Sopher v Administrator-General of Bengal

Facts

A will provided for an ultimate bequest in favour of persons not born at the time of the testator's death, but two clauses provided for forfeiture of the unborn beneficiaries' interests on certain contingencies. The question was whether the bequest comprised the whole of the testator's remaining interest in the property as required for a valid disposition in favour of an unborn person.

Issues

• Whether a disposition in favour of an unborn person which is subject to defeasance/forfeiture clauses confers the 'whole of the remaining interest' as required.
• The effect of section 113 of the Indian Succession Act (corresponding to section 13) on such a bequest.

Arguments

It was argued that the bequest to the unborn beneficiaries was valid as it gave them the property absolutely subject only to defeasance. The contrary argument was that because the interest could be cut down or forfeited, it was not a transfer of the whole remaining interest and so failed under section 13 / section 113.

Held

The Privy Council held that for a valid disposition in favour of an unborn person, the interest created must extend to the whole of the remaining interest of the transferor so that the unborn person, on coming into existence, takes an absolute interest. Because the forfeiture clauses meant the unborn beneficiaries' interests could be defeated and did not amount to the whole remaining interest, the bequest was invalid. The decision construed the requirement as one of certainty of vesting of the entire residue in the unborn person.

Ratio decidendi

A transfer for the benefit of an unborn person is valid only if it confers on him the whole of the transferor's remaining interest; a disposition that leaves the interest liable to be defeated or does not pass the entire residue fails under section 13.

Significance

Authoritative exposition of section 13 / section 113 Indian Succession Act on transfers to unborn persons; its strict construction prompted the Bombay Disposition of Property (Validating) Act, 1947 and was debated in Framroz Dadabhoy Mason v Tehmina.

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