1. This case, referred to the Division Bench, raises an important question as to the interpretation of Section 6 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as amended up to date, hereinafter referred to as 'the Act'. The family unit of which the petitioner is a member, is declared to be a surplus holder to the extent of 11 acres 3 gun-thas. It consisted of five members including the petitioner on the appointed date, i.e., 2nd October, 1975. Twin daughters were born to him thereafter on 20th June 1976, The daughters can be said to have been conceived in the womb, on the appointed day, in view of their birth within nine months therefrom. The unit is so declared surplus holder without counting the daughters, as its members in which case, the unit is entitled to retain an enlarged ceiling area under Sec. 6 of the Act.
2. Mr. A.V. Savant, the learned Advocate for the petitioner, submits that, enlarging of ceiling area, under Section 6 of the Act is aimed at, providing means of sustenance for larger families of more than five. A child in the womb, so pregnant on the appointed day with veritable possibility of an addition to the strength of dependants, so contends Mr. Savant, cannot be excluded from the membership of the unit contemplated under this section. With the inclusion of daughters, the family unit would become seven member strong and would not be liable to be declared as surplus. It would be entitled to a larger ceiling area of 18 acres more. Mr. C.J. Sawant, the learned Additional Government Pleader for the State, on the other hand, contends that only living and existing persons on the appointed day can be said to be members of the unit under this provision, and not the conceived unborn children. The family unit of the petitioner, says Mr. C.J. Sawant, cannot claim larger ceiling area. The question is: Can the unborn but conceived child still in the womb, be considered to be member of the unit under Section 6 of the Act? Section 6 reads as follows:--
'6. Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one-fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area.' .
3. Now, family can ordinarily be said to consist of members who are physically in existence. The same istrue of the family unit which is just a scion of the family under the scheme of the Act. It cannot be said to consist of any one not in existence. A child in the womb can never be considered to be in existence. It is impossible to think of the actual physical existence of any unborn child even if conceived in the womb. The legislature does at time create legal fictions as to existence of things or facts which do not physically and actually exist. Every one including the Court then has to take notice of it and recognise it for all practical purposes. The language of Section 6 does not admit of any such legal fiction. But, contends Mr. Sawant, such legislative intent is implicit in the object with which enlargement of the ceiling area is conceived thereunder.
4. Section 3 of the Act prevents (1) any person or (2) a family unit, from holding any land in excess of the ceiling area. The first schedule of the Act prescribes the ceiling area for each district depending on as to which class the land belongs. Section 5 specifies the mode of determining the ceiling area of any holder, in the event of his or its holding more than one class of land. Section 6, however, contemplates enlarging of the said ceiling area in the event of (1) the family unit being the holder and (2) the strength of its members exceeding five. The extent of the enlarged ceiling area is made to depend on the strength of larger membership beyond five. It is however not to exceed in any event twice the scheduled ceiling area.
5. The reason for this contemplated enlargement is not far to seek. The ceiling area for each district itself came to be fixed by reference, amongst others, to the needs of an average family of an agriculturist, in addition to (1) the quality of the land and (2) the available sources for its irrigation. Average size of such family depending on its income is assumed to consist of five members. This is what the statement of the object of the Bill of the original Act of 1961 and the report of the Planning Commission Panel, on Land Reforms, seem to have indicated. In the very nature of things, the conception of such 'needs' of any such family of five, cannot but be relative and flexible depending, amongst otherfactors, on the habits, mode of living and the standard of life of the strata of the society to which it belongs. Growing demands, for land from the landless peasantry, on the available lands also is bound to place limitations on such relative concept of its needs. This accounts partly for the reduction of ceiling area from what it was under the original Act of 1961, what now is under the amended Act of 1975.
6. The legislature however did fix the scheduled ceiling, taking into account, such needs of five member family depending entirely on its income for its sustenance. The underlying legislative intent under Section 6 in enlarging the scheduled ceiling area, appears to be, to provide larger area for the sustenance of a family of more than five. It is thus to enable it to retain proportionately larger area for their sustenance before the land is declared surplus, and acquired under the Act. The maximum limit of such enlarged ceiling at twice the scheduled ceiling area also appears to have been so fixed, on the further statutory assumption, that size of the family unit under no circumstances would exceed so much as to need more than twice the scheduled ceiling area. In other words, strength of the family unit members under the scheme of Section 6 has no relevance excepting to indicate its needs for larger area than is fixed in the schedule by reference to the need of an average family of five. To this limited extent Mr. Savant's contention is correct.
