TMI Blog1961 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 December 11, 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 assessee'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, December 11, 1952. From December 11, 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... none the less a real and present ownership. A man may settle property upon his wife and the children to be born of her. Or he may die intestate, and his unborn child will inherit his estate A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus 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 person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nception it was held that under the Hindu law membership with the family should be considered as commencing with the time of conception. In Mandli Prasad Ramcharanlal v. Ramcharanlal ILR [1947] Nag. 848, it is observed that a son begotten 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 AIR 1921 Cal. 487, Mookerjee 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 existe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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