Anticipated Lives And Legal Rights - Unpacking Property Law For The Unborn
Author: LawSphereX
Category: Property & Real Estate
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ANTICIPATED LIVES AND LEGAL RIGHTS: UNPACKING
PROPERTY LAW FOR THE UNBORN Archisha Warrier, O.P. Jindal Global University I.
INTRODUCTION
The evolution of human life from Australopithecus afarensis to the current stature of Homo sapiens happened over a long period of time. The innate ability of human beings to construct their own world has been remarkable. With the changes in science and the rapid advances in technology, we are constructing broader terms of legality. There are two things in the world that for sure will happen in a person’s life- birth and death. These questions are too controversial in nature and really have no conclusive answer. The question of when exactly a child acquires legal rights is one of the greatest curiosities in life. The debate starts with trying to define the ambiguous term of “personhood”. When does a person start to acquire legal rights? Can an unborn person be called a “person” so as to have legal rights?
The evolving jurisprudence around these questions makes it arduous to piecetogether a single definition. The Transfer of Property Act1 recognizes the existence of the unborn. Section 52 of the Act purports that the transfer of property act deals with only transfers inter vivos. The complexity arises when Section 133 of the Act states that property can be transferred for the benefit of an unborn person. This is the beginning of the complex nature of this provision. The objective of this research paper is to understand the intricacies of the aspect of “unborn person” as laid out in the TPA. The paper seeks to address the major lacunae regarding transfer of property for the benefit of an unborn person. The paper also seeks to understand the contemporary nature of the jurisprudence of the provisions related to the unborn and how it sways with the changes in the notions of society.
1 Transfer of Property Act 1882 (hereinafter, TPA).
2 Transfer of Property Act 1882, s 5.
3 Transfer of Property Act 1882, s 13.
The research paper will start with defining an “unborn person”. The paper will then turn on to analyse the relevant provisions in the TPA and how and if it conflicts with personal laws. The next part of the paper will try to differentiate between terms often used interchangeably- “not born” and “unborn” and the importance of the same. The next part will focus on the conflicts between the TPA and other specific provisions and its ambiguous nature. Finally, the paper will point out the lacunae in these provisions and will try to strategize a way forward. II.
DEFINING “UNBORN PERSON”
An unborn child in a layman sense means a child that is not yet born but may be born in the future. Under the TPA an unborn person means a child who is not in existence presently but who is expected to be born subsequently. 4 5 Under the TPA, a transfer of property can be made for the benefit of an unborn child who is not even conceived at that point in time. 6 There is a possibility that the unborn person might not be born at all. However, property can be affected to be transferred for their benefit regardless of this possibility. It is integral to note that the TPA act is quite ambiguous on these provisions and does not expressly define the term. The courts in India have recognized the legal fiction of child en ventre sa mere in cases of succession.
7 The Indian Succession Act 8 clearly recognizes the importance of setting out the circumstances in which an unborn can ask for their rights. Section 27 (c)9 sets forth that there is no distinction between one who was born during the lifetime of the deceased and one who was conceived at the date of death and was subsequently born alive for the purposes of succession. Section 50 (1)10 lays out the general principles for interstate succession for Parsis. The provision reiterates the same as that of Section 27 (c)11. Section 9912 lays out the meaning of certain expressions/words for the purposes of constructing a will. Section 99 (i)13 states that
4 ibid.
5 T. Eeshitha Rasamayi , ‘Transfer of Property to an Unborn Person’ The Law Gurukul (30 Aug
2022) accessed on 1 Nov 2024
6 Transfer of Property Act 1882, s 13.
7 Dev G, ‘Property Law and Unborn
The Legal Fiction and The Property Rights’ https://ijlsi.com/wpcontent/uploads/Property-Law-and-Unborn-The-Legal-Fiction-and-The-Property-Rights.pdf> accessed 2 Nov
8 Indian Succession Act 1925 (hereinafter, ISA).
9 Indian Succession Act 1925, s 27 (c).
10 Indian Succession Act 1925, s 50 (1).
11 Indian Succession Act 1925, s 27 (c).
12 Indian Succession Act 1925, s 99.
13 Indian Succession Act 1925, s 99 (i).
all words which are expressions indicative of relationship applies also to child in the womb who is subsequently born alive. Section 416 of the Code of Criminal Procedure14 envisages that if a woman sentenced to capital punishment is found to be pregnant, then the High Court must mandatorily commute that sentence to imprisonment for life. The CrPC is a prime example of how an “unborn” who is in the womb of the mother is a separate life and requires protection of the State. Clearly, taking away the life of a convict who is pregnant would be against public policy. Section 6 of the Limitation Act15 lays out that a person who is otherwise entitled to institute a suit or application for the execution of a decree can do so even if he/she/they are a minor or insane once this legal disability is overcome. The Explanation of this provision provides that minor also includes a child in the womb.
