Introduction

The term ‘property’ in its basic sense means anything which is owned by an individual and over which that individual has the right of ownership and/or possession.
The property is of two type i.e., 'Moveable' and 'Immovable' Here in this newsletter we will discuss about the rights of an unborn child in immovable property.
As mentioned in section 5 of the Transfer of Property Act (TPA) an immovable property can be transferred by a living person to a living person only but in section 13 an exception has been made in which it is stated that that a property can be transferred by a living person to a person who has not been born yet,i.e., to an unborn child.

SECTION 13 OF TRANSFER OF PROPERTY ACT

The section 13 is an exception to section 5 of the act as this section allows the transfer of property to a person who hasn't been born yet on the contrary of section 5 in which it is clearly written that the transfer can only be made between living persons only.

In law a child in mother's womb is in many purpose is regarded as legal fiction as already be born; this believe is supported by a legal maxim "nasciturus pro jam natohabetur” ,which means that the legal capacity of the natus (post born) is determined by referring back to a time when he was still nasciturus (unborn) but present in womb" as we know that property can be transferred to unborn child but it is provided that the property will be transferred only to the child in the womb and not to the child not in womb

LEGAL STATUS AND RIGHTS OF AN UNBORN CHILD

An unborn child is said to be a legal person post his/her birth. As per property law an unborn child can attain his right in the property if he/she is born alive; although an unborn child do not know how to handle is rights so his/ her rights can be vested with his parents/ trustees. The proposition of child enventresai.e. the child in womb mere under the property act gives the right on 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

PRE-REQUISITES OF TRANSFER OF PROPERTY

The property can only be transferred to an unborn child if the following pre-requisites are fulfilled –

• Transfer no direct transfer to unborn all the transfer will be done through a trust
• Before death of last estate holder the unborn person should come into existence before the death of last estate holder he/she should either born or should get conceived before the death of last estate holder
• Immediate transfer of rights the rights of the person should be transferred to him/her immediately after he/she is born. he she should be made an absolute owner of the property.