Concept of Bequest to Unborn or Non-Existing Persons Under the Indian Succession Act, 1925

Author: Harshi Patodia
Student, KES’ Shri. Jayantilal H. Patel Law College

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3 Key Takeaways:

The Living Bridge Requirement: Property cannot be given directly to an unborn person; it must first vest in a living person (via a life interest) who acts as a temporary placeholder.
Absolute Ownership is Mandatory: When the unborn person eventually inherits the property, they must be given the “whole remaining interest” with no conditions or limitations attached.
The Rule Against Perpetuity & The Domino Effect: A testator cannot control property indefinitely; vesting cannot be delayed beyond the lifetime of a living person plus the minority (18 years) of the unborn beneficiary. If a primary gift fails these rules, all subsequent gifts attached to it fail automatically.

Abstract

This article explores the legal framework governing testamentary succession to unborn persons under Sections 112 to 116 of the Indian Succession Act, 1925. It examines the fundamental tension between a testator’s desire to keep property within their bloodline across future generations and the law’s mandate against tying up assets in a perpetual state of suspended ownership. By analyzing statutory provisions—including the necessity of a prior life interest, the mandatory transfer of the absolute remaining interest, and the strict mathematical limits of the rule against perpetuity—the text elucidates how bequests to non-existent entities are strictly regulated. Furthermore, it discusses the severability of class gifts and the “domino effect” of void bequests, supported by an analysis of foundational judicial precedents such as Tagore v. Tagore and Sopher v. Administrator-General of Bengal.

Introduction

The right to dispose of one’s property after death is a fundamental aspect of property law, which is governed by the laws of testamentary succession. Under Section 2(h) of the Indian Succession Act, 1925, a will is defined as the legal declaration of the intention of a testator with respect to their property, which they desire to be carried into effect after their death. Anyone who is capable of holding property can be named as a beneficiary.

However, in the realm of succession law, bequeathing property to someone who does not exist—for example, a grandfather wanting to leave a property to his unborn grandchild—creates legal friction. A bequest to a non-existent person fails because property cannot be left in a state of suspended ownership. This is a balancing act. On one hand, the law respects the ultimate wish of the testator to provide for their future bloodline, but it also fundamentally opposes tying up property in a state of limbo.

Sections 112 to 116 of the Indian Succession Act, 1925, deal with how this friction can be resolved. By exploring these provisions, we will understand exactly how and when a bequest to an unborn person is valid, and how the law strictly regulates the extent to which property can be legally “tied up” for future generations.

Section 112: Bequest to a person by particular description, who is not in existence at testator’s death

Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void. Exception: If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.

This section lays down the foundational rule regarding beneficiaries who are not alive when the will takes effect. The core meaning is that you cannot leave property directly to a void or an empty space. If a testator makes a bequest to a person using a specific description such as “to my eldest granddaughter,” “to my sister’s firstborn,” or “to the future CEO of my company,” and there is no person fitting the description given at the time of the testator’s death, the bequest becomes void.

The law evaluates the will at the exact moment the testator passes away. If the described person does not exist to step forward and claim the bequest at that time, the law will not wait around for them to appear. For instance, even if a grandson is born two years after the testator’s death, he cannot claim the property. The bequest already failed the moment the testator died without the grandson being in existence. When this happens, the property either falls into the “residue” of the estate or is distributed according to the standard rules of intestate succession, as if that specific clause in the will had never been written.

Section 113: Bequest to a person not in existence at testator’s death subject to prior bequest

Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

While Section 112 strictly forbids leaving property directly to an empty space, Section 113 provides the legal machinery to do so indirectly. To make a valid bequest to an unborn person, they MUST strictly satisfy two mandatory conditions:

The Creation of a Prior Interest: Property ownership cannot hang in a vacuum; a testator cannot simply declare, “I leave my house to my future, unborn granddaughter”. That direct transfer is void. Instead, the testator must create a temporary living bridge. The property must be bequeathed to a living person—usually through a life interest—who holds and enjoys the property until the unborn person comes into existence.
- Illustration: A grandfather leaves his estate to his living son, A, for A’s lifetime, and then to A’s unborn child. Here, A acts as the bridge. The law is satisfied because the property immediately vests in a living person (A) the moment the grandfather passes away.
Transfer of the Whole Remaining Interest: The law will tolerate tying up property for one generation, but it refuses to let a testator control the property from the grave indefinitely. When the property eventually passes from the living person to the (now born) beneficiary, it must be given to them absolutely. The bequest to the unborn person must comprise the entire remaining legal and beneficial interest that the testator had left to give. You cannot hold back any rights, impose further conditional delays, or limit what the unborn person can do with the property once they get it.

