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Report No. 70

27.11. Need and significance.-

It is to be noted that section 20 is subject to a contrary intention appearing from the terms of the transfer. This section is, in substance, based on the same principle as is the basis of section 19, namely, the policy of the law of favouring the vesting of interests. The general position as to transfers in favour of living persons is the subject-matter of section 19, which obviously could not apply to unborn person since, if that section is taken literally, the vesting takes place on the execution of the transfer. Obviously, this would not be appropriate in the case of an unborn person; hence the need for a specific provision as in section 20.

Of course, section 20 applies only where there is a "transfer". Relinquishment of an interest in a joint Hindu family in favour of unborn persons is not a "transfer of property", as it is only an extinction of the interest of the person releasing it.1

1. Anjaneyulu v. Ramayya, AIR 1965 AP 177 (183), para. 17.

27.12. Rights of unborn persons.-

The fact that a person is unborn at the date of a transaction dealing with proprietary affairs which gives him no interest in the property dealt with by that transaction does not, of course, necessarily imply that the unborn person can claim no rights in the property. The position depends on the system of law by which the parties are governed. Consider, for example, the position regarding rights of sons born after partition in Hindu law.

The favoured position1 which a child in embryo thus occupies under the Hindu law in respect of partition and succession is by no means singular, for whatever may have been the law in early times, it is a rule generally adopted in mature systems of jurisprudence that a child in embryo is to be considered as born when it will be for its benefit so to be considered, although the question is not free from metaphysical difficulties whatever view we may adopt on the subject. In the Roman Law, existence was, for certain purposes, assumed to begin before birth.

Thus, although upon the authority of Ulpian2: "The fruit of the body before it is born is part of the mother or the womb," and natural capacity for rights begins with the birth of men-that is, the complete separation of a living human being from the mother-yet Paul points out the ways in which the embryo in the mother's womb is recognised by law:

"Attention is bestowed upon, that which is in the womb, just the same as if it had come to life, whenever a question arises as to the embryo's own privileges, although in no way benefiting another before it is bom."3 "Our speaking of him whose birth is anticipated as though he were in existence, is correct when the question is as to his own right."4 "The ancients paid regard to the child in the womb in such way that they maintained all rights in its favour intact until the time of birth, as may be seen in the law of inheritance."5-6

1. Kusum Kumari v. Dasarathi, AIR 1921 Cal 487 (488).

2. Dig. 15, 4, 1, 1.

3. Dig. 1, 5, 7.

4. Dig. 50, 16, 231.

5. Dig. 5, 4, 3.

6. See Markby's Jurisprudence, p. 132; Holland's Jurisprudence, p. 83; Sohm's Institutes (ledlie). Art. 20; Saving v. System, Art. 62; Mackeldy's Roman Law (Dropsic), Art. 669; Salkowaki Roman Law (Whitefield), Art. 32; Goudemit Pandects (Gould), Art. 21.

27.13. Unborn persons.-

In section 20 and subsequent sections, the expressions referring to the person not in existence should, of course, be so construed as to take into account of the legal doctrines relating to the position of a child in embryo. While the general rule that the vesting will take place on birth certainly applies, an important consequence of the legal doctrine is that, as Blackstone put it1-

"An infant in ventre semere is supposed to be born for many purposes; it is capable of having a legacy or a surrender of a copyhold estate made to it; it may have an estate assigned to it and it is enabled to have an estate limited to its use and to take afterwards by such limitation as if it were then actually born."

1. Blackstone Commentaries, Vol. 1, p. 130, cited by Mookerjee, J., in Kusum Kumari v. Dasarathi, AIR 1921 Cal 486 (490).

27.14. Impact of section 13.-

Reverting to section 20, a Mysore case under section 20 illustrates how some misunderstanding exists as to the precise meaning of section 131 and its impact on section 20. In that case the donor, by a gift deed, transferred his property in favour of A, the then living son of the donor's daughter. In the same deed he directed that the property was to be enjoyed not only by A, but also by other sons who might be born by the donor's daughter, before A attained majority. B, another son, was born before A attained majority. A, however, alienated the entire property by a sale deed, and B sued for recovery of the half share of the property and mesne profits.

The lower court rejected his claim on the ground that section 13 was infringed. Under section 13, so far as is material, where, on a transfer of property, an interest is created for the benefit of an unborn person "subject to a prior interest created by the same transfer", the interest in the unborn person must extend to the whole of the remaining interest in the property. The judgment was reversed on appeal. The High Court had to point out that section 13 had no application to the facts of the case.

There was not a limited interest followed by the creation of an interest in favour of an unborn person. The grantor in this case had transferred property in favour of two persons in the first instance, one of whom was unborn. Since, under section 20, an unborn person on birth acquires a vested interest, he had a right to challenge the transfer. If our recommendation to delete section 13 is accepted,2 such controversies will not arise.

1. Yasanthappa v. Channappa, AIR 1962 Mys 98 (99, 100).

2. See our recommendation as to section 13.

27.15. No change.- The above discussion does not involve any amendment in the section.

The Transfer of Property Act, 1882 Back

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