Judgment :- 1. Plaintiffs in a suit for partition are the appellants in the second appeal. The simple but delicate and interesting question that poses for consideration is whether a child 'en ventre sa mere' is entitled to a share. 2. Parties were marumakkathayees. Suit is for partition of thavazhi properties. There are four plaintiffs and fourteen defendants. By operation of the provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976), here-in-after referred to as 'Act 30 of 1976', which came into force on 1-12-1976, with effect from that day the parties are deemed to hold the properties as ten ants-in-common as if a partition of the properties per capita had taken place among all the members of the family living on 1-12-1976. Fourth plaintiff was conceived and born after 1-12-1976 and hence no share was claimed. Plaintiff claimed only three out of 17 shares. Plaintiffs 2 and 3 are children of the first plaintiff. Third plaintiff was conceived before 1-12-1976 but born only on 20-6-1977. That is the finding of both the courts below. Claim of the third plaintiff for share was disputed by the defendants and the contention was accepted by both the courts, though for different reasons. Plaintiffs 1 and 2 alone were given shares. Claim in the second appeal is for getting the share of the third plaintiff. 3. Trial court refused share to the third plaintiff simply on the basis of S.3 of Act 30 of 1976 which reads: 'Birth in family not to give rise to rights in property: On and after the commencement of this Act, no right to claim any interest in any property of an ancestor during his or her life-time which is founded on the mere fact that the claimant was born in the family of the ancestor shall be recognised in any court." Appellate court was of the view that S.3 is intended entirely for different purposes, but is useful in interpreting the subsequent provisions. In con firming the finding the appellate judge relied on S.4 and 7 and the decision of the Supreme Court of India in Mathew v. Taluk Land Board (1979 KLT. 601). I am of the view that both the courts below went wrong in this respect. 4. In con firming the finding the appellate judge relied on S.4 and 7 and the decision of the Supreme Court of India in Mathew v. Taluk Land Board (1979 KLT. 601). I am of the view that both the courts below went wrong in this respect. 4. It is true that 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 Hindu Law recognised a child en ventre sa mere as a child in existence. A child in the womb of the mother at the time of partition but born subsequently, if denied share, had the right to reopen the partition. That means a child known at the time of partition to have been conceived but not born at that time was recognised by the Hindu Law to be entitled to share. This is on account of the right by birth in ancestral properties. Ownership of wealth is acquired by birth alone and it was recognised by texts on Hindu Law as meaning that by the very formation of the foetus in the mother's womb it becomes entitled to share. Under Hindu Law a posthumous son was entitled to succeed to the father or claim share in the joint family property. It may be necessary that the child must have subsequently born alive. But acquisition of right will be from the moment of conception and not from the moment of birth. Subsequent birth of a live child is relevant not for the acquisition of right but only for the investiture of the right. Under Hindu Law a child is presumed to come into existence from the moment it is conceived. If such a child is not provided with share at the partition be is entitled to reopen the partition and get a share after his birth. Even though the child was only conceived before partition and born only after partition it will be presumed that he was in existence at the time of partition. This is because of the legal fiction in Hindu Law that son in the womb is in existence. In marumakkathayam system also the position is the same because birth right is the order in that system also with the difference that descend is traced through the female. This is because of the legal fiction in Hindu Law that son in the womb is in existence. In marumakkathayam system also the position is the same because birth right is the order in that system also with the difference that descend is traced through the female. The right of the child in the womb to get share is recognised in marumakkathayam system also. Survivorship and birth right were the incidents in both systems. 5. In the decision in De Pass v. Sonnenthal (1908(1) Chancery Division 4, it was accepted that a child living' or 'born' at a given period includes a child en ventre sa mere at that date, and born afterwards. 6. Before 1-12-1976 on which date Act 30 of 1976 came into force a child in the womb of a marumakkathayee female at the time of partition was entitled to get a share. The question is whether the right of such a child who was in the womb of the mother on 1-12-1976 and born alive subsequently is taken away by the provisions of Act 30 of 1976. Both the courts below found that third appellant was in the womb on 1-12-1976 but held that he has no right. The definition of joint family in S.2 of Act 30 of 1976 includes a tarwad or thavazhi also. What is negatived under S.3 is only the right to claim birthright in ancestral property during the life time of the ancestor or ancestress. S.3 has no relevance at all for our purpose because there is no question of claiming birth right in the property of an ancestor during his lifetime. Here the properties are thavazhi properties. Regarding thavazhi properties it is undisputed that every new born member was having birth right. The question of an ancestor or ancestress living is irrelevant in such cases. Devolution was by succession and not inheritance. In thavazhi properties birth right continued so long as the thavazhi continued and it came to an end only when tenancy-in-common came into being by operation of S.4. 