Landmark Precedent: Sopher v. Administrator-General of Bengal (1944). The Privy Council famously interpreted Section 113 in this case, cementing the rule that any attempt to put limitations upon the estate given to unborn persons, which derogates from the complete “whole remaining interest,” makes the bequest void.

Section 114: Rule against perpetuity

No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

This section explains that the rule against perpetuity is a legal principle designed to stop property owners from controlling their assets from beyond the grave for an endless amount of time. When a person makes a will, they often want to ensure their property stays within their bloodline for generations. Without legal limits, a testator could dictate that their property goes to their son, then to their grandson, then to their great-grandson, and so on, forever.

The law is also referred to as being ruled by the “dead hand”. The rule against perpetuity severs this dead hand. It dictates that while you can control who gets your property after you die, there is a strict expiration date on how long those conditions can last. According to Section 114, any condition in a will is void if it delays this vesting beyond a specific timeframe.

The maximum allowable time is calculated using this formula:

The Perpetuity Period = The lifetime of a person (or persons) living at the time of the testator’s death + The minority (18 years) of the ultimate unborn beneficiary.

The law does not invalidate these endless transfers just to be difficult; it does so for the economic health of society:

Active Circulation of Wealth: Property is a fundamental economic resource. If land or wealth is locked into a single-family line indefinitely with no one holding the absolute right to sell, mortgage, or lease it, the property becomes economically stagnant.
Promoting Trade and Commerce: For a capitalist economy to thrive, assets must be alienable (freely transferable). The rule ensures property eventually ends up in the hands of a living person who can use it for business, sell it for profit, or develop it.
Preventing Wealth Concentration: It prevents the permanent hoarding of wealth by a few elite families, allowing subsequent generations to make their own financial decisions based on current realities, rather than the wishes of an ancestor who died a century ago.

Illustrations:

A fund is bequeathed to A for his life, and after his death to B for his life, and after B’s death to such of B’s sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case, the sons of B are persons living at the time of the testator’s decease, and the time when either of them will attain 25 necessarily falls within his own lifetime. The bequest is valid.
A fund is bequeathed to A for his life and after his death to B for his life; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here, the son of B who shall first attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void.

Section 115: Bequest to a class, some of whom may come under rules in Sections 113 and 114

If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of Section 113 or Section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.

This section explains that when a person makes a will, they don’t always name beneficiaries individually; it is often that they leave property to a group defined by a relationship, such as “to all my children” or “to my sister’s children”. This is called a “Class” in legal terms. The challenge arises when some members of that class legally qualify to receive the property, but others violate the strict rules of Sections 113 and 114.

This section acts like a saving clause for wills. It establishes the rule that the failure of a gift to one member of a class does not destroy the gift for everyone else. If a bequest is legally void for certain individuals within the group because they run afoul of the perpetuity rules, the law simply severs those individuals from the group. The bequest becomes void only for them, while the valid members of the class still inherit their shares. The living members will be the valid group, whereas the unborn members of the family will be the void beneficiaries.

Illustrations:

A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator and has some children living at the testator’s death. Each child of A living at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. The bequest to A’s children, therefore, is inoperative as to any child born after the testator’s death; and in regard to those who do not attain the age of 25 within 18 years after A’s death, but is operative in regard to the other children of A.
A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shall attain the age of 25. B, C, and D are children of A living at the testator’s decease. In all other respects, the case is the same as that supposed in Illustration (i). Although the mention of B, C, and D does not prevent the bequest from being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the children B, C, or D, who attains the age of 25 within 18 years after A’s death.

The outcome of the section is that instead of throwing out the entire gift to the children just because the unborn is disqualified, the law saves the living ones’ portions. The living persons will get their share from the will, while the person who is unborn won’t get anything.

Section 116: Bequest to take effect on failure of prior bequest

Where by reason of any of the rules contained in Sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.

