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Judgment
Satyanarayana Rao, J.—The short question that is raised in this reference is whether the word ""child"" occurring in Section 16 (3) (a),
Income Tax Act includes also an illegitimate child. The question as formulated by the tribunal and referred to us is in these terms:
Whether the sum of Rs. 7236 the share income of Thyagarajan, the minor illegitimate son of the assessee, is liable to be included in the total
income of the assessee u/s 16 (3) (a) (ii), Income Tax Act.
The assessee is a partner in a firm styled Rajasundaram Chetty and