7. The District Judge relied on S.4 and 7 of Act 30 of 1976 also. Devolution was by succession and not inheritance. In thavazhi properties birth right continued so long as the thavazhi continued and it came to an end only when tenancy-in-common came into being by operation of S.4. 7. The District Judge relied on S.4 and 7 of Act 30 of 1976 also. S.4 reads: "(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof: Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately and any such right can be enforced as if this Act had not been passed (2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (I), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof". S. 7 reads: "(1) Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. S. 7 reads: "(1) Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. (2) The Acts mentioned in the schedule, in so far as they apply to the whole or any part of the State of Kerala, are hereby repealed" The learned District Judge considered S.3, 4 and 7 together and said that while S.3 has done away with a practice following an interpretation of Hindu Law as it existed prior to the advent of the new Act and S.4 replaced joint tenancy by tenancy-in-common, S.7 wholly obliterated all text, rule or interpretation of Hindu Law or any custom or usage as part of their law in force immediately before the commencement of Act 30 of 1976. The ultimate finding of the District Judge is that the repeal by S.7 must have the effect of taking away the rule of en ventre sa mere also with effect from 1-12-1976. That proposition need not be disputed because after joint tenancy has been converted into tenancy-in-common there will be no question of any future birth right and hence there will be no question of any child in the womb getting share. After tenancy-in-common came into existence, devolution is only by inheritance because each co-owner is having a definite share. Birth or death thereafter will not affect their shares. Rights of new born children also will be only by, inheritance, if any, and not by succession or birth right. 8. But what S.4(2) says is only that all members of a joint Hindu family (which includes a tarwad or tavazhi also) holding any joint family property on 1-12-1976, shall, with effect from that day. be deemed to hold it as tenants-in-common, as if a partition per capita of such property had taken place among all the members of the family living on that day. The words "living on the day aforesaid" cannot be assigned any particular significance. A child in the womb was also 'living' according to the legal fiction which existed at that time for the limited purposes. The words "living on the day aforesaid" cannot be assigned any particular significance. A child in the womb was also 'living' according to the legal fiction which existed at that time for the limited purposes. What is introduced by that provision is a fiction of a notional partition among the persons who were joint tenants till then. It is by the fiction of this notional partition that the concept of tenancy-in-common was introduced by which each person entitled to a joint right was considered to have distinct and separate rights with the only difference that it is not divided by metes and bounds. Tenancy-in-comenon is the result of that notional partition and it comes into being only after the notional partition. The notional partition is among joint tenants and this is clear from the words "whether such members were entitled to claim such partition or not under the law applicable to them". These words will be meaningless if the concept of notional partition is only after conversion into tenancy-in-common. So also if that was the contingency the subsequent words "as if each one of the members is holding his or her share separately as full owner thereof" were unnecessary because such a fiction is not necessary if the partition is between tenants-in-common. Therefore the notional partition contemplated in the section by which the conversion into tenancy-in-common is created is between joint tenants. Then the question is who are all entitled to share in that notional partition. For the purpose of the notional partition the word used is 'family' which includes tharwad or thavazhi and which is a joint tenancy. For the purpose of that notional partition we will have to ignore completely the provisions of S.3 and 7 and consider that it is a partition in the family by which all those who were entitled to get shares irrespective of the provisions of Act 30 of 1976 would have got shares. In such a partition a child in the womb who would have otherwise had birth right will definitely get share. That child was subsequently born and it is still alive. By the law that existed on or before 1-12-1976 that child would have undoubtedly been entitled to get a share. There is nothing in S.3, 4 and 7 taking away the right of the child who was already in the womb. That child was subsequently born and it is still alive. By the law that existed on or before 1-12-1976 that child would have undoubtedly been entitled to get a share. There is nothing in S.3, 4 and 7 taking away the right of the child who was already in the womb. The tenancy in common is created and brought into existence under S.4 only by such a notional partition and therefore the child in the womb who was born alive subsequently is also a co-owner in the tenancy-in-common. Sub-section (1) of S.4 deals with Hindu undivided family governed by Mitakshara law and sub-section (2) deals with other joint Hindu families including tharwad and thavazhi. 