BALAKRISHNA KURUP Vs. STATE OF KERALA

JUDGEMENT

(1.) Can a child in utero be said to be a minor child When a woman conceives could it be said that even before the delivery the unborn in the womb is a minor child of such mother This interesting question arises in this case in the following circumstances:

(2.) Kerala Land Reforms Act 1963 (hereinafter referred to as the Act) provides, in Chap.3, for the determination of the ceiling area permitted to be held by a person and surrender of land in excess over the ceiling area. The ceiling is determined with reference to a family, an adult unmarried person, or any other person. The family as defined in the Act is an artificial unit consisting of a husband wife and unmarried minor children. The properties of the members of the family are treated as that of the family for the purpose of determining the ceiling area. If any of the members of the family owns or holds land or a share in land which is joint property that is treated as the land of the family for the purpose of Chap.3. It is not as if this provision is intended to alter the right of the individual members of the family to the lands assumed to be that of the family for the purpose of determining the ceiling area. The rights in the land continue as before. But the deeming provision in the Act by which the lands belonging to each one of the members of the family as defined in the Act are treated as that of the family is only for the determination of the extent of the land held by such family for the purpose of surrender and for directing surrender of excess land. Ceiling limit is fixed under S.82(1) of the Act for a family consisting of two or more but not more than 5 members as 10 standard acres. Where the members of a family consist of more than 5 the ceiling area in standard acres will be larger. Therefore the more the members the larger the ceiling area in standard acres. The property may belong to the father, to the mother or to one of the minor children and may continue to be so. But for the limited purpose of determining the area that is held by the family the property is taken to be that of the family and if there is excess the family has to surrender. The question that has arisen for determination in this case is whether a family could claim that a child born after 1-1-1970 but conceived at that time could claim to be a member of the family so as to increase the ceiling area by one more standard acre. 1-1-1970 is the date notified under S.83 of the Act, the date on which the surrender provision became operative. The Taluk Land Board, Tirur, against whose order this revision is filed has held the view that an unborn child is not a minor child who should be taken as a member of the family in determining the ceiling area of the land that could be held by a family. But learned counsel Sri. T. R. Govinda Warrier canvasses for the position that even an unborn child has a legal personality, that it has rights recognised by law and therefore must be treated as a child and so long as it has not attained the age of 18 it is to be further qualified as a minor child and if so it should be reckoned as a member of a family defined in S.2(14) of the Act as meaning husband, wife and unmarried children. Unmarried of course, it is, but is it a child and that a minor child.

(3.) I do not think the enquiry into this case should lead me to consider whether an unborn child is a legal personality. Not that it is difficult to answer, for, except for certain limited purposes law has not recognised an unborn child as the same in all respects as a child born. For certain purposes the existence of a child en ventre sa mere has been recognised in law. Under the Hindu law the right of a child born subsequent to a partition to reopen the partition under certain circumstances is recognised. So is the case with the right to have a share set apart even when the child is in the womb. This is a peculiar incidence of the Hindu law which recognises a right by birth to children in ancestral property. (Vide para 473 at page 293 of Introduction to Modern Hindu Law by Derret, 1963 Edn, Art.309, Art.372 of Mulla on Hindu Law 13th Edn.). A gift in favour of a person who was not in existence on the date of the gift was not recognised under the Hindu Law (Vide Tagore v. Tagore, (1872) 9 Beng. LR 377). This has been altered by statute law. (Vide para 359 and 360 of Mulla on Hindu Law). Under the Muslim Law a bequest to a person not yet in existence at the testator's death is void; but a bequest may be made to a child in the womb, provided it is born within six months from the date of the will. This is the only recognition under the Mohamedan Law of a child in utero. Unborn children have been considered to be capable of being benefited by gifts under the English law. This was the view expressed by the House of Lords in Elliot v. Joicey, 1935 AC 209 .