A bequest to unborn person, is void in Hindu Law. How far has this maxim of pure Hindu Law been modified by statute ?

Ans. Bequest to unborn person.—Under pure Hindu Law a bequest in favour of a person not in existence at the death of the testator was invalid. A child in the mother’s womb and son adopted by a widow after the death of her husband are in contemplation of law in existence at the death of the testator. But this rule has been altered by three statutes, namely, the Hindu Transfers and Bequests Act, 1914, the Hindu Disposition of Property Act, 1916, and the Hindu Transfers and Bequests (City of Madras) Act, 1921. These apply mutatis mutandis to wills as they apply to gifts. It provides subject to the limitations and provisions contained in Chapter TI and Sections 113, 114, 115 and 116 of the Indian Succession Act, 1925, a bequest shall be invalid by reason only that any person for whose benefit it may have been made was not born at the date of the testator’s death. The rule as to the invalidity of gift or bequest to an unborn person still applies to cases to which the said Acts do not apply. Under the general Hindu Law there can be no bequest to an unborn person. fKanthaswamni Pillai v. Sivarama Pillai (1960) 60 Kerala 1961. Under the pure Hindu law a bequest to an unborn peron or persons, not existing, in contemplation of law is void. In a case a joint bequest by A and B was made in favour of the daughters of B subject to the defeasance on sons being born to B before his death. A son was born to B before his death. Held that upon his death there is no valid bequest to daughters but there is intestacy and Hindu Succession Act shall apply. Therefore the son would not take under the will because he was unborn at the death ofA. 1Raman Nadarv.s. Rasalamma, AIR 1970 SC 17591. According to section 13 of the Transfer of Property Act, where, on a transfer of property an interest therein is created for the benefit of a person not in existence at the date of transfer subject to a prior interest created by the same transfer, the interest created for the benefit of such person. shall not take effect, unless it extends to the e of the remaining interest of the transferor in the property.

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