9. The District Judge says that all the rights exercisable by a living member such as claiming partition, maintenance, right of residence etc. cannot be done by a child in the womb and therefore such a child cannot be entitled to share. So also it is said that the child in the womb cannot be said to be 'living' and the word 'living' in S.4 qualified the words "member of the family". These questions arose for consideration by the District Judge only because he did not accept the fact that the notional partition contemplated in S.4 is one in the family by which undoubtedly the child in the womb was also entitled to get a share. The proposition that in a partition in a marumakkathayam tarwad or thavazhi a child in the womb was entitled to get share was not disputed before me. As on the data of notional partition contemplated in S.4 according to the law as then existed a child in the womb was considered as a child in existence entitled to get a share though investiture of right was conditional on the subsequent birth of the child alive. 10. Then what remains for consideration is only the argument based on the decision in Balakrishna Kurup v. State of Kerala and another (1976 KLT 421) and the Supreme Court decision in Mathew's case (1979 KLT 601), Both the decisions were only considering the question of ceiling area in the case of a family under the Kerala Land Reforms Act (hereinafter referred to as 'the Act') with reference to the definition of family in S.2(14) and definition of minor in S.2(36A). Family as defined in the Act means husband, wife and their unmarried minor children or such of (hem as exist. Minor is defined as a person who has not attained the age of 18 years. S.82(1) fixed the ceiling area in the case of families consisting of different number of members. Mathew & another v. Taluk Land Board (1979 KLT. 601) said: Clause.(c) of sub-s. (1) of S.82 of the Act provides that in the case of a family consisting of more than five members, the ceiling area of the land shall be ten standard acres increased by one standard acre for each member in excess of five, subject to the limit prescribed by the clause. The expression "family" has been defined in clause (14) of S 12 And the expression'minor" has been defined by clause (36A) to mean a person who has not attained the age of eighteen years'. So two postulates are necessary for obtaining the benefit of the increase of one standard acre for each member of the family in excess of five, namely, that the member should be in existence, and it should be possible to ascertain that he had not attained the age of eighteen years on the appointed date. Bath these conditions cannot be said to exist in the case of a child en ventre sa mere and it will not therefore be regarded as a member of the family for purposes of S.82. We are aware that a child en ventre sa mere has been regarded in some legal systems as a person "in being" for the purpose of acquisition of property by the child itself, particularly in regard to gifts, but S.82 of the Act with which we are concerned does not deal with any such contingency or benefit to the unbar child". That was the self-same principle laid down in the other decision also. 11. Two conditions are necessary under the Act for obtaining the benefit of the increase of one standard acre for each member of the family in excess of five. They are (1) the member should be in existence, and (2) he did not attain the age of 18 on the appointed day. 11. Two conditions are necessary under the Act for obtaining the benefit of the increase of one standard acre for each member of the family in excess of five. They are (1) the member should be in existence, and (2) he did not attain the age of 18 on the appointed day. The Supreme Court said that these two conditions did not exist in the case of a child in the womb and thereafter such a child cannot be considered as a member of the family for the purpose of S.82. The principle of benefit to the unborn child recognised by Hindu Law was not accepted in that case because such a question did not arise there. The provisions of S.82 of the Act are not intended to confer rights on any member of the family by partition or otherwise. So also it was not intended to divest ownership from one member and vest it in another member of the family. The provision was intended only to determine the ceiling and for that purpose to decide the extent to be held by an individual in considering the area that could be held by an artificial unit. The family as defined in that Act is not a natural group. Along with the husband and wife the only other members permitted are unmarried children who did not attain the age of 18 or such of them as exist. That means the children who could be included are those who are born and alive and did not attain majority. It was held that age could be reckoned only after birth and child not yet born cannot come within the ambit. In a case coming under S. 82 there is no question of any unborn child inheriting or loosing share. It was with particular reference to the definition of family in S.2(14) of the Act and also on account of the fact that S.82 does not involve any question of succession or inheritance that the decisions laid down that a child in the womb will not come within the definition of family for reckoning the ceiling area. Those principles have no application to the case in hand. 12. Those principles have no application to the case in hand. 12. In the case before me the question at issue directly is whether the unborn child who was conceived at a time when joint tenancy was in existence and before it was converted into tenancy-in-common is entitled to share. The answer must definitely be in the affirmative for the reasons discussed by roe earlier. The second appeal is therefore allowed and the preliminary decree confirmed by the appellate court is modified by granting share to the third appellant (third plaintiff) also. That will involve consequent modification in the share of all to the extent necessary for accommodating the share of. third plaintiff. In the circumstances parties wilt bear their costs before this Court. Trial court will proceed to pass final decree as and when moved for that purpose.