Report No. 70
21.7. Difference with section 113, Succession Act.-
The wording of section 113 speaks of the later bequest 'comprising' the whole of the remaining interest of the testator, while section 13 of the Transfer of Property Act speaks of the later transfer 'extending' to the entire interest. Even so, it can be argued that section 13 should be similarly construed. If so, the Privy Council decision in Sopher's case would apply to the Transfer of Property Act also. In fact, in a Calcutta case,1 the decision in Sopher's case was applied to a settlement, and the High Court held that trusts in favour of the grand-children, some of whom were unborn, were void as the trusts were subject to their attaining a certain age and surviving their parents.
1. Isaac Nissim v. Official Trustee of Bengal, AIR 1957 Cal 118 (Maflick, J.).
21.8. Effect of Sopher's case.-
As has been pointed out by a writer on the Law of Succession,1 the decision in Sopher's case upset the view of the legal profession which upto then held that if to an unborn person the whole of the remaining interest was given, that would be sufficient compliance with the provisions of section 13 and section 113 respectively, and the contingency of attaining majority or surviving a certain person or the conditions attached to the gift or bequest or any provision reserving power to revoke the trust, did not violate the law.
Since this view was held to be erroneous by the Privy Council in Sopher's case, there was public agitation and, in fact, a Bill was introduced in the Central Legislative Assembly2 proposing to omit section 13 and section 113. The Bill did not become law, but the Bombay Legislature passed in 1947 an Act to validate dispositions made previously on the basis of previous understanding, of the law.
1. Paruck Indian Succession Act, (1966), p. 238.
2. Transfer of Property and Successions (Amendment) Bill, 1946 (Gazette of India, Part V, p. 92, dated 16-2-1946).
21.9. The application of section 113 of Succession Act to certain dispositions of property in the erstwhile State of Bombay is restricted by the Dispositions of Property (Bombay) Validation Act, 54 of 1947 (an Act to validate certain dispositions of property in the Province of Bombay), which came into force on 16th January, 1948, as under-
"2. Application of Act forty-five-This Act shall apply to all trusts made and to all wills and other testamentary dispositions of persons who have died, before the first day of January one Thousand nine hundred and forty-five;
(a) Where such trusts, wills, or testamentary dispositions relate to immovable property situate within the Province of Bombay;
(b) Where such trusts, wills or testamentary dispositions relate to property of every description other than immovable property and are declared, executed or made by a senior or testator, as the case may be, in the Province of Bombay, notwithstanding anything to the contrary contained in Part II of the Indian Succession Act, 1925
3(1). Validation of certain disposition.- The following provisions of law shall not apply and shall be deemed never to have applied to the dispositions of property contained in or made by the instruments mentioned in section 2, namely, (a) section 13 of the Transfer of Property Act, 1882, and (b) section 113 of the Indian Succession Act, 1925.
(2) The dispositions of property contained in or made by the instruments mentioned in section 2, the enactments mentioned in the first column of the Schedule to this Act shall apply, and be deemed to have always applied, with the omissions and modifications specified in the second column of the Schedule.
4. Saving-Nothing in this Act shall be deemed to affect or prejudice in any way any right, title or interest accrued to any person under a final decree or order of a competent court or acquired by any person for valuable consideration before the coming into force of this Act."
(Schedule not reproduced).
21.10. Recommendation to repeal section 13.-
We are of the view that having regard to the fact that there is also in force the rule against perpetuities, it is not necessary that the role in section 13 should be continued on the statute book. This section seems to have been suggested by the corresponding section in the Succession Act, and the Report of the Law Commissioners relating to the Succession Act, 1865, merely states that it has been provided that the interest to be given to the unborn child must extend to the whole of the interest.
Having regard to the fact that the object of the law to prevent provisions fettering the free circulation or postponing the vesting of property is sufficiently achieved by section 14, we think that section 13 should be deleted. Even if the unborn person is allowed to take a limited interest, the subsequent interest must vest within he period allowed by section 14 and this, in our view, is enough as a safeguard.
21.11. Alternative recommendation.-
However, if it is decided not to delete the section, it is, in our view, necessary to make it clear that conditions of the nature involved in Sopher's case1 which, while not restricting the quantum of interest of the unborn person, make it defeasible or affect the certainty of its vesting,2 are not to be construed as violating section 13.
1. Sopher's case, supra.
2. This is not a draft.
21.12. Child in the womb.-
It is also necessary-if the section is retained-to add an Explanation to the effect that a child in the womb, if born alive, is not deemed to be an unborn person. Such an addition would be merely codifying the judicial construction.
21.13. Recommendations summed up.- Our recommendation then is that-
(a) Section 13 should be deleted;
(b) in the alternative, that is to say, if section 13 is retained, clarification as suggested above1 should be made on two points, namely
(i) the scope of the expression "extends to the whole of the remaining interest" should be explained; and
(ii) the case of child in the womb should be dealt with expressly.
1. Paras. 21.10 and 21.11, supra.