Title: “Under the Transfer of property act property can be transferred to a child in mother’s womb”.
Abstract
This paper focuses mainly on the transfer of property act & how property can be transferred to a child in mother’s womb. A crucial challenge is therefore to identify the factors related to this issue in which property can be transferred to a child in mother’s womb. The objective of this research paper was to determine how property can be transferred to a child in mother’s womb under law of property transfer. This paper also tried to find out the ultimate logics behind this comment.
My hypothesis in some cases was proved to be true and in other cases proved false. Considering all these factors finally I came to the conclusion that under the Transfer of property act property can be transferred to a child in mother’s womb. But as researchers correlated scores on IQ and personality tests, they found only a modest and moderate relationship that did not differentiate both side of this comment.
Keywords:Transfer of property, Mother’s womb, unborn child, Life interest, Property act, Legal existence.
INTRODUCTION
Every person is able to contract and entitled to transferable property, or permitted to dispose of transferable property not his own, is able to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
On a transfer of property, an interest is created there for the benefit of a person not in the 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.
Where, on a transfer of property, an interest therein is created absolutely in favor of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner; he shall be entitled to receive and dispose of such interest as if there were no such direction.
Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.
UNBORN PERSON
A person who does not have any current existence but has a specific reference to one & who may be born in the future is considered as unborn child/person. Even thought a child in mother’s womb is simply not a person in existence, but has been treated as a person under both Hindu Law and English Law. Therefore, it should be noted that the term ‘unborn’, refers not only to those, who might have been perceived but not yet born, i.e. a child in womb, but also includes those who are not even perceived. Whether they will be born at all or not is all possibility, but a transfer of property is admissible to be effected for their benefit.
TRANSFER FOR THE BENEFIT OF UNBORN PERSON
Section 13 covers a specific mechanism for transferring property validly for the benefit of unborn persons. The procedure as follows:
01. The person intending to transfer the property for the benefit of an unborn person should first create a life estate in favor of a living person and after it, an absolute estate in favor of the unborn person.
02. Till the person, in whose favor a life interest is created is alive, he would hold the possession of the property, enjoy its usufruct i.e. enjoyment the property.
03. During his lifetime if the person, (who on the day of creation of the life estate was unborn) is born, the title of the property would immediately vest in him, but he will get the possession of the property only on the death of the life holder.
TRANSFER IN FAVOR OF UNBORN CHILD
Section 13 of Transfer of property Act read as follows:
Section 13 has an intimate effect on the general rule that a transfer can be affected only to those who have the legal existence in the universe. There cannot be a direct transfer to a person who has no legal existence or is unborn. This is why section 13 uses the expression transfer ‘for the benefit of’ and not transfer ‘to’ unborn person. A child in the mother’s womb is considered to be enough able transferee. Therefore, the property can be transferred to a child in mother’s womb because the child exists at that time but not to an unborn person who does not even exist in mother’s womb. Every transfer of property is involved with the transfer of interest. As early as the property is transferred, the transferor is deprived of that interest and the interest belongs to the transferee. For belongings of interest, it is necessary that the transferee must be in legally existence. Otherwise the interest will remain being inactive till the transferee comes into existence. This is against the very concept of an interest.
Section 13 assumes that the property cannot be transferred directly to an unborn person but it can be transferred for achieving certain benefit of an unborn person. For transfer of property for the benefit of unborn person there are two conditions to be fulfilled:
01. Prior life interest must be created in favor of a person in existence at the date of transfer, and
02. Absolute interest must be transferred in favor of unborn person.
CREATING PRIOR LIFE INTEREST
As far as creating prior life interest is concerned, first, the property is given to a living person for life. It is not concern that life interest should be there in favor of only one living person. The transfer is able to create successive life interests in favor of different living persons at the same time.
For EXAMPLE, A transfer of a property to B for life, and after him, to C, and then to D again for their lives and then absolutely to B’s unborn child UB.
A ———————————B (life interest)
———————————-C (life interest)
———————————-D (life interest)
———————————-UB (Absolute interest)
After B’s death, C will take the possession and on C’s death, D will take the possession. In case of D’s death, B’s child will take the possession, which should have come in existence by this time. If he is not there, the property would be taken back to A, if he is alive, otherwise to his heirs.
NO LIFE INTEREST FOR AN UNBORN PERSON
As far as the unborn is concerned, no life interest can be created for the benefit of an unborn person. Section 13, particularly prohibits that, by the use of the expression, ‘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.
It means that the transfer must support to the unborn person, whatever interest he/she had in the property, without holding anything with him. Hence, no limited estate can be advised for the benefit of the unborn person. If the property is settled for him with limited interest, the same would be void.
For example, A creates a life estate in favor of his friends B, and a life estate for the benefit of B’s unborn first child UB1 and then absolutely to B’s second child UB2.
A ———————– B (Life interest)
———————– UB1 (Life interest)
———————– UB2 (Absolute interest)
In second figure there is a limited interest in the property for the benefit of an unborn person and therefore it would be void and unable to take effect in law. After the death of B, here, the property would revert back to A or his heirs as the case may be, as even though the transfer for the benefit of UB2 appears to be proper, as it is dependent on a void transfer that cannot take effect in law; a transfer subsequent to, or dependent on a void transfer can also not take effect.
