The central legal point established in the judgment is the entitlement of a child 'en ventre sa mere' to share in ancestral properties under the Kerala Joint Hindu Family System (Abolition) Act, 1975, based on Hindu Law principles and the notional partition concept under S.4 of the Act.

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. 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. The right of th