7e effect, because it does not extend to the whole of A!s remaining interest in the property. # T$ S(+r!ni N"r #$ T$ #r"hr,n , A) <99 mad 0 at p. 0-$
PRE-RE.UISITES FOR A /A*ID TRANSFER OF PROPERTY TO AN UNBORN PERSON
i$ No transfer: he transfer of property can be done by way of trusts but not directly. n 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 en"oyed by person#s$ until the unborn comes into existence. iii$ Before the death of last life estate holder: he unborn person must come into existence before the death of the last life estate holder. t is not necessary that he should be born, even if he is in the mother5s womb that is enough. A child en ventre sa mere is e8ual to child in essence meaning a child in the mother5s womb is e8ual 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. he pertinent fact here is that the transfer can be made to an unborn person but not to the issue of an unborn person. =here 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 n the case of Isaac Nissim Silas v. Official trustee of Bengal , A..) *+1>, Cal **-, the trust was a family trust created for the benefit of settlor and h is wife, his two sons and their children to be born. At the date of the trust the settlor5s family consisted of his wife and his three children. he trust deed provided that the trustee after ma7ing provisions for meeting the necessary expenses, the property will remain in lifetime of settlor, thereafter to his wife, thereafter to his three sons in e8ual shares. )emainder in favor of the sons children that may be born and remain alive at a certain period sub"ect to certain restrictions. he legality of the gift made in favor of the grandsons was 8uestioned. t was held that the trust in favor of the grand4children in deed of trust was void.
ORIGINS he origin of rule against perpetuity stems from the days of feudal 2ngland as far bac7 as in *0-< from the case of (u7e of ?orfol7!s, wherein, Henry #the <
the titles many generations later, if certain conditions were to occur. t 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. he concept of trying to control the use and disposition of property beyond the grave was often referred to as control by the &dead hand&. he rule against perpetuity, in 2ngland, was later codified in the form of the /erpetuities and Accumulations Act, *+0.
POSITION IN INDIA ;efore the ransfer of /roperty Act, *--<, there was practically no law as to real property or, as to personal property, in ndia. A few points had been covered by regulations, and the Acts, which were repealed either wholly or in part b y @ection < of the ransfer of /roperty Act but for the rest of the law, the Courts, in the absence of any statutory provision, adopted the 2nglish law as the rule of "ustice e8uity and good conscience. his was not satisfactory, for the rules of 2nglish law were not always applicable to social conditions in ndia, and the case law became confused and conflicting. o remedy this state of affairs, a Commission was appointed in 2ngland to prepare a Code of substantive law for ndia, and the ransfer of /roperty Act, though drafted in *->9, was the last of these drafts to become law. ;y the private laws of Hindus and ahomedans 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, /arsis and Bews, to whom 2nglish law was applied, to the extent that estates tail could be created as seen in the odes of Conveying Land Act, *-1. he ndian @uccession Act, *-01, was the first Act, which curtailed the right of the other communities to dispose of property by will to unborn persons, by modifying the 2nglish law, but so far as the transfer of property inter vivos was concerned, 2nglish law continued to be applied to the other communities, until the passing of the ransfer of /roperty Act in *--<, and by statutes of *+*, *+*0 and *+<*. 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 ndian @uccession Act, *-01, and the ransfer of /roperty Act, *--<.
