Gifts to unborn persons were not recognised by the traditional Hindu law. This rule still holds good, except in cases covered by any of the three following Acts, viz.,
1. The Hindu Transfers and Bequests Act, 1914.
ADVERTISEMENTS:
2. The Hindu Disposition of Property Act, 1916.
3. The Hindu Transfer and Bequests (State of Madras) Act. 1921.
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These three Acts have modified the provisions of the traditional Hindu law, by providing that no gift will be invalid only because the persons for whose benefit the gift has been made were not born at the date of the gift.
ADVERTISEMENTS:
This altered rule regarding gifts to unborn persons applies to the following cases of transfers:
1. Transfers executed on or after 14th February, 1914, by Hindus domiciled in the State of Tamil Nadu. As regards transfers executed before that date, the rule applies to such of the dispositions as are intended to come into operation after the commencement of the Hindu Transfers and Bequests Act, 1914.
2. Transfers executed on or after 20th September, 1916, by Hindus in any part of India, except in the State of Tamil Nadu.
3. Transfers executed on or after March, 1921, by Hindus domiciled within the limits of the ordinary original civil jurisdiction of the High Court of Tamil Nadu. In case of transfers executed before that date, the altered rule would apply to such of the dispositions as are intended to come into operation subsequent to 14th February, 1914.
ADVERTISEMENTS:
However, even this altered rule is now subject to the provisions contained in the Chapter II of the Transfer of Property Act. These provisions may be summed up in the following four propositions :
(a) If the gift made to an unborn person is preceded by a prior disposition, the gift should be of the whole residue.
(b) The gift must not contravene the rule against perpetuities laid down in S. 14 of the Transfer of Property Act.
(c) If the gift is given to a class of persons with regard to some of whom it is void (under Rule 1 or Rule 2 above), the gift will fail with regard to such persons only, and not in regard to all such persons.
(d) If the gift to an unborn person is void under Rule 1 or Rule 2 above, any gift intended to take effect after such gift, will also be void.