In this situation where a father give a life interest in his properties to his son and then to his unborn child absolutely, it will held that the settlement is valid. But where the interest in favor of the unborn child was a life interest the settlement would be void, and a later interest would also fail. Similarly, where there is a probability of the interest in favor of the unborn child being failed either by a contingency or by a clause of failure, it would not be a commitment of the whole interest, and therefore would be void.
ASSESSMENT OF VALIDITY BY THE LANGUAGE OF DEED & NOT BY ACTUAL EVENTS
In the above example, in figure (ii), suppose UB1 dies before B and UB2 is alive when the life estate in favor of B comes to an end. Even then, there will not be any effect of the transfer of the benefit of UB2 as the validity of the transfer has to be assessed from the language of the document and not with respect to probable or actual events that may take place in future. It is the substance of the transfer that will determine whether it is allowable under the law.
DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW
Under Indian law, the estate created for the benefit of the unborn child cannot take effect unless it extends to the whole interest in the properties, subject to the creation of a prior interest in favor of a living being. Only an absolute interest can be granted to an unborn child. If a limited interest is created, the transfer for the unborn would be void. Under English law, however, a limited interest can be created in favor of an unborn child, but not later to that. Consider the example given before, A creates a life interest in favor of his friend B and on his death, to his unborn son UB1 for life, and then to B’s unborn grandson UB2 absolutely.
A——————– B (Life interest)
———————- UB1 (Life interest)
———————– UB2 (Absolute interest)
This transfer would be valid under English law but would fail under Indian law in favor of unborn son UB1, due to sec.13 and in favor of unborn grandsonUB2, due to sec.16 of TPA.
RULE UNDER MUSLIM LAW AND HINDU LAW
Prior to the legislation of the TP Act, the rule under Hindu and Muslim law was that a gift to a person, who had no existence, was void. The position under Muslim law continues to be the same. However, for Hindus, the rule was modified by series of legislation to bring it correspondence with sec.13 of the TP Act. Parallel provisions have also been provided under Indian Succession Act 1925, which allows commitment for the benefit of unborn person.
DECISIONS WHETHER A CHILD IN MOTHER’S WOMD IS A PERSON OR NOT
To decide whether a child in the in mother’s womb can be called as a person, it is relevant to discuss different stages of birth of a child in a mother’s womb. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until proposition occurs. It is called an ‘egg’ from one week to the end of the second month and later it is called ‘fetus’.
It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets added, but physically a mother can feel the movement of child only when the fetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the fetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy.
An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual's body: concealed on his person'. Therefore, human fetus to which could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day.
IN THE SAME JUDGEMENT, IT IS DISCUSSED AS FOLLOWS:
The rights of an unborn child are well recognized in various different legal contexts which are as under:-
01. Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the declaration is, at the time from which the prescribed period is to be accounted, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:
"Explanation: -- For the purposes of this section, 'minor' includes a child in the womb."
02. Section 20 of the Hindu Succession Act, 1956 recognizes the rights of a child in the womb. Section 20 reads thus: Right of child in womb: 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 right 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."
03. Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus: "It is by fiction or indulgence of the law that the rights of a child born just are regarded by reference to the moment of conception and not of birth. The child in embryo is treated as in ease for various purposes when it is for his benefit to be so treated.
04. In the Indian Succession Act, 1925, 'minor' is defined under Section 2(e), which reads as follows: "Section (2)(e) "minor" means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person;"
05. Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property a MAC.APP.No.602/2009 Page 16 of 40 interests therein is created for an unborn person, he acquires on his birth, a vested interest.
06. Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc.
07. In Moore v. Wing field, (1903) 2 Ch. 411, Justice Vaughan Williams L.J. held: "In Blackstone's Commentaries, 4th ed. vol.i. 129, 130, it is stated that in contemplation of law life begins as soon as an infant is able to stir in the mother's womb: "For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child death in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter." Then the learned author goes on: "An infant in ventures mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it.
08. In Aswini Kumar Pan v. Parimal Debi, AIR1964Cal354, a question arose whether a posthumous son, within three years of his attaining majority, could challenge an alienation made by his widowed mother. Holding in the affirmative, it was held: We put it on the short ground that, in law, a child in the mother's womb is deemed to be in existence, at least for purposes of inheritance, which alone are relevant here, and has thus a right to challenge any transaction, which affects its interest at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid, cannot, under the Indian Majority Act, be held to be a major, it must be held to be a minor, that is, a person, suffering from disability, as contemplated in the aforesaid Section 6 of the Indian Limitation Act.
09. Black's Law Dictionary refers to "rights of unborn child", thus: "The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a fetus (Cal. Penal Code Section187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a legal action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death.
CONCLUSION
A life holder enjoys the property for his life only. He cannot transfer it to anyone. On his death, the property, the property goes back to the settler or to anyone else, that the settler may direct. Private property is essential for a free nation. It gives meaning to the concept of freedom. It clarifies the libertarian principles of justice.
A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: "The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that a child en ventures mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities." The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.
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