RU*E AGAINST PERPETUITY Se&tion 10 o% TPA provides that:
#$o transfer of property can operate to create an interest which is to take effect after the life time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.# ANA*YSIS
he /A does not permit transfer of property directly in %#or o% an unborn person. hus, in order to transfer a property for the benefit of a person unborn on the "te o% the trns%er , it is imperative that the property must first be transferred in favor of some other
person 'i#in) on the "te o% trns%er . n other words, the property must vest in some person between the date of the transfer and the coming into existence of the unborn person since property cannot be transferred directly in favor of an unborn person. n other words, the interest of the unborn person must, in every case, be preceded by a prior
interest. %urther, where an interest is created in favor of an unborn person on a transfer of property, such interest in favor of the unborn person shall ta7e effect only if it extends to the whole of the remaining interest of the transferor in the property, thereby ma7ing it impossible to confer an estate for life on an unborn person. n other words, the interest in favor of the unborn person shall constitute the entire remaining interest. he underlying principle in section * is that a person disposing of property to another shall not fetter the
free disposition of that property in the hands of more than one generation. @ection * does not prohibit successive interests #limited by time or otherwise$ being created in favor of several persons 'i#in) at the time of the transfer. =hat is prohibited
under section * is the grant of interest, limited by time or otherwise, to an unborn person. %urther, @ection * of /A provides that where an interest is created for the benefit of an unborn person #in accordance with the provisions of section *$, such interest shall not ta7e effect if the interest is to vest in such unborn person %ter the life time of one or more persons living on the date of the transfer #i.e. the person in whose favor the prior interest is created as re8uired under section *$ n" the minority of such unborn person. n other words, the interest created for the benefit of an unborn person shall ta7e effect only if the interest is to vest in such unborn person +e%ore he attains the age of eighteen
years. @ection * further provides that the unborn person, in whose favor the interest is created, must have come into existence on or +e%ore the expiry of the life or lives of the person#s$ in whose favor the prior interest is created as re8uired under section *.
ETENT OF PERPETUITY PERIOD Position in In"i Life or any number of lives in being D period of gestation D minority period
of the unborn beneficiary. En)'ish *2 Life or lives in being Dperiod of gestation Dminority period. OTHER RE*E/ANT PRO/ISIONS •
Se&tions 113 n" 110 o% In"in S(&&ession A&t 1456: @ections ** and ** of the @A
are almost identical to sections * and *, respectively, of /A. he main difference between the provisions under the @A and the provisions under /A is that the former deals with be8uests which ta7e effect only on the death of the testator while the latter relate to transfer of property inter vivos. @ection * of /A controls @ection ** of @A and both of them are to be read together, as opined by the Apex Court in R, B,rn) Bh"(r Sin)h #s$ Th7(rin B7htr, 8(er #A) *+1 @upreme Court >$. t was
further observed by the Court that: #%t is &uite true that no interest could be created in favor of an unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some are not,
it does not fail in its entirety' it is valid with regard to the persons who are in existence at the time of the testator(s death and is invalid as to the rest.#
EP*ANATION •
he effect of these )ules is that a transferE gift can be made to an unborn person sub"ect to the following conditions: #i$ that the transferE gift shall be of the whole of the remaining interest of the transferorE testator in the thing transferredE be8ueathed and not of a limited interest6 and #ii$ that the vesting is not postponed beyond the life in being and the minority of the unborn person.
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n simple terms, while section * of /A lays down the mechanism for transfer of property for the benefit of unborn person and #what property# is re8uired to be ultimately transferred in favor of an unborn person in order to validate such transfer, section * of /A provides the #maximum period as to when# such property can be vested upon such unborn person.
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@ection * of /A supplements section * of /A 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 * and * of /A are re8uired to be read together and the provisions contained thereunder are re8uired to be duly complied with, in order to give effect to the intended transfer in favor of such unborn person.
DIFFERENCE BET9EEN INDIAN AND ENG*ISH *A9 *$ he minority period in ndia is *- years whereas it is <* years under 2nglish law. <$ he period of gestation should be an actual period under ndian Law but it is a gross period under 2nglish law.
$ 'nder ndian law, property should be given absolutely to the unborn person whereas in 2nglish law, need not be absolutely given. $ he unborn person must come into existence before the death of the last life estate holder as per ndian law whereas he must come into existence within <* years of the death of the last life estate holder in case of 2nglish law.
ECEPTIONS *$ Transfer for public benefit: =here 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 7nowledge, religion, health, commerce or anything beneficial to man7ind. <$ Covenants of Redemption: his rule does not offend the covenants of redemption in mortgage. $ Personal greements: Agreements that do not create any interest in the property are not affected by this rule. his rule applies only to transfers where there is transfer of interest. $ Pre!emption: n this there is an option of purchasing a land and there5s no 8uestion of any 7ind of interest in the property, so this rule does not apply. 1$ Perpetual "ease: t is not applicable to the contracts of perpetual renewal of leases. his rule is not applicable to mortgages because there is no creation of future interest.
