S. Ramachandra Iyer, O.C.J.
1. The assessee and his brothers along with their father originally constituted a joint Hindu family. In the year 1929 there was a partition of their interest in a company an important item of property belonging to the family under which the assessee obtained 25-shares, each valued at Rs. 1,000. This asset enabled the assessee, in course of years to acquire considerable properties.
Besides, the assessee was himself employed in one capacity or another in the company in respect of which he had been receiving salaries. The income from the properties as well as the remuneration received by the assessee were his separate income after 1929 and the assessee was accordingly assessed to tax as an individual. On nth December, 1952, a son was born to the assessee. In submitting his return for the assessment year 1952-53 (the year of account being from 1st April, 1952 to 31st March, 1953) the assessee stated that he should be assessed in regard to his salary alone as an individual but the rest of his income, namely, that received from his properties which were acquired out of the nucleus of what he obtained under the family partition, should be assessed as that of a Hindu undivided family of which he and his son formed members. His case was that as his son was born on nth December, 1952, he should be deemed to have been in his mother's womb at least 280 days before the actual date of his birth and that, therefore, from the beginning of the year of account there should be deemed to have been in existence a Hindu undivided family consisting of himself and his son owning properties referred to earlier. The Income-tax Officer did not accept the assesee's contention. He levied assessment on the assessee for the entire income as an individual up to the date of the actual birth of the son, namely, nth December, 1952. From nth December, 1952 to the end of the year of account the officer recognised the assessee as the Kartha of a Hindu undivided family as well and completed the assessment on that basis. The assessee appealed to the Appellate Assistant Commissioner; that appeal and a further appeal to the Tribunal met with no success. The following question was thereupon referred to this Court for opinion:
Whether the assessment of the income of the assessee other than his salary in the hands of the assessee as an individual and not as a Hindu undivided family till 11th December, 1952, for the assessment year 1953-54 is valid?
The only question for consideration in this reference is whether there was in existence an undivided Hindu family consisting of the assessee and his son from 1st April, 1952 to nth December, 1952. It is contended for the assessee that as under the Hindu law membership of a coparcenary in a joint family is considered to commence from the date of conception by the mother, the assessee's son should be held to have been in existence since the beginning of the year of account and that the assessee could not, therefore, be assessed in his status as an individual for any part of that year. That a child in embryo is to be considered as a person in existence for certain purposes is a rule not peculiar to Hindu law but obtains in other systems of jurisprudence, as well. In Sabapathi v. Somasundaram (1882) 2 M.L.J. 244 : I.L.R. Mad. 76, reference has been made to Blackstone's Commentary which says:
An infant en ventre sa mere is supposed to be born for many purposes. It is capable of having a legacy or a surrender of a copy-hold estate made to it. It may have an estate assigned to it and it is enabled to have an estate limited to its use and to take afterwards by such limitation as if it were then actually born.
Under the law a person is one to whom the law attributes a capacity to possess rights and perform duties. Can an unborn person do either? Salmond in his Jurisprudence (1957 edition, at pages 350, 353 and 354) says:
A person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person whether a human being or not and no being that is not so capable is a person even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance and this is the exclusive point of view from which personality receives legal recognition.... 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 nonetheless a real and present ownership. A man may settle property upon his wife and children to be born of her or he may die intestate and his unborn child will inherit his estate.... A child in its mothers' womb is for many purposes regarded by a legal fiction as already born in accordance with the maxim naciturus 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 perpetuities. The rights of an unborn son whether proprietary or personal are all contingent on his birth as a living human being. The lega personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living; Abortion and child destruction are crimes but such acts do not amount to murder or manslaughter unless the child is born alive before he dies; a posthumous child may inherit, but if he dies in the womb or is still-born his inheritance fails to take effect and no one can claim through him though it would be otherwise if he lived for an hour after his birth.
From the principle stated above it is apparent that the existence of a child yet unborn is a fiction created for the benefit of the child that is born with a view to protect its rights to property. The rule which is intended for the protection of the unborn is recognised in cases of succession. A right to property on succession legally takes place under the law immediately after the death of the owner, as property cannot be without an owner and succession cannot be postponed. But where an owner of property dies while his wife is enceinte, a son that is born subsequently would take the property as the heir of his father although he was not in actual existence on the date when succession opened. This is an application of the principle of an unborn son being in existence on the date when the succession opened. It is a plain case of the application of the rule for the child's benefit. The Smritis and Commentaries in Hindu law contain special texts regarding the rights in the family property of after-born sons where such property had been divided before their birth. The texts have been referred to in Yekeyamian v. Agniswarian (1869) 4 M.H.C.R. 307. In that case an after-born son of a father challenged a partition effected by the latter Junder which he gave his previously adopted son a share in excess of what he would have been entitled to under the law. It was held that the right of an after-born son to a share as a coparcener depended upon his mother being pregnant with him at the time of partition and that as the partition in that case was effected before such conception, it could be not challenged. The learned Judges observed:
From conception by his mother membership with the family is considered as commencing. Accordingly it is enjoined in the same section of Mitakshara that if the mother is evidently pregnant the distribution should be made after awaiting her delivery.
