G. C. Mathur, J. - (1.) DHAN Singh res pondent No. 1, was the tenure-holder of a large area of land. A notice under Sec tion 10 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960, was served upon him. He filed objections claiming that his family consisted of seven members. He also claimed certain exemptions. By the time the objections came to be decided his family had increased to nine members and he claim ed that the ceiling area should be calculated on the basis of nine members in his family. The Prescribed Authority accepted his con tention and calculated the ceiling area at 64 acres, but in calculating the surplus area the Prescribed Authority committed some error. Dhan Singh preferred an appeal for correct ing the error in the calculation of the surplus area. In the appeal it was urged on behalf of the State Government that the child born subsequent to the coming into force of the Act could not be taken into account in cal culating the members of the family. This contention was accepted by the Appellate Authority and it held that on the date the Act came into force, which is the relevant date, the family consisted of only seven members and was, therefore, entitled to a ceiling area of 56 acres only. It further held that the surplus area calculated on this basis came to something more than what had been declared by the Prescribed Authority and, therefore, Dhan Singh was not really aggrieved by the order of the Prescribed Au thority. It, accordingly dismissed the appeal. Thereupon a writ petition was filed before this Court.
(2.) IT appears that out of the two chil dren born after the coming into force of the Act, one was a son who was in embryo on the date the Act came into force. It was urged before the learned Single Judge that this son should be deemed to have been in existence on the date the Act came into force and should be taken into account in deter mining the family. The learned Single Judge accepted this contention and held that a child in the womb was a child in existence on the date the Act came into force. He, accordingly, held that the family consisted of eight members and was entitled to a ceil ing area of 64 acres. On this basis the sur plus area was found to have been wrongly calculated and the learned Single Judge re manded the case to the Appellate Authority for correction of the mistake. The State Government has now preferred this appeal against the judgment of the learned Single Judge. The only question which arises for determination in this appeal is whether a child who was born after the Act came into force, but who was in embryo on that date, can be treated to be a child in existence on the date. The learned Standing Counsel has relied upon the decision of a Division Bench of this Court in State v. District Judge. 1964 All LJ 558 = (AIR 1964 All 451). The facts of this case are identical to the facts of the case before us. In this case the family of the tenure-holder consisted of five mem bers, but a son was born in February, 1961, increasing the number to six. It was held by the Division Bench that the relevant date for determining the ceiling area was the date of the enforcement of the Act (January 3, 1961) and, therefore, a son born after this date could not be taken into account in determin ing the number of the members of the fami ly. Since the son in this case was born in February, 1961, it is obvious that he was in embryo on the date the Act came into force and still the Division Bench held that he could not be treated as a member of the family for purposes of calculating the ceiling area. Learned Counsel for the contesting respondents has contended that the specific question whether a child in embryo on the date the Act came into force should be deemed to be a child in existence on that date was not raised or decided in this case.
(3.) HOW the ceiling area is to be cal culated is set down in Section 4 of the Act. The relevant part of sub- section (2) of Sec tion 4 with which we are concerned reads thus:- "2 (a) The ceiling area of a tenure-hol der shall be forty acres of Fair Quality Land. (b) Where the tenure-holder has, or con sists of a family having more than five mem bers, the ceiling area of such tenure-holder shall be the area mentioned in clause (a) together with eight acres of Fair Quality Land for every additional member of the family, subject to a maximum of twenty-four such acres." Clause (c) of Section 3 defines a family and enumerates the relations who are to be in cluded in the family. Sub-clause (iii) refer to "son and son's son, as long as they are unseparated from the holder. Therefore, what is to be seen is as to how many mem bers were there in the family of the tenure holder Dhan Singh on January 3, 1961, Members have to belong to one of the clas ses enumerated in the definition of the family. The question is whether the son who was in embryo on January 3, 1961 can also be deem ed to have been in existence on that date and to constitute a member of the family. The doctrine deeming a son in embryo to be in existence on a date prior to the date of his actual birth has been applied to rights of inheritance and succession and to rights incidental to these rights such as the right to partition and the right to challenge alienat ions made by the Karta of a joint Hindu family. In Ram Dayal v. Bhim Sen, 1965 All LJ 1142 this doctrine was applied to succession under Section 35 of the U. P. Tenancy Act. It was held that a daughter's son who was in womb at the death of his maternal grand-father or his widow would be deemed to have been in existence at the time of their death and would inherit the letter's tenancy. The Bench which decided this case observed that according to all civilised sys tems of jurisprudence a child in embryo at the death of the holder of a proprietary inte rest, if born alive after his death, is deemed to be living at his death. There are deci sions, to which it is unnecessary to make a reference, holding that a Hindu son born subsequently is competent to contest aliena tions made by the father when the son was in his mother's womb. But the doctrine is not of general or universal application. In Guramma v. Malappa, AIR 1964 SC 510 the Supreme Court held that the doctrine could not be applied to adoption. It was held that the existence of a son in embryo, of a co- widow does not invalidate the adoption made by the widow and that the son in embryo, even though born alive subsequently, could not be deemed to have been in existence at the time of the adoption. In T. S. Srinivasan v. Commr. of Income-tax, AIR 1966 SC 984 the Supreme Court held that the doctrine could not be applied to tax matters. It was held that the doctrine that a Hindu undivid ed family comes into existence from the date a son is conceived is not of universal appli cation and it is applied mainly for the pur pose of determining rights to property and safeguarding such rights of the son. The doctrine has been applied in cases where such a son would acquire some right of property if he were deemed to have been in existence on some date prior to the date of his actual birth. In the present case since Dhan Singh is the tenure-holder, his son who was con ceived on the date the Act came into force and was born alive subsequently would not acquire any right in the holdings even if he were deemed to have been in existence on 3-1-1961. The holding continues to be that of Dhan Singh. The only effect of deeming this son to have been in existence on 3-1-1961 would be that Dhan Singh would be entitled to retain a little more land in his ceiling area. But the application of the doctrine would not confer any direct right or benefit on the son. Therefore, the non-ap plication of the doctrine and non-recogni tion of the existence of the son on 3-1-1961 will not affect any right of the son. The doctrine cannot be invoked or applied merely to confer some benefit on the father. We have not been referred to any case where the doctrine has been applied to cases where rights of inheritance and succession and rights incidental to these rights are not in volved. We are of opinion that the doctrine cannot be invoked in determining ceiling area of a tenure-holder under the Act. This is also implied by the decision of the Division Bench of this Court which decided the case State v. District Judge.;