Table of Contents

• Abstract :
• Introduction :
• Objectives :
• Property rights
• Right of Unborn Child Under Hindu Succession Act
• Right of unborn child under muslim law in property

Abstract :

Right to life is one of the important fundamental rights given under Article 21 of the constitution of India which guarantees the Life and Liberty of every person in the Indian constitution. However, the protection of the fundamental rights of life and liberty is available only to the person who is in existence.   The person shall be in existence whether as an unborn child in the mother’s womb and/or the growing child and/or grownup person. The word unborn person has not been defined either in the transfer of property Act or under the Hindu succession Act. However, as per the Literal meaning, the word Unborn Person means “the person who has no existence at the time of the transfer of the property but may have its existence someday in future. The term unborn person also includes the Unborn Child.

Introduction :

In India, Section 5 of the Transfer of Property Act recognise the transfer of property which means conveying of the property from one or more living persons either in the present or future, to another living person. However, there is an exception provided under chapter II of the Transfer of Property Act 1882 under which the law permits the transfer of property from a living person(s) to another person including an Unborn person.

Objectives :

• To study about the rights of the unborn Person.

Unborn Person:   

The term Unborn Person is not defined under the transfer of property Act but as per meaning derived from section 13 of the Transfer of Property Act. It uses the word “benefit of a person not in existence at the time of transfer”. This means any transfer of property to a person who is not in existence on the date of the transfer of property. However, the word person is defined under Section 2(42) of the General Clauses Act under which the word PERSON shall include any company or association or body of individuals whether incorporated or not. This definition has been also recognised in Section 5 of the Transfer of Property Act wherein the same has been adopted in the definition of Living Person.

Thus the Property rights of the Unborn Person is a very wide term that includes company or association or body of individuals as well as foetus /unborn child who is more than eight weeks old.

The term unborn child means Foetus or yet-to-be-born child. As per the medical terms as recognised by the medical society, the

term foetus is generally used for an Unborn child of Eight weeks till its birth . Thus a foetus of less than Eight weeks would not be recognised a living person as explained in Section 5 of the Transfer of Property Act and thus shall be considered as an Unborn person under section 13 of the Transfer of Property Act. The term Unborn Child is only defined under section 20 of the Hindu Succession Act which is as under:

Section 20 : Right of a child in the womb which means a child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same rights to inherit to  the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate   

• Thus According to Section 20, an unborn child, will inherit only if—

(i) The child was conceived at the time of death of the property owner, and

(ii) The child is born alive

The child will inherit in the same manner as if he were born before the death of the property owner if the above conditions are met. Any child, male or female, who is in the mother’s womb at the time of the death of the property owner is considered to come into existence in the eyes of law even though the foetus is less than eight week.

Section 13: 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”.

Section 20:  When an 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.

PROPERTY RIGHTS:

As per section 13 of the Transfer of Property Act, the following are the essentials of Valid transfer of property to an Unborn person:

• An interest therein is created for the benefit of
• A person not in existence at the date of Transfer
• Subject to a prior interest created by the same transfer
• Unless it extends to the whole of the remaining interest of the transferor in the property

AN INTEREST THEREIN IS CREATED FOR THE BENEFIT OF

As per section 5 of the Transfer of property act the property can be transferred directly to a person(s) if the person is in existence. However, if the person is not in existence then the property cannot be directly transferred but can be transferred only by way of creation of a prior interest. It is because of this reasons the term used in section 13 of the Act is “For the benefit of” instead of “Transfer to an Unborn”. The term prior interest means that before the interest is created in favour of an Unborn Person, a right must be created in favour of the person who is in existence. This creation of interest

A PERSON NOT IN EXISTENCE AT THE DATE OF TRANSFER

The difference between Section 5 and 13 of the Act is that under section 5, the transferee person must be in existence while under section 13, the transferee must not be in existence at the time of the transfer of the property. The word existence means and include even the Foetus in the womb of the mother who is more than eight week old.

SUBJECT TO A PRIOR INTEREST CREATED BY THE SAME TRANSFER

It says to exchange property to an unborn person, an earlier “intrigue” must be made. There are two ways the prior interest in the property can be created i.e. either to Form a trust or by conditional transfer to a Living person. In the former case, a trustee must be selected for the advantage of the yet-to-be-conceived person but not straightforwardly or the interest must be transferred to the living person. However in this regard it is to be clear that the transfer to an unborn person may be immediately or may be subject to the conditions of the transfer but the conditions must be such which are certain to happen. Any conditions which are uncertain, the transfer would be invalid. However, it is essential that the unborn person must come into “existence” before the death of the last life estate holder. In other words, the unborn individual must appear before the passing of the last life domain holder. The term “existence” means that the unborn person in a mother’s womb even as foetus of eight week old and not necessarily, the actual birth. 

The successive life interest on the successive heirs of the unborn son i.e. creation of indefinite in the favour of successors of the Unborn person is not a valid transfer under section 13 of the Act as was held by the Hon’ble Apex court in the  matter titled F.M. Devaru Ganapati Bhat vs Prabhakar Ganapathi Bhat (AIR 1953 SC 7).

The stipulation that “In case the donor gift the property in favour of the alive person then living, and also stipulated that if other male children are later born to such living person as his/her brother, they shall be joint holders with the living person” , such a stipulation is not hit by Section 13 of the Act and creation of such a right is permissible under Section 20 of the Act as was held in the matter F.M. Devaru Ganapati Bhat vs Prabhakar Ganapathi Bhat, decided on 19^th December 2003.

UNLESS IT EXTENDS TO THE WHOLE OF THE REMAINING INTEREST OF THE TRANSFER OR IN THE PROPERTY

The term “interest” means that the complete rights in the property which the transferor has, intended to transfer in favour of the unborn person. Thus it is essential that complete rights must be transfer in one go and not in parts from the Living person or Trust to the unborn person, otherwise, the transfer will not take effect. In this regard, the illustration given in section 13 of the Act is relevant , which reads as under:

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.

 Here in this illustration since the eldest son would only get the partial rights of the survivor only (either “A” or “Intended wife of A”) and not the entire estate of “A” who was the owner of the entire property therefore the transfer to the eldest son born out of A and his intended wife would not be a valid transfer.  

It is held to be true that no interest could be created in favour 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 as was held in the matter Tagore v. Tagore [18 W.R.359].. 

RIGHT OF UNBORN CHILD UNDER HINDU SUCCESSION ACT

Section 20 of the Hindu Succession Act, 1956, manages the privileges of an unborn child and not unborn person. Thus, the word unborn child is the Foetus of any stage who is in the womb of the mother. The property privileges of an unborn person are administered, if the child  who was in the womb at the season of the demise of the individual who wants to exchange the property and who is in this way conceived alive might have an indistinguishable appropriate to acquire from in the event that he or she had been conceived before the passing of the property proprietor, and the legacy should be esteemed to vest in such a case with impact from the date of the demise of the intestate.

As per Section 20, an unborn child who has appeared will acquire just if—

(I) The youngster was considered at the season of death of the property proprietor, and

(ii) The child is conceived alive

The unborn child will acquire the interest in the property in an indistinguishable way, in the event that he/she were conceived before the demise of the property proprietor if the above conditions are met. Any male or female, who is in the mother’s womb at the time of the passing of the property proprietor is considered to appear according to law and entitled to inherit the property under this section.

RIGHT OF UNBORN PERSON UNDER MUSLIM LAW IN PROPERTY

There are no rights to the unborn Person under the Muslim Personal Law and a blessing to an unborn individual is void with the exception of in the event of Wakf.