In Sabapathi v. Somasundaram (1882) 2 M.L.J. 244 : I.L.R. Mad. 76, an after-born son challenged an alienation made by his father at a time when he was in his mother's womb. Considering the question whether the right of a son to take objection to an alienation made by his father commenced from his birth or from the time of his conception it was held that under the Hindu law membership with the family should be considered as commencing with the time of conception. In Mandliprasad v. Ramcharanlal A.I.R. 1947 Nag. 848, it is observed that a son begotton but not born is equal in all respects to a son actually in existence except for the purpose of adoption. His membership in the family commences from the date of conception and he is entitled to sue for reopening a partition decree passed after his conception though it was before his birth. In Kusum Kumari Dasi v. Dasarathi Sinha A.I.R. 1921 Cal. 487 : 34 Cri.L.J. 323, Mukherjea, J., reviewed the law regarding the position of a child in embryo under the Hindu and other systems of law. That was a case where a man died leaving a widow who was' pregnant at the time of his death. A compromise between the widow and the daughter of the deceased was held liable to be set aside by the subsequently born son. In all the cases referred to above the after-born son was held entitled to the protection of his property rights which he was held to have acquired from the moment he was conceived by his mother by the application of the fiction that he should be deemed to have been in existence from that time. Thus decided cases only show that the application of the fiction is resorted to when it is necessary for the benefit of the child. In Kusum Kumari Dasi v. Dasarathi Sinha A.I.R. 1921 Cal. 487 : 34 C.L.J. 323, Mukherjea, J., observed:
But whatever difficulties may arise in the application of the principle, it is well-settled that an unborn child, though treated as born, when it is for its benefit to be so considered, is not ordinarily regarded as born for the benefit of third persons. (Italics not in the original). See Savigny, System, Article 62 (tr. Rattigan, p. 9; tr. Guenoux, II, p. 13) where he says: 'this fiction is universally restricted for the benefit of the child and no one else ought to be permitted to employ it for his own purposes'. See also Voet. Com. Book I, Tit. V, Article 5 (tr. Buchanan, p. 108), where it is pointed out that although those in the womb are considered as born whenever it is for their advantage, this fiction of law ceases if the advantage be not to those in the womb but to third persons. See further the judgment of Lord Chancellor Westbury in Blasson v. Blasson (1964) 2 De.G.J. & S. 665 : 34 L.J. Ch. 18, where it was said 'that the fiction or indulgence of the law which treats the unborn child as actually born applies only for the purose of enabling the unborn child to take a benefit which if born it would be entitled to, and that it is limited to cases where de commodis ipsius partus quaertitur'.
We are of opinion that the principle is no different under the Hindu Law. It is purely, by a fiction of law that an unborn son is deemed to be in existence under that system for the purpose of protecting his rights after he is born. That this fiction of law is not of universal application is clear from the fact that there are well recognised exceptions to it, e.g., (1) an unborn son could not be given in adoption to another and (2) a person can adopt a son to himself although his wife is pregnant at that time this he would be entitled to do even if he was aware of the pregnancy of his wife at the time of the adoption. A fiction in law is created for a particular purpose; it can be applied and used for that purpose alone and extended no further. If the fictitious existence of an unborn son is recognised in law for the protection of his proprietary rights, it cannot obviously be applied to a case where such rights are not imperilled or do not arise for consideration. Now the benefit of the fiction is claimed by the assessee for the determination of his status. No rights of his son are involved except in an indirect way namely that in case the assessment of an Hindu undivided family results in a reduced amount of tax, there would be a benefit to the family of which he would be a member. But looked at from a different point of view, it would only be a question of liability and not of any benefit and the legal fiction should not be made to apply. Apart from this aspect, the provisions of the Income-tax Act in our opinion do not warrant the importation of the fiction in its working. Section 2(2) defines 'assessee' as a person by whom income-tax or any other sum of money is payable, under the Act. Sub-section (9) of Section 2 states that the term 'person' includes a Hindu undivided family. Section 3, the charging section defines the category of persons liable to pay tax, for example, individual, Hindu undivided family, company, etc. The scheme of the Act is to assess tax with respect to profits earned in the year before. Therefore unless it can be held that the unborn child was even constructively in receipt of income during the period when he was in his mother's womb it cannot be said that there was a Hindu undivided family liable to be assessed on its income during that period. We have earlier pointed out that the fiction as to the existence of a child in its mother's womb is limited to protection of its rights. That fiction cannot therefore be extended so as to involve an idea of receipt of income by it during the period when it was in its mother's womb. Every taxing statute should be clear and without any scope for uncertainty in regard to its application or construction of its provisions. It is a recognised rule that a taxing enactment cannot be construed by resorting to fictions or analogies. Therefore no fiction could be applied for the purpose of defining the term 'Hindu undivided family' under the Act. To hold otherwise would lead to considerable difficulties and anomalies in the application of the Act.
2. Let us take an illustration: suppose a Hindu has been assessed as an individual and after the assessment is over, a son is born to him at a time from which it could be computed that the son was actually begotten sometime during the year of account. If the contention of the assessee were to be accepted, the entire assessment proceedings would be improper as the child should be deemed to be a member of a Hindu undivided family even during the time when it was in its mother's womb: the assessment will have to be set aside and a reassessment made on the appropriate units for the relevant periods during the year of account. But there is no provision in the Act for reopening the assessment. Then again if the child that is born is a female child there would be no coparcenary at all; the assessment would then be proper. If the argument of the assessee were to be accepted there could only be a conditional assessment whenever a sole surviving Hindu coparcener's wife is enceinte during the close of the year of account, it being valid if the child that is born is a female and invalid if male. In other words all assessments made before the actual birth of the child would be conditioned in its validity on there being no son born to the assessee. There is no warrant for such a conditional assessment under the Act.
3. In our opinion what is contemplated by the Income-tax Act by the term 'Hindu undivided family' is a family in its ordinary sense, namely, where there is more than one member in actual existence during the year of account. A son who has not come into existence will not be a member of the family for the purpose of levy and assessment of income-tax. We answer the question referred to us in the affirmative and against the assessee who will pay the costs of the Department; Advocates's fees: Rs. 250.