7. Secondly, the needs of the family according to its strength as on the appointed day alone is relevant under the scheme of the Act including Section 6 thereof. Its such strength and its needs on the date of enquiry, or, on any other date, earlier or later than the appointed day, has no relevance whatsoever. Fluctuation in the strength by increase or decrease therein by birth, death, marriages, partition, etc., is but a usual phenomena in any family. The legislative scheme under the Act however proceeds on the hypothesis of its being implemented notion-ally on the appointed day itself, making it impossible to readjust claims arising out of subsequent increase ordecrease in the family strength. The post appointed day acquisitions of the land by any holder, by inheritance or otherwise, are liable to be accounted for, in the event of the same making him surplus land holder under Sec. 3 read with Sections 12 and 18 of the Act. The Act, however, does not enable the holders to claim return of their lands, so declared surplus and acquired, on subsequent reduction in their holding or increase in the strength of their family on account of subsequent births and consequentially in its needs.
8. Thirdly, the benefit of Section 6 is intended not for the family but for the family unit, as denned under Section 2 (11A) read with Explanation to Section 4 (1). It reads as follows:
'A 'family unit' means,--
(a) a person and his spouses (or more than one spouse) and their minor sons and minor unmarried daughters if any; or
(b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or
(c) where the spouses are dead, theminor sons and minor unmarrieddaughters of such deceased spouses.'
9. The 'family' under Section 2 (11) includes Hindu joint family and other group or unit, members of which are joint in the estate or possession or residence by custom or usage. In ordinary course, this definition includes any one's parents, married sons, unmarried major daughters and several others. It consists of earning members as also minors, aged or invalid dependants. The family as such does not own any property excepting possibly in the case of Hindu joint family. Blood relationship mainly brings them together. This and the customary notions enable all of them to reside together and enjoy the property and earnings, of all or any one of them jointly, though such bonds are now placed under severance strain in the wake of rapidly changing economic structure.
10. The 'family unit' though scion of the family of every kind, is still an artificial concept. It is expressly limited to a few, i.e., spouses and their minor children impliedly indicating legislative intent to exclude every oneelse coming within the sweep of wide concept of the 'family'. Section 2 (20) of the original Act, denning the words 'member of the family' including every conceivable dependant, is now deleted. This amendment also reveals the same legislative intent. This must necessarily exclude even the legal fiction of Hindu Law, of limited application, assuming the son to have become the member of the joint family from the date of conception, before his actual birth, and acquired interest in the joint family property for the purposes of challenging the alienations and partitions effected thereafter. AH this militates against the 'family unit' admitting by implication, any child in the womb before its actual birth, being treated as its member.
11. The contention of Mr. Savant, that unborn child also is as good as minor, is devoid of any merit. The person remains a minor, till he reaches the age of 18. But age begins to run from the date of birth and not that of conception.
12. Thus, physically existing members as on the appointed day can alone be taken into account to determine the strength of the family unit. Legislature could be assumed to have the need of such existing and living dependants alone in mind while providing for larger ceiling area under Section 6 of the Act. It is difficult to conceive of any needs of a child in a womb, or the legislature having intended to enlarge ceiling area for its non-existing needs. The integral connection between the needs, and the strength of the family must necessarily result in excluding the child in the womb from the membership of the family unit. Subsequent birth of a child, already conceived in the womb on or before the appointed day, must therefore be ruled out of consideration for implementing the scheme under Section 6. The after-born, daughters therefore cannot be consi-1 dered to be the members of the family unit on the appointed day. The family unit thus is not entitled to any enlarged ceiling area on this, account.
13. Mr. Savant is right in contending that, the law does take notice of the existence of unborn child in the womb for certain purposes. Thug causing injuries to the child in the wombis made an offence under Sections 312 and 315 of the Indian Penal Code. Transfer of Property Act permits transfer of land to the child in the womb subject to certain restrictions. Indian Succession Act also permits bequeathing of the property in favour of an an born child. It may, therefore, be taken as settled law that existence of a child in the womb is taken into account for certain purposes. This cannot be said true of the law, such as this Act, which does not expressly extend such recognition. This cannot also justify assumption of any legal fiction of the conceived child being in actual existence. Such a fiction appears to have been assumed in existence, in terms of, what, is known as Lord Campbell's English Act entitling a child in the womb to compensation for loss of the life of his father in a motor accident before his birth but after his conception. (See Jurisprudence by Salmond, 12th Edition, page 64). Reliance on these instances by Mr. Savant is not of any use.
