A person capable of taking under a will must either in fact or in contemplation of law, be in existence at the death of the testator. This was the rule of pure Hindu Law, so the bequest to an unborn person was void in law.
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But this has been modified by three Acts, namely the Hindu Transfers and Bequests Act, 1914, the Hindu Disposition of Property Act, 1916, the Hindu Transfers and Bequests (City of Madras) Act, 1921. The rule as altered by these Acts may be stated as follows:
ADVERTISEMENTS:
Subject to limitations and provisions contained in Section 113, 114, 115 and 116 of the Indian Succession Act, 1925, no 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. This rule is, however, not of universal application, but is confined to the following cases namely:
(i) To wills executed on or after the 14th February, 1914 by a Hindu domiciled in the State of Madras, except the city of Madras and in the case of wills executed before that date to such of disposition thereby made as are intended to come into operation at time which is subsequent to that date; Hindu Transfers and Bequests Act, 1914;
(ii) To wills executed on or after the 20th September, 1961 by Hindus in any part of India except the State of Madras; Hindu Disposition of Property Act, 1961;
(iii) To wills executed on or after the 27th March, 1921 by a Hindu domiciled within the limits of the ordinary original civil jurisdiction of the High Court of Madras, and in the case of will§ executed before the date, to such of the dispositions thereby made as are to come into operation at a time subsequent to 14th February, 1914; Hindu Transfers and Bequests (City of Madras) Act, 1921.