Author: Kritika Prakash, a student at Government Law College, Mumbai
The case of Girjesh Dutt v. Datadin was one of the most famous cases of all time in India concerning property laws. It is a landmark case concerning the Transfer of Property laws and their intricacies. The facts of the case included A, who transferred a gift of her properties to B, who was her nephew’s daughter. Consequently, it was to be transferred to any male ascendant of B. If there was no male ascendant then it was to be transferred to B’s daughter and if there was no ascendant then it was to be transferred to A’s nephew. Now, B died issueless i. e without any children and this case raised a thousand questions on legalities related to an unborn child, especially concerning property transfers.
An unborn child refers to a person who will give birth in the future. They, too, have rights and can inherit properties considering the child is born alive. Even though a child in the womb is not a person in existence, it has been so treated under both Hindu Law and English Law. Of course, there are a lot of technicalities to such a transfer. They start from Section 5 of the Transfer of Property Act, of 1882 which defines ‘Transfer of property’ stating that an act of granting property to somebody i.e. a living person presently or in the future is called transfer of property. A living person may include a person or even an association irrespective of their incorporation and this may also include companies. Thus, this section does not entail the transfer of property by will as it comes into play only when a person dies while section 5 strictly adheres to the ‘living person’ rule. However, there is an exception to this section too which consists of section 13 which defines the laws for transferring immovable property for the benefit of an unborn person.
Section 13 of the Transfer of Property Act 1882 does not allow a direct transfer to an unborn child. i.e. the person doesn’t exist currently. Hence an unborn child would not be even in a mother’s womb when the transfer is taking place and this is why a prior interest is created for the benefit of the unborn person which includes the whole of the interest of the Transferor and nothing less than that. Then, this interest is vested in somebody else i.e. the said property is transferred for the benefit of the unborn person to a Transferee who is a living person, and the interest created is vested in such a person. Simply put, the immovable property is transferred to a living person between the date of transfer and the coming into existence of an unborn child. However, it is important to note that the prior interest created in the favour of the unborn child is absolute i. and the whole of the remaining interest of the Transferor is transferred. There should be no obstruction in the free disposition of the property. If the interest is limited in any sense, then such a transfer is void. No Direct transfer, Prior interest creation, and absolute interest are all essentials of Section 13 which otherwise will be void. There’s more to such essentials and one more aspect of it states that the unborn person needs to come into existence i.e. at least should be in the mother’s womb before the last estate holder dies. All the rights are to be vested in the unborn child as soon as it comes into existence and the rights are absolute. Hence, the transfer can take place only for the unborn child and not for the issue of the unborn child.
In the case of Isaac Nissim Silas v. Official trustee of Bengal of 1931, there was a trust that was created for the benefit of the family including the settlor i.e. Silas, his wife, and two children and two unborn children that were to be born. The official trustee of Bengal was made a trustee and the trustee was to hold the property according to the trust agreement. Now, the agreement said that after provisions were made to take care of the expenditure, the property was to stay with the settlor, then his wife, and then their children equally. The remainder of the same was to be given to the unborn children of the sons that will be alive at a certain point in time and it will be subject to some restrictions. After the understanding of such an agreement, the legality of the transfer of property to an unborn child i.e. the grandchildren was questioned and it was held that such a transfer was void, especially with the lack of absoluteness.
In the case of Sopher v Administrator General of Bengal, it was agreed upon that after the death of the testator, the property is to be divided between all the living children or ones who are pre-deceased and have issues. All the income that is to be received from the property, shall be given to the children for life and till the age of 18, for grandchildren. This, again, led to the questioning of the legality of the gift of property to grandchildren and it was held that it was void as it corresponded with Section 113 of the Indian Succession Act which corresponds with Section 13 of the Transfer of Property Act.
In another similar case of Ardeshir v. Duda Bhoy, a settlor settled that one-third of his property was to be given to his sons and the income received from the same was to be given to the sons and after their death, it was to go to their sons absolutely. If the sons were pre-deceased and they did not have any male issue, then it was on the trust to decide and the settlor can revoke or change the settlement to his will. It was held at the end of this case that the grandchildren were unborn on the date of settlement and the settlor’s death, so the vested interest is invalid.
These cases helped in deciding cases of property concerning an unborn child. The case of Framroz Dadabhoy v Tahmina had an effect on the above-said cases and assisted more in setting up precedents for this law. In order to add to Section 13 of the Transfer of Property Act, Section 14 of the Transfer of Property Act talks about perpetuity i.e. an uncertain time period. The transferors usually want to keep the property to the family by making provisions for its transfer. Section 13 with its exceptions, challenges the same perpetuity and encourages free circulation of the properties as perpetuity arises in two ways i.e. either by taking away the power of alienation from the transferor or by creating a limited interest. It is important to ensure the free disposition of the property to allow commercial activities including trade, so that the property is used for the betterment of the society and for public good. But, while understanding the exceptions, it is also important to understand the legal consequences of transfers to an unborn child if such exceptions were not in place. It is a very big possibility that if absolute interest is given to a living person who holds the property before the child does, then that person may transfer the property to someone else for their own benefit. It is also a problem if an unborn child is born after the death of the transferor because then the property will be ownerless and it shouldn’t be the case even for a second, hence defeating the purpose of the agreement. In the case of Bajrang Bahadur Singh v. Thakurdin Bhaktrey Kuer, when such an agreement is made where the property is to be transferred to a series of people in queue, then the agreement doesn’t become void completely. It is valid for the people who existed at the time of the death of the settler and void for those who did not exist i.e. unborn children. As a matter of fact, previously, when the Transfer of Property Act was not enacted, the Hindu and Muslim law stated that granting property to a person who was non-existent at present, such a grant was void. After the enactment, Muslim law remained the same, and Hindu laws were added to relate to section 13 of the Transfer of Property.
Now, in the case of Girjesh Dutt v. Datadin, it was brought to notice that by making an agreement to grant property to B’s daughter who was not in existence at present. Such an agreement was contrary to the laws in Section 13 of the Transfer of Property Act 1882. It also creates a limited interest in the favor of the unborn child. Hence, the Apex court held that the gift rendered to B was valid as B was living at the time of such an agreement but the gift made in favor of B’s children was rendered void due to the limited interest.
FREQUENTLY ASKED QUESTIONS
What is section 113 of the Indian Succession Act, 1925?
Whena bequest is made to a person who is not existing as of now, then such a bequest is void if it does not include the whole of the remaining interest of the testator. This section corresponds to section 12 of the Transfer of Property Act.