This section represents the “Domino Effect” of invalid wills. It dictates that if a primary gift in a will fails because it violates Sections 113 and 114, any subsequent gift that was supposed to follow it automatically fails as well.

Think of a will’s instructions like a chain of events or a stack of blocks. The testator sets up a timeline where first the property would go to Person A, then it will go to Person B, and eventually, it will go to Person C. If the law steps in and declares the gift to Person B is entirely void because it breaks the rule, the chain is broken. Person C’s gift, which is built on the foundation of Person B’s gift, collapses along with it.

Why does the law punish the subsequent person (Person C) for the legal mistakes made in Person B’s gift? It comes down to protecting the true intention of the testator. The testator intended for the subsequent beneficiary to get the property only after the prior beneficiary’s interest had naturally run its course or failed. If the law simply erased the void gift to the unborn person and accelerated the gift to the next person in line, it would rewrite the will in a way the testator never intended. The court’s job is to interpret the will, not rewrite it. Therefore, if the main plan is legally flawed, the backup plans attached to it are thrown out too.

Illustrations:

A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under Section 114. The bequest to B is void.
A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to take effect upon failure of the bequest to such of A’s sons as shall first attain the age of 25, which bequest is void under Section 114. The bequest to B is void.

When a chain of bequests becomes void under Section 116, the property doesn’t just disappear. After the valid parts of the will come to an end, the property falls into the “residue” of the estate. If the testator has a “residuary clause,” it goes there. If there is no such clause, the property passes through the standard laws of intestate succession, exactly as if the testator had never written a will for that specific property.

Case Laws

Tagore v. Tagore (1872)

The Story: A wealthy man named Prosonno Coomar Tagore tried to write a will that would keep his vast estates intact within his family line forever. He created a complex web of “life interests,” passing the property down through generations of sons and grandsons who had not even been born yet.
The Ruling: The Privy Council struck this down, establishing the fundamental principle that you generally cannot make a gift to a person who is not in existence at the time the testator dies.
The Impact: This case is the reason Sections 113 and 114 were created. It forced the law to strictly dictate that if you do want to give property to an unborn person, you can only do it by giving them the absolute, total ownership of the property.

Sopher v. Administrator General of Bengal (1944)

This is the leading case specifically interpreting Section 113 of the Indian Succession Act.
The Story: A grandfather left property in his will to his unborn grandchildren. However, he attached a catch: the grandchildren would only get the income from the property, and the actual absolute ownership would only vest in them later under certain conditions.
The Ruling: The court declared the bequest void. It cemented the rule that when you create a prior interest (like giving it to your living son for his life) and then leave the remainder to an unborn person, you cannot hold anything back. You must give the unborn person the “whole remaining interest”. Because the grandfather tried to control the property even after the grandchildren were born, the gift failed.

Girjesh Dutt v. Data Din (1934)

The Story: A woman left property to her nephew for his lifetime, and after his death, to his unborn daughters. But she added a condition: if those unborn daughters eventually died without having children of their own, the property would go to a third party.
The Ruling: The court ruled the gift to the unborn daughters was entirely void. Why? Because true “absolute ownership” means the owner can do whatever they want with it. By dictating what happens to the property after the unborn daughters die, the woman did not give them absolute ownership. Therefore, it violated the rule for unborn persons.

Raja Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (1953)

The Story: This involved a complex will creating successive life estates for living heirs and subsequent interests for heirs yet to be born.
The Ruling: The Supreme Court reaffirmed the strictness of the rules. It clarified that while a testator is perfectly free to create life interests for people who are currently alive, any ultimate gift that rests on an unborn person must be absolute and cannot violate the rules of delayed vesting. If the gift to the unborn person fails, any backup plans attached to it fail as well (reinforcing the “domino effect” of Section 116).

Conclusion

Ultimately, Sections 112 through 116 of the Indian Succession Act, 1925, strike a vital balance between respecting a testator’s final wishes and safeguarding society’s economic health. While the law permits property transfers to unborn generations, it vehemently rejects the “dead hand” control that stagnates wealth. By mandating the creation of a living bridge, demanding the transfer of absolute interest, and enforcing the strict rule against perpetuity, the legal framework ensures property remains a dynamic, circulating asset.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of The Lawscape.

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