CASE *A9S
GIRISH DUTT AND OTHERS /$ DATA DIN AND OTHERS
he plaintiffs in the suit were (ata (in, @itla (in, @heo angal and ;indeshari /rasad. hey brought the suit for possession of certain plots in the village of /urabayum in the district of /artabgarh. he defendants were 3ir"ish (utt, )a"endra. %acts4 Fne t. @ugga was the absolute owner of the property in suit. Fn *1th Banuary *+*+, she executed a deed of gift transferring the property in the first place to t. )am Gali, the daughter of (ata (in, who was a son of her real brother. t. )am Gali remained in possession during her life. Fn her death a dispute arose between (ata (in, plaintiff *, the father, and 3ir"ish (utt, defendant *, the husband of t. )am Gali. (ata (in transferred some of his interest to the three other plaintiffs, who "oined him in instituting the suit. 3ir"ish (utt also transferred half of the property to his brother )a"endra (utt, defendant <. he plaintiffs! case was that the gift in favor of t. )am Gali was of a life interest only, and that under the terms of the gift, the property passed on her death to her father (ata (in. he defendants on the other hand contended that t. )am Gali 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 *. hey also contended in the alternative that if the gift in favor of t. )am Gali was not absolute, even then the gift over in favor of (ata (in was void by reason of the provisions of @s. * and *0, /A. he contention urged on behalf of the defendants was that the gift of a life interest to the unborn daughters of t. )am Gali was void under the provisions of @. *, . /. Act, and that the gift over to the first plaintiff was conse8uently void under @. *0 of the same Act, because he was to ta7e after or on the failure of the daughters. he learned @ubordinate Budge held that the gift conveyed to t. )am Gali only a life interest, and that the gift over to plaintiff * was not void because it was not dependent on the gift to the daughters, but was an alternative and independent gift. 3ir"ish (utt and )a"endra instituted the appeal in the High court. he main 8uestions which have been raised in arguments were: #*$ =hether the gift to t. )am Gali was an absolute gift or n ot,
#<$ =hether the plaintiffs! case falls under the provisions of @s. * and *0, /A. he 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 t. )am Gali was not an absolute gift, but a gift only of a life interest. @. *, /A 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. t is clear that the gift over in favor of the sons or grandsons of t. )am Gali 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 t. )am Gali, who were not born at the time of the transfer, was void because the transfer of the interest to them was sub"ect to the prior interest created by the same transfer in favor of t. )am Gali, 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. =here by reason of any of the rules contained in @. *.......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 ta7e effect after or upon failure of such prior interest also fails. he 8uestion referred by the (ivision ;ench for decision to the %ull ;ench was: =hether, in the circumstances set forth in our order, the gift over to (ata (in under the deed executed by t. @ugga in favor of t. )am Gali is void having regard to the provisions of @s. * and *0, . /. Act. %ollowing were contention ta7en into consideration. he relevant portion of the deed of gift relating to the gift over runs as follows: f on her #)am Gali!s$ death there be any male descendants, !whether born of son or daughter, he will be the absolute owner of the property, and if t. )am Gali may have only daughters, thay shall have no power of transfer. f, 3od forbid, there may not be any issue of t. )am Gali,
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 (ata (in, father of t. )am Gali, if he be then alive, and if (ata (in be not alive, then the person who may be living of the line of (ata (in at that time would get it.I he intention of the donor clearly was that (ata (in should get the property only in ease the gift in favor of the male4descendants and the daughters of )am Gali failed. he case therefore seems to be fully covered by the words upon failure of such prior interest. f the ta7ing effect of the subse8uent interest is dependent upon the failure of a prior interest which satisfied the other re8uirements of the section *0, we fail to see any escape from the rule laid down therein that such subse8uent interest must also fail. As we have held that the other re8uirements of the section are satisfied, and we are further of opinion that the gift in favor of (ata (in was dependent upon the failure of the prior interest in favor of the daughters, the result is that the gift in favor of (ata (in must also fail. hus issue referred by the division bench to the full bench was given an affirmative answer.
SOPHER /$ ADMINISTRATOR GENERA* OF BENGA*
n the case of @opher v Administrator 3eneral of ;engal 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 pre4deceased leaving issue living at his death. he income of each share was to be paid to each child for life and thereafter to the grand4children until they attained the age of *-, when alone the grand4children were to be absolutely entitled to the property. he be8uest to the grand4children was held to be void by /rivy Council as it was hit by sec.** of the ndian @uccession Act which corresponds to sec.* of ransfer of property Act. heir Lordships of the /rivy Council observed that: f under a be8uest in the circumstances mentioned in sec.**, 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 be8uest did not receive the interest be8ueathed in the same unfettered form as that in which the testator held it and that the be8uest to him did not therefore, comprise the whole of the remaining interest of testator in the thing be8ueathed.