14. Mr. Savant also drew our attention to the legal fiction of the uncodified Hindu Law adverted to by us earlier, and Section 3(3)(1) of the Act. This section, no doubt, contemplates a notional partition between persons entitled to a share at any such partition where land belongs to a family. This is aimed at ensuring that every major member of the family retains independent ceiling area, if otherwise he could claim some share therein and have enforced the same by partition. Shares in land of such minor family members are liable to be clubbed with the land of his parents etc. under Section 4 (1) of the Act. This is obviously done to discourage fake partitions resorted to by some holders to avoid the impact of Tenancy and un amended Ceiling Act. The clubbing of the land of minors under the family unit also enables elimination of the concentration of lands in the hands of those who cannot actually cultivate it personally in the true sense of the term. Mr. Sawant contends that, a son in the womb is also entitled to have the benefit of such notional partition in view of the Hindu Law still governing the partition of joint family properties though his share in the land is liable to be clubbed withthe land of his parents. He further contends that if such land when found to be held by it is liable to be clubbed with his family lands as member of the family unit, he should also be entitled to be treated as member for the benefit of Section 6. The contention is undoubtedly attractive. It is however based on assumption already shown earlier to be fallacious.
15. In the first place, the word 'family' in Sections 3 (3) (a) and 3 (3) (i) must include families of all citizens whether Hindus or non-Hindus, though incidentally it also includes Hindu joint family. However the fact whether land belongs to Hindu joint family or to some other kind of family of Hindus or non-Hindus is not at all relevant to the scheme of the Act. Secondly, the words 'family of which the person is a member' refers to the member who is in existence and not to any would-be born child. Thirdly, definition of 'family unit' does not admit of any 'child in the womb' being its member. Fourthly, this legal fiction itself is limited to the son's right in the joint family property. It is not shown to have any application excepting to his right to challenge alienations and partitions effected after his conception. It has no application to the rights of daughters or of other heirs of the joint family property nor to any Hindu's rights in any other property. It can never have any application to non-Hindus. Section 6 applies to lands of every holder irrespective of his religion or personal law. The concept of membership of the family unit under Section 6 cannot differ from holder to holder depending on his being a Hindu or not. At any rate, there is nothing in the Act to so indicate nor there is any rational basis for the same. It is not possible to so interpret this section without exposing it to the attack of being violative of the equal protection of law guaranteed to the citizen under Article 14 of the Constitution.
16. Secondly, membership of such family unit under the Scheme of this provision is not made dependent on such members owning any land or having any interest therein. Section 6 takes notice of the obligation of the head of the family unit to maintain its minor sons and minor unmarried daughters.Enlargement of ceiling area is intended to meet the needs in extremely limited situations. Though, artificial concept of 'family unit' under Section 4 is mainly designed to enable clubbing of the lands of the husband, wife and their minor children together for acquisition of the surplus, holding of any land or interest therein is not deliberately made an ingredient of its definition nor extension of the benefit under Section 6 is made in any manner dependent on this.
17. Turning now to the cases cited, reliance is placed by Mr. Savant on the judgments of Dighe J. in the case of Sharadkumar Jagannathprasad Verma v. State of Maharashtra and Kundlik Tukaram Fatangale v. State of Maharashtra, : AIR1977Bom83 . The learned Judge relied on the legal fiction of Hindu Law, discussed by us earlier and treated a child in the womb on the appointed day as the member of the 'family unit' and allowed it to have larger ceiling area on that basis under the amended Act. He relied on the earlier judgment of the Division Bench of this Court in Raghunath Ramchandra Kabra v. State of Maharashtra, 1975 MahLJ 603 in support of this view. Now, Raghunath's was a case in which the land was a joint family property and joint family was the holder, which was permissible under Sections 4 and 6 of the unamended Act. This appears to have furnished some basis for attracting the legal fiction of the Hindu Law. This is how the claim of the holder for extending the ceiling area was upheld by the learned Judges. We have already indicated our reasons for our contrary view as to the application of this legal fiction to the Scheme under even unamended Section 6 of the Act. With great respect to the learned Judges, we beg to differ. However, the learned Judges had no occasion to consider the effect of the recently introduced amendments in the Act. The ratio of this case is no more a good law after these amendments. The family now ceases to be the holder. The benefit of the larger ceiling area is limited only to a family unit, the membership of which under its definition is confined to the spouses and their minor children in the familyexcluding everyone else. As indicated earlier, unborn child cannot even be considered to be a minor, as age does not begin to run before the actual birth.
18. Our answer to the question is that child, whether a son or daughter, taking birth after the appointed day, cannot be held to be a member of the family unit for the purposes of enlarging the ceiling area considered under Section 6, even if it were conceived in the womb on or before the appointed day. Rule in this case is liable to be discharged.
19. Rule is accordingly discharged. There will be no order as to costs.
20. Civil Application 1647 of 1978 does not survive.
21. Order accordingly.