The Transfer of Property Act clearly states under section 13 that deals with the transfer of property to an unborn child. A person yet to be born is non-existent and is not counted as a living person still, the property can be transferred to the baby. A child in its mother’s womb is regarded by legal fiction as already born. According to the maxim ‘nasciturus pro jam nato habetur’, which means the legal capacity of the ‘natus’ (post-birth), is determined by referring back to a time when he was still ‘nasciturus’ (unborn) but present in the womb.
According to the property law, if the child is born alive then he/she can acquire specific rights and inherit property only. Although the unborn child cannot be regarded as a person, his or her rights can be vested in his/her trustees.
Now here are some essentials of Section 13.
No Direct Transfer:
- A transfer cannot be made directly to an unborn. Such a transfer can only be made by the machinery of trusts.
- It is a fundamental principle of the English Common Law, that any disposition of land considered to produce abeyance of ownership is void.
- Accordingly, if a transfer was made directly to an unborn person, there would be abeyance of ownership from the date of transfer till the coming into existence of the unborn person.
- In case a trust is not created, the estate must vest interest in some person between the date of the transfer and the coming into existence of the unborn person.
- In other words, the interest in favour of an unborn person must always be led by a prior interest in favour of a living person.
- The entire property must be transferred to the unborn person.
- It is not permissible to confer a life interest on an unborn person.
In Girish Dutt v. Data Din, ‘A’ made a gift of her property to ‘B’ for her life and then to her son absolute. B had no child on the date of execution of the gift. The deed further provided that in case B had only daughters, then the property would go to such daughters but only for their life. In case B had no child so after the death of B, the property was to go absolutely to X. The deed on the paper provided a life estate in favour of B’s unborn daughters: which is contrary to the rule of Sec.13. However, B died without any child, and X claimed the property under the gift deed. The court held that where a transfer in favour of a person or his benefit is void under sec.13, any transfer contained in the same deed and intended to take effect or upon failure of such prior transfer is also void. In determining whether the transfer is in violation of sec.13, regard has to be made with respect to the contents of the deed and not what happened actually. Here as the transfer stipulated in the contract that was void, the transfer in favour of X also became void. Hence, X’s claim was defeated.
It is pertinent to mention that there are some legal consequences for transfer to an unborn child.
- The intermediary person living at the date of the transfer is to be assumed only life interest. He has to preserve the property like a trustee during his lifetime on behalf of the unborn. If absolute interest is given to this living person, he may be entitled to dispose of to anyone. If he holds it, the property after his death shall go to his legal heir and not to the unborn for whose ultimate benefit the disposition was made.
- The unborn must come into existence before the death of the person holding property for life. If the unborn comes into existence say, after one month after the death of the last living person (i.e. after the termination of the preceding interest), the property is to revert back to the transferor or his legal heirs. This is apparent because, after the termination of the life interest, it cannot remain in abeyance and cannot wait even for a moment for the next person to come into existence.
- For instance, A transfers property of which he is the owner to B and his future 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. Here, the successive life interests in favour of B and his intended wife is a valid transfer. But the eldest son of the intended marriage who is unborn has been given the property only for life and not an absolute interest. Therefore, the transfer in his favour is void and does not take effect.
Therefore, Section 13 provides that the property cannot transfer directly to an unborn person but can be transferred for the benefit of an unborn person. For transfer of property for the benefit of the unborn person two conditions are required to be fulfilled: Prior life interest must be created but not for an indefinite period in favour of a person in existence at the date of transfer, and absolute interest must be transferred in favour of the unborn person.
- Real property future interest-rights of unborn child, Indiana Law Journal 1931
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