In all these statutes, an “unborn person” is a person who is, at the time of the death of the deceased, in the womb of the mother and then subsequently born alive. This can be differentiated with the TPA where an “unborn” also means one who was not even conceived at that point of time. III.
TRANSFER OF PROPERTY TO AN “UNBORN PERSON”
1. LEGAL PROVISIONS UNDER TPA
1.1 Section 1316
This provision states that there can be a transfer of property for the benefit of an unborn person who is not in existence at the time of the transfer of property but who is subsequently born alive and who is vested with absolute interest on birth.17 This means that this Section is not in contravention of the inter vivos principle outlines by Section
518 because the life interest of property is made in favour of a living person who will
then subsequently transfer the property to the unborn when she/she/they take birth.
14 Code of Criminal Procedure 1973, s 416.
15 Limitation Act 1963, s 6.
16 Transfer of Property Act 1882, s 13.
17 Bhatia SK, ‘Transfer of Property to a Child in a Mother’s Womb’ (SCC Times, 1 October 2021)
accessed 12 November 2024
18 Transfer of Property Act 1882, s 5.
However, the right to possession would only be acquired once the prior interest’s life interest ceases to exist.
1.2 Section 1419
The word “perpetuity” is defined by Lewis is that it is “a future limitation, whether executory or by way of remainder, and of either real or personal property which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests”.20 This would render the property inalienable for a long period of time which is against the very nature of the Act. 1.3.Section 2021: This provision makes it clear that unless there arises a contrary intention, an unborn acquires vested interest on the property upon birth even though enjoyment may not be immediately entitled.
2. JURISPRUDENCE
Salmond propounded that “the rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being”. He believed that the unborn does possess some legal rights. He emphasized that the law of property recognizes the fiction that a child en ventre sa mere is a “person”.22 It is clear from Hindu jurists, that Hindu law has always recognized the legal rights of a child in the womb23. Mayne’s Hindu Law elaborates on the right of a son in his mother’s womb at the time of partition and subsequently born alive to reopen the partition and to receive a share equal to that of his brothers.24 The Hindu Succession Act25 also envisions the same principle
19 Transfer of Property Act 1882, s 14.
20 Bhatia SK, ‘Transfer of Property to a Child in a Mother’s Womb’ (SCC Times, 1 October 2021)
accessed 12 November 2024
21 Transfer of Property Act 1882, s 20.
22 Salmond JW, Salmond on Jurisprudence (Sweet & Maxwell 1957).
23 V. Krishnan v G. Rajan alias Madipu Rajan 1993 SCC OnLine Mad 374.
24 Salmond JW, Salmond on Jurisprudence (Sweet & Maxwell 1957).
25 Hindu Succession Act 1956, s 20.
and recognizes the legal right of a child in the womb. Section 13 is not applicable to Muslim law. A gift in favour of an unborn person is not valid under the Islamic Law.26 IV.
INTERPRETING THE TERMS “NOT BORN” AND “UNBORN”
The terms “unborn” and “not born” are quite interchangeably used by academicians. These terms are quite different in their interpretative meaning, and this has been cleared by recent judgements. It is important to note that Section 1327 comes into the limelight only when the transfer of property is for the benefit of an unborn person. The claim in F. M. Devaru Ganapati Bhat vs Prabhakar Ganapathi Bhat28 was over a gift deed which was executed by the younger sister of the father of the appellants (A). A was a minor at the time and the Respondent (R) was not born. The dispute in this case is with regard to one gifted property. The central claim of the judgement is with regard to the interpretation of the gift deed. Here, A is claiming that he had absolute ownership of property survey No.