ARDESHIR /$ DADABHOY
n Ardeshir V (adabhoy5s case, ( was a settler who made a settlement. According to the terms of settlement, ( was to get during life6 one4third each was to go to his sons A and ). After (5s death, the trust property was to be divided into two e8ual parts. he net income of each property was to be given to A and ) for life and after their death to the son5s of each absolutely. f A and ) were each to pre4decease ( without male issue, the trust property went to the settler absolutely. he settler then too7 power to revo7e or vary the settlement in whole or in part of his own benefit. t was held that )5s son who was not born either at the date of settlement or his death did not ta7e any vested interest and the gift to him was invalid. A5s son who was alive at these dates did not also ta7e a vested interest. FRAMRO;E DADABHOY MADON /$ TEHMINA
ehmina settled a sum of )s. >,999, representing the proceeds of sale of diverse investments, made on her behalf by her father, (adabhoy @orab"i adon, upon trusts in favor of herself, for life, and after her decease and sub"ect to a power of appointment, exercisable by will or codicil only, amongst her issue born during her lifetime6 in trust for all her children who being sons, &shall attain the age of *- or being daughters shall attain that age or marry under that age in e8ual shares.& n 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, &sub"ect to the foregoing trusts and powers&6 the trustees are to hold the trust funds in trust for the said (adabhoy @orab"i adon, his heirs, executors and assigns. hese arrangements, in favor of the issue of ;ai ehmina, have been held by the learned Budge to be void by reason of @ection * of the ransfer of /roperty Act, *--<, as have also the subse8uent 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. n coming to that conclusion the learned Budge held that the case of @opher v. Administrator 3eneral, ;engal , which is a decision of the /rivy Council upon the trusts of a will, declared to be void under @ection ** of the ndian @uccession Act, *+<1, applied, and he followed a decision of r. Bustice ;lagden in the case of Ardeshir ;aria v. (adabhoy ;aria #*+$ > ;om.
L.). <->, who also applied @opher!s case to the trusts of a settlement.
t was held by the
Lordships that the decision in the @opher5s case could not be applied to the trusts of a settlement which were transfer inter4vivos. t was held that the words Jextend to the whole of remaining interest of the transferor in the property5 in sec.13 of the ransfer of /roperty Act were directed to the extent of the sub"ect4matter and to the absolute nature of the estate conferred and not to the certainty of vesting.
REFERENCES STATUTES • •
ransfer of /roperty Act, *--< ndian @uccession Act, *+<1
CASES • • • • • •
3irish (utt V. (ata (in A) *+ Fudh Ardeshir v (adabhoy A) *+1 ;om +1 @opher V Administrator 3eneral of ;engal A) *+ /C0> %ramroK (adabhoy v ahmina + ;om L.).--< saac ?issim @ilas v. Ffficial trustee of ;engal, A) *+1> cal. **. @ubramania ?adar v. . varadhara"an, A) <99 mad 0
BOO8S •
(r. Avtar @ingh, ransfer of /roperty Act,
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(r. 3.C.;haru7a, mulla transfer of property act *--<,*9th ed., <990, Lexis ?exis ;utterworths.
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3./. ripathi, ransfer of property Act, *--<, *>th ed. <9**, Central Law /ublication, Allahabad.
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%nstitutes of )oman *aw, ranslated by Ledlie. @econd edition, , 0+. Fxford, *+9*.
OTHER SOURCES
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#*+*$ & )eal !roperty+uture %nterests+)ights of -nborn hild ,& ndiana Law Bournal:
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Vol. >: ssue <, Article -. available at: http:EEwww.repository.law.indiana.eduEil"Evol>E he Law Commission #LA= CF ?o *$ %ntestacy and amily provision laims on
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/eath available at: http:EElawcommission."ustice.gov.u7EdocsElc*MintestacyMreport.pdf http:EEwww.life.org.nKEabortionEabortionlegal7eyissuesErightsunbornchildE
