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Transfer of property to an UNBORN CHILD
Have you ever wondered what happens when
a property is transferred to an unborn child? I thought of writing on some untouched topic for the mothers on Women's Day.
As per the Indian Law, Section 13 of Transfer of Property Act 1882 defines an unborn child as a child or a baby in its mother’s womb. A person yet to be born and does not have any existence is not counted as a living person but still a property can be transferred to him/her. Although this is a lesser known fact, it is quite prevalent in India.
I will try to make you unde rstand about the
legal status of an unborn child. Does it hold legitimacy in property transfer?
A person is a living being so an unborn child is not called a person before
he/she is born. The property law says that the unborn child can attain definite
rights and inherit the property transferred to it only when he or she is born
alive. Although the unborn child cannot be considered as a person yet his/her
rights can be vested in the hands of his/her trustees.
Unfortunately, there is always a risk of
stillbirth or miscarriage in pregnancies. What happens in that case? The Property
Act gives the right of property to an unborn child only if he or she is born
alive. By the time he/she is born, till then all the rights lay in the name of
his or her parents/trustees. But one must be aware of the conditions as well as
the prerequisites of the property transfer. It is essential to understand the
below mentioned conditions in order to transfer the property to an unborn
child:
- Absolute interest must be made in the favor of the unborn child.
- Creation of prior life interest in favor of a person who has come into existence on the transfer date.
- A property can be transferred to an unborn child only via trusts and not directly. And in absence of the trust, the property rights are created in the name of a living person and later transferred to the minor.
- Till the unborn does not come into this world, the property rights can be enjoyed by the trustee in whose name the property is vested.
- As soon as the unborn child takes birth, the property rights immediately get transferred in his/her name. Post which he or she will be the sole owner of the property.
Absolute interest is transferred to an
unborn child on the death of the life interest holder and it includes the right
of alienation. But under Section 13 of Transfer of Property Act, once the unborn
child is born and the absolute interest is transferred, the unborn child will
not be entitled to the possession of the property.
Pre-requisites for a valid transfer of
the property to the unborn child are-
In a nutshell, the TOPA (Transfer of
Property Act) does not permit transfer of property directly in favour of an
unborn person. Thus, in order to transfer a property for the benefit of a
person unborn on the date of the transfer, it is imperious that the property
must first be transferred in favour of some other person living on the date of
transfer. In other words, the property must vest in some person between the
date of the transfer and the coming into existence of the unborn person since
property cannot be transferred directly in favour of an unborn person. The
interest of the unborn person must in every case be preceded by a prior
interest.
(Adv Vedika Chaubey can be reached at
vedikachaubey@gmail.com)