306, arguing that he held exclusive rights to it, especially since his brother R was not born at the time of the deed's execution. The second question that the court answered is the “validity of creation of interest in the property in question in favour of R in view of Section 13 of the Act”. 29 The contention of A is that since the owner had not created an absolute interest for the entire property in contention for the benefit of the R who was an unborn child and therefore, the gift deed was invalid. The Lordships in this case adjudicated that Section 1330 has no application in this case because the interest was transferred to a living person (A) and not an unborn and that is permissible under Section 2031. This case was relied on by the judges in Sridhar vs N. Revanna32. Here also, one of the issues was whether Section 13 can be applied to the facts.
The brief facts are that, Muniswamappa gifted property to his grandson, Revanna (Defendant, D), in 1957 with restrictions against Tripathi A and Panday A (Analysis on transfer of property to an unborn child) accessed 12 November 2024.
27 Transfer of Property Act 1882, s 13.
28 F.M. Devaru Ganapati Bhat vs Prabhakar Ganapathi Bhat AIR 2004 SC 2665.
29 ibid.
30 Transfer of Property Act 1882, s 13.
31 Transfer of Property Act 1882, s 20.
32 Sridhar vs N. Revanna AIR 2020 SC 824.
selling it. Despite this, D later sold parts to third parties. Plaintiffs (P) contested the sale, arguing the restriction’s validity. The court here ruled that Section 13 cannot be applied to this factual matrix as the primary transfer was in favour of a living person. The court also stated that the conditions that were put were for the younger brothers or their male children who will be subsequently born. The court reasoned that, “The condition put on person unborn is entirely different from execution of gift deed in favour of a person who is not born”. 33 From the discussion above, it is understood that the fulcrum of realizing whether Section 13 can be applied in each factual matrix is dependent upon differentiating these two terms.
Interpretation of the above two judgements, the differentiation lies forthwith that “unborn” means one who is not yet born but is anticipated to be born and for whose benefit property can be transferred at that point of time. In the case of “not born” the reference is to the nonexistence of certain persons at that point of time and for whom there is no implied intention to create a future interest in property. They are only potential joint-holders but, it is not for their benefit directly an interest is created. In Sridhar vs N. Revanna34 “not born” was used to describe the younger brothers and future male descendants mentioned in the gift deed. V.
CONFLICT BETWEEN TPA AND PERSONAL LAWS
If there is a conflict between the TPA and any other provision, the TPA takes a step back. This section aims to understand certain circumstances where the TPA will take a step back when it is in direct conflict with any other specific statute. Section 2535 of HSA provides that a person who commits or abets the commission of murder is disqualified to inherit the property of the person who he/she/they murdered in furtherance of succession. There is a clear legislative intent to bar a murderer from inheriting property as to prevent wrongdoers from benefiting from their wrongful actions, rooted in the legal principle that "no person should profit from their own wrongdoing" (ex turpi causa non oritur actio). Section 13 does not put a moral bias on the of the beneficiary's parent (the murderer's status).
However, since Section 25 disinherits a murderer, his/her/their descendants will not be able to inherit property. Hence, they will not be able to take the benefit from Section 13. There are no
33 ibid.
34 Sridhar vs N. Revanna AIR 2020 SC 824.
35 Hindu Succession Act 1956, s 25.
judicial precedents on this count to address this issue and lack of research, especially on the property rights of children whose parents are convicts, makes it even more difficult to address. VI.
CONCLUSION
AND WAY FROWARD The legal landscape of the property rights of an “unborn” under the TPA is complex. This research has delved into the intricacies of defining who an “unborn” is under the TPA and across different specific laws. The paper also analyzed the interpretation of “not born” and “unborn” which are used interchangeably and its relevancy in understanding the entire idea of property transfer for the benefit of the “unborn”. The conflict between the TPA and other laws, such as the Hindu Succession Act (HSA), underscores the intricate balance needed between honoring individual rights and upholding moral standards within the legal framework. While the TPA allows for property transfers to unborn individuals, personal laws like the HSA introduce constraints that disqualify certain individuals from inheritance, reflecting society’s moral codes.
To address these issues, it is important to have clear legislative amendments to the TPA primarily defining these ambiguities. Moreover, it is also pertinent to bring about a harmonization of property and the succession laws so that the rights of innocent descendants are protected while preventing wrongdoers from benefiting indirectly.