Post by Pranita Kadam

Greetings LinkedIn family, I am pleased to share my 6th post in this legal series, continuing my journey of learning and sharing legal knowledge with you all. 6.    Nasciturus pro iam nato habetur Literal meaning: “A person who is about to be born is considered as already born.” Explanation: This maxim means that a child in the womb (unborn child) is treated as already born for certain legal purposes, especially when it is beneficial to the child. Law recognizes the rights of an unborn child in matters like property and inheritance. In simple words, if a benefit is to be given, the unborn child is given the same protection as a born person, provided the child is later born alive. Origins / History: The maxim originates from Roman law, where jurists aimed to protect the interests of unborn children, especially in inheritance matters. They recognized that denying rights to a child merely because it was not yet born would lead to injustice. This principle was later adopted into English common law and became an important rule in property and succession law. Over time, it was incorporated into Indian legal jurisprudence, particularly in laws relating to inheritance, transfer of property, and succession, ensuring protection of the rights of unborn children. Case laws: 1.Tagore v Tagore (1872) was a landmark decision of the Judicial Committee of the Privy Council that shaped the modern law of inheritance under Hindu law in British India. The case clarified the limits of property disposition by will within the framework of the Hindu Joint family system and remains a cornerstone of Indian succession jurisprudence. Facts: The case involved a dispute over a will where property was intended to be transferred to future generations, including persons not yet born. The issue arose whether such transfer to unborn persons was valid and how their rights could be recognized under law. Held by the Court: The Privy Council held that while certain limitations exist on transferring property to unborn persons, the law does recognize their rights when it is for their benefit. The principle underlying this is that an unborn child can be treated as already born for beneficial purposes, provided the child is eventually born alive. This reflects the maxim Nasciturus pro iam nato habetur. Illustration: If a father dies leaving property, and his wife is pregnant at that time, the unborn child has a right to inherit the property, provided the child is born alive. Similarly, if property is transferred for the benefit of a future child, the law recognizes the unborn child’s interest. Thus, the law treats an unborn child as already born for beneficial purposes, reflecting this maxim. References: Transfer of Property Act, 1882 (Section 13) #ruleoflaw #indianlaw #BBA_LLB #lawstudent #legalmaxims Dr. Deepshikha Sharma Vishwakarma University - VU