State of Andhra Pradesh vs Malladi Rama Subbaiah

Ramachandra Rao

In these two revision petitions filed u/s 21 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as the Act), the said question that arises for consideration is, whether a child in the womb of its mother on the notified date viz., 1-1-1975 the date on which the Act came into force and which was born subsequently, is entitled to be treated as a members of the ''family unit'' u/s 3 (f) of the Act. C.R.P. No. 1578/1976 has been filed by the Government against the Land Reforms Appellate Tribunal, Ongole, in L.R.A. No. 46/1976, where the Chairman of the said Tribunal took the view that such a child is member of the ''family unit'' and the Member of the Appellate Tribunal took a contrary view.

C.R.P. No. 1744/1976 has been filed by the declarant against the order of the Land Reforms Appellate Tribunal, Srikakulam, where the Appellate Tribunal took the view that such a child in the womb of its mother, could not be treated as a member of the family unit as defined in section 3 (f) of the Act.

''family unit'' is defined in Sec. 3 (f)of the Act, as follows:-

"Family unit" means-

(i) in the case of an individual who has a appose or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor sons and their unmarried minor daughters, if any:

(ii) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried minor daughters.

(iii) in the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody of not, and

(iv) Where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters.

Explanation:-Where a minor son is married, his wife and their off spring, if any, shall also be deemed to be members of the family unit of which the minor son is as member" Section 4 of the Act which prescribes the ceiling area of a family unit consisting of five members or more, and of an individual who is not a member of a family unit, reads as follows:-

4, Ceiling area:- (1) The ceiling area in the case of a family unit consisting of not more than five members shall be an extent of land equal to one standard holding.

(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one fifth of one standard holding for every such member in excess of five, so however that the ceiling area shall not exceed two standard holdings.

u/s 8 of the Act, a declaration has to be filled by every person if his holding on the notified date exceeds the ceiling area prescribed by the Act.

u/s 9, the Tribunal has to determine the ceiling area on the basis of the declaration furnished or information obtained u/s 8 of the Act, after making an enquiry in the prescribed manner. The Explanation to section 9 which is relevant for the purpose of these cases, reads as follows:-

Save as otherwise provided in this Act, in the case of family unit, the number of members of the family unit shall be reckoned with reference to the notified date.

This explanation clearly indicates that the manner of the family unit has to fee determined with reference to the notified date i.e., 1-1-1975.

The question that arises for consideration is, whether a child in the womb of its mother on the notified date i.e., 1-1-1975 and which was born subsequently can be treated as having been in existence on the notified date and such a child can be counted as a member of the family unit on the notified date.

The learned Government Pleader submits that unless the child is born and is actually in existence as on the notified date, it could not be treated as a member of the family unit, and that the definition of family unit shows that the member should be minor son or an unmarried minor daughter, and a child not born by the notified date, would not fall within the category of ''a minor son'' ''or an unmarried minor daughter'' and therefore it could not be treated as a member of the family units as on the notified date. In support of this contention, he relies upon the decision of the Allahabad High Court in The Budhya Singh Vs. State, and others.

On the other hand Sri P. Anjaneya Sarma, learned counsel for the respondent in C.R.P. No. 1578/1976 contents that it is a well established Principle that a child in the womb of its mother and which was born subsequently is deemed to be born on the date when the child was conceived, and that principle has been recognised in all civilised jurisprudences, and he has invited my attention to the several textual authorities and rulings of different High Courts.

Sri N.V. Ranganadham, learned counsel for the petitioner in C.R.P. No. 1744/1976 (which was subsequently heard) adopts the argument of Sri Anjaneya Sarma.

I Shall first refer to the textual authorities, to which my attention has been drawn by Sri Anjaneya Sarma.

In Jurisprudence by Roscoe Pound, at pages 386 & 387, the learned Author observed as follows:-

Two questions arises upon the general principle and have been much discussed, namely, one as to cases where the law for certain purposes treats an unborn child in its mother''s womb as having capacity for rights if afterwards born alive, the other as to cases where an injury wrongfully caused to the mother before birth is claimed to have resulted in birth of the child in a defective condition and the child sues for the injury to itself independent of the injury to the mother.

The learned Author further says" As to the first, in Roman law a text of the Digest tells us that "unborn children are in almost every branch of the civil law regarded as clearly existing".

The learned Author observed at page 286, as follows:-

"Accordingly Blackstone says"

An infant on ventre sa mere is supposed in law to be born for many purposes. It is capable of having a legacy or surrender of copyhold estate made to it. It may have a guardian assigned to it; and it is enabled have an estate limited to its use and to take afterwards if it was then actually born.

In Corpus Juris Secundum, Vol. 70 dealing with the word person'' it is explained at page 688, as follows:-

A child regarded as a person, and sometimes a child on ventre sa mere is considered to be a person, although it has been indicated that the mother must be quick with the child in order for the child to be so regarded In other cases it has been stated that a child becomes a person when born. An unborn child has been considered to be a "person" within the meaning of a constitutional guaranty providing that the courts shall be open to every person as stated] in Constitutional Law.

In Stroud''s Judicial Dictionary, Fourth Edition, Volume 3, instances have been mentioned as to when a child en ventre sa mere is treated as a living person. The learned author, states at page 1561 as follows:--

A power to appoint to children living at the parent''s decease, includes a child en ventre sa mere at that time.

Again the learned Author observes, "Sa, a gift to A if she have issue "living", will take effect if she be pregnant at the time indicated and afterwards give birth to a child (Re Burrows (1895) 2 Ch. 497): in this last case, Chitty J., rejected the doctrine that a child en ventre is only "living" where a direct benefit passes to such child. So, a children ventre is a life in being "a living thing" as regards the rule against Perpetuities (Re Wilmer (1903) 1 Co. 874, affirmed (1903) 2 Ch. 411.

In Stroud''s Judicial Dictionary, Vol. I Fourth Edition, at page 457, referring to the definition of "child of the family" Matrimonial Proceedings (Magistrates'' Courts) Act, 1960 it is stated that "A child en ventre do sa mere can be "a child of the family" within this definition (Caller V. Caller (1963) P.39. In Caller (1) 1968 P.39, the question that arose for consideration was whether an unborn child could be treated as a child of the family. In that case the facts were, a husband and wife were married at a time when the wife was expecting a child by another man. The husband knew that and had prior to the marriage expressed his willingness to accept the, child as a child of the family. However three weeks before the birth of the child, the husband left the wife in circumstances amounting to desertion. On wife''s complaint, it was found that the husband had deserted and wilfully neglected to maintain the wife; and that the husband had accepted the child as a child of the family within sections 2 & 16 (1) of the Matroimonal Proceedings (Magistrates'' Courts) Act, 1960 and ordered him to pay � 2 a week for the maintenance of the child. On appeal by the husband, one of the grounds raised was that the child not having been born by the date of marriage was not a child of the family. But that contention was rejected by the learned Judges Karminski and Latey JJ., The learned Judges held that within the definition in section 16 (1) of the said Act, could exist en ventre sa mere just as muchas it child who had in fact been delivered and that the husband had accepted the waiting to be born at a "child of the family."

Karminski J, posed the question as to whether the word ''child'' was applicable to a child not yet born and answered the question as follows:--

I am myself of the opinion that a child can exist en ventre sa mere just as much as child who has in fact been delivered.

Lately J., answered the question in the following words:--

Now the first question, therefore which was argued by Mr. Murray Band, is not that there is any doubt that in the husband''s mind the matter was agreed, but whether an unborn child can be accepted as a child of the family: and what his able and ingenious argument boiled down to in the end was that a child unborn is not a child. I should talk a lot of persuading that when Parliament chooses the simple words "a child" it intends any special meaning. I do not think the words are intended to be used in any way other than the natural way according to the common use of language. I should have thought for myself that in the ordinary English language pregnancy means "having a child" "having a baby". But Mr. Murray Band contends that what should be said is, "I am having an embryo" or "I am having a foctus" or words to that effect.

I am unable to accept "that argument and in my view a man can accept as a child of the family his wife''s unborn child just as readily as he can accept her born child: and that is what happened in this case.

In Salmond on Jurisprudence (12th Edition), the legal status of an unborn person has been stated in paragraph 64 as follows:

Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A man may settle property upon his wife and the children to be born of her. On he may die intestate, and his unborn children will inherit his estate. Yet the law is careful lest property should be too long withdrawn in this way from the uses of living men in favour of generations yet to come; and various restrictive rules have been established to this end. No testator could now direct his fortune to be accumulated for a hundred years and then be distributed among his descendants. A child in its mother''s womb is for many purposes regarded by a legal fiction as already born in accordance with the maxim, Naiciturus pro jam nato habetur. In the words of Coke: " The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against prepetuities.

Coming to the Hindu Law Text, it has been observed by Mayne on Hindu Law, (11th Edition) at page 499 as follows:-

A coparcener who is in his mothers womb at the time of the alienation and afterwards comes into separate existence is in law deemed to be in existence at the time of alienation as much as one born before it and is equally entitled to challenge the alienation.

In Tyabji''s Muslim Law, (4th Edition), the learned author observed at P. 819, paragraph 706 as follows:-

A child in the womb of its mother is competent to inherit, provided that it is born alive. A still-born child is reckoned as having been born alive, if its mother was treated with violence and in consequence thereof gave premature birth to it.

Thus these textual authorities referred to above clearly lay down that a child in the womb of its mother shall be deemed to be in existence from the date of its conception subject to the condition however that the child must have been born alive subsequently.

The rulings cited by the learned counsel for the respondent also support this proposition. In Ranganatha Reddy Vs. Ramaswami Mudali L.R. 58 Mad. 886 AIR 1935 Mad. (FB) 839 (4) the question that arose for consideration was whether a suit by a son who was in his mother''s womb at the time of alienation by the father, could take advantage of section 6 of the Indian Limitation Act. After referring to the case law on the point, Ramesam, J. observed as follows:-

"For the purpose of ascertaining when a disability of a person has ceased, we have to go to the Indian Majority Act which says a person becomes a major after the lapse of eighteen years after his birth and until that period he is a minor. I do not see any logical objection to holding that a child en ventre sa mere in cases when he is regarded as a person, should be regarded as a minor until eighteen years after his actual birth. Certainly he is not a major. The objection that he is not really a person cannot stand in the way of holding him to be a minor for we are dealing only with the cases when the law treats him as a person in existence. It is true that the case of action arises only at the time of the alienation and he does not get a second cause of action" on the date of his birth. But no such difficulty arises in this case.

Beasley C.J., speaking for the Full Bench, observed as follows:-

The question that arose in the lower court and arises before us, is whether section 6 of the Limitation Act can be taken advantage, of by the plaintiff. The Subordinate Judge dismissed the suit as barred by limitation, relying on Muhammad Khan V. Ahmad Khan ILR 10 Lah. 713. The learned Chief Justice of the Punjab High Court expressed the opinion that, if a person is not in existence he cannot well be described as a minor but Hindu Law does recognize that in certain cases a child in the womb of his mother should be regarded as a person in existence: Sabapathi V. Somasundaram (1882) I.L.R 16 Mad. 76 and Deo Narain Singh Vs. Ganga Singh (1914) ILR 67 All. 162. That being recognised it is difficult to see why he should not have the benefit of section 6 of the Limitation Act, as the Indian Majority Act says that a person becomes a major after "the lapse of eighteen years after his birth and is until that time a minor." A person in existence must be either a minor or a major, and obviously an infant en ventre sa mere cannot be a major and must therefore be a minor. The view that an infant en ventre as mere is for certain purposes a person in existence is not peculiar to the Hindu Laws as our learned brother Ramesam J. correctly points out in his order of reference in which he refers to some English decisions, namely, Wilmer''s Trusts, In Re Moore V. Wingfield (1903) 2 Ch. 411 and Villar V. Gilbey (1907) AC 139.

The learned Judge referred to the other English decisions and came to the conclusion that a child in embryo is deemed to be a minor in existence on the date of the conception, and that he would be entitled to take advantage of section 6 of the Limitation Act.

The Bombay High Court also took the same view in Basayya V. Baslingayya AIR 1948 Bom. 150 Sen J. speaking for the court, observed in paragraph 5 as follows:-

Mr. Shah has contained that this view is not correct. The grounds on which he has based his contention are: first that the plaintiff at the date of the alienation could not be said to be a person within the meaning of S 6 of the Act and secondly that even if he was a person, he could not be said to be minor. The word "Person" has been defined in the General Clauses Act as including my company or association or body of individuals whether incorporated or not. This meaning, therefore, is not confined to any individual, and has been made to include even inanimate entries like companies or oilier associations. I have already referred to the text of Gautama saying that the ownership of property or wealth arises on Utpatti, which has been interpreted, rightly in our opinion, by Lokur J. following Smruthichandrika, as birth in the mother''s womb, that is to say conception. According to the Hindu law therefore, the right to property accrues from the date of a person''s conception It seems to us difficult to see, when a person acquires the right of ownership from the date of his conception and not merely from the date of his birth, why he should not in Law be regarded as a person from the date of his conception. The definition in the General Causes Act is a wide definition as I have already stated and not merely confined to individuals who are already born.

We, therefore, think that it cannot be said that the plaintiff in this case, at the date of the alienation, though he was in his mother''s womb at the time, was not a person at all, the element of personality being one of the elements within the meaning of the expression "minor".

The Allahabad High Court also took the same view in B. Audhesh Singh Vs. B. Rajeshwari Singh and Others, where the learned Judges agreed with the view taken by the Madras High Court in Ranganatha Reddi vs. Ramaswamy Mudali ILR 58 Mad. 886 and the Bombay High Court in Basayya vs. Baslingayya AIR 1948 (Bom.) 150.

The same view was taken by the Calcutta High Court in Aswini Kumar Pan Vs. Sm. Parimal Debi and Others, who the learned Judges observed as follows:--

Section 6 of the Limitation Act would apply to the case of a child in the womb. A child in the mother''s womb is deemed to be in existence, at least for purposes of inheritance and has thus a right to challenge any transaction which affect its interests at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid cannot, under the Majority Act, be held to be a major, it must be held to be a minor, that is, a person, suffering from disability, as contemplated in the aforesaid section.

The learned Judges followed the view taken by the High Courts of Madras, Bombay and Allahabad and dissented from the view taken by the Lahore High Court.

Thus both the Textual authorities and the decided cases referred to above support the contention of the respondent in C.R.P. 1578/76 and of the petitioner in C.R.P. 1744/1976 that a children ventre sa mere must be deemed to be in existence on the date of its conception provided the child was born subsequently, and is deemed to be a minor.

In The State of U.P. and Another Vs. Dhan Singh and Others, relied upon by the learned Government Pleader, the learned Judge no doubt took the view that having regard to the several provisions of the U.P. Imposition of Ceiling of Land Holdings Act (Act I of 1961), a child who was born after the Act came into force, but who was in embryo on that date, could not be treated as a child in existence on the date of coming into force of that Act.

In support of that view, the learned Judge, referred to the decision of the Supreme Court in Guramma Bhratar Chanbasappa Deshmukh and Another Vs. Malappa, where their Lordships held that the Hindu Law doctrine that a son who was born subsequently is competent to challenge the alienations made by his father when the son was in his mother''s womb, could not be applied to adoptions, In the said case, it was contended by Sri Viswanatha Sastri, learned counsel for the appellants therein, that under Hindu Law, a son conceived or in his mother''s womb is equal in many respects to a son actually in existence in the matter of inheritance, partition, survivorship and the right to impeach an alienation made by his father and that, therefore, logically the same equation should hold good in the case of adoption, and that when a son in his mother''s womb is equated with a son in existence, vis-a-vis his right to set aside an alienation or to reopen a partition, the argument proceeds, the father could not valily adopt, as from the date of conception, the son must be deemed to be in existence. But this contention was repelled by their Lordships of the Supreme Court, in the following words:-

But there is an essential distinction between an alienation, partition and inheritance on the one hand and adoption on the other; his right to set aside an alienation hinges on his secular right to secure his share in the property belonging to the family, as he has a right by birth in the joint family property and transactions effected by the father in excess of his power when he was in the embryo are voidable at his instance but, in the case of adoption, it secures mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object, The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. We should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty.

We, therefore, hold that the existence of a son in embryo does not invalidate an adoption.

This ruling clearly establishes that except for the purpose of adoption under Hindu Law, in all other matters relating to inheritance, partition, survivorship, right to impeach an alienation, a son conceived or in his purposes, is not a principle applicable only to cases governed by Hindu Law but is accepted by all civilised Jurisprudences. For the foregoing reasons with respect I am unable to agree with the view expressed in The State of U.P. and Another Vs. Dhan Singh and Others,

The general principle appears to be well settled in all Jurisprudences that a child in the womb of its mother is treated as being in existence at on the date of the conception provided the child is born alive subsequently, But in Guramma Bhratar Chanbasappa Deshmukh and Another Vs. Malappa, . Their Lordships were not inclined to extend the said principle 10 cases of adoptions as it is likely to lead to anomalies. I do not think that there will be any legal impediment or that any hardship will be caused if the general principle is applied to the definition of ''family unit'' under the Ceiling Act. There is also no intelligible reason why the said principle should not be applied to cases falling under the Ceiling Act. The definition of ''family unit'' in section 3 (f) of the Act, refers to a ''minor son'' and an ''unmarried minor daughter'' and Sec. 4 refers to the members of the family unit. By treating a child in the womb of the mother as a minor, be it a son or daughter, or as a member of the family unit, it does not lead to any hardship or cause any anomaly and is not also inconsistent with the object or scheme of the Act. On the other hand, failure to recognise a child in the womb its mothes as on the notified date as a minor may lead to anomalies and hardships. Take a case where a bequest or a gift is made to a child to be born who was then in the womb of its mother, is the child to be treated as an individual or as a member of the family unit of its father and or mother? If the property bequeathed or gifted to such a child is to be treated as held by an individual, it does give rise to anomalies and absurdities. I think that the general principle which is universally recognised that a child conceived or in the mother''s womb is treated as being in existence, can also be invoked and applied to cases falling under the Ceiling Act, provided it is established that the child was in the womb of its mother as on the notified date and was born alive subsequently.

In view of the authorities and rulings referred to supra, I hold that a child in the womb of its mother on the notified date of the Act and which is born subsequently has to be treated as a minor member of the family unit as defined in section 3 (f) of the Act. In the result the order of the Chairman of the Land Reforms Appellate Tribunal, Ongole in L.R.A. No. 46/1976 is confirmed and the revision petition 1578/1976 is dismissed with costs. Advocate''s fee Rs. 100/-. The order of the Land Reforms Appellate Tribunal, Srikakulam, in L.C.A. 34/ 1976 is set aside and the daughter born to the petitioner in C.R.P. 1744/1976 in June, 1965 shall be included in the family unit of the petitioner, and his family unit is declared entitled to hold 1,4000 standard holdings and the extent of the holding which the petitioner''s family unit will be entitled to, will be determined accordingly. C.R.P. 1744/1976 is accordingly allowed with costs. Advocates, fee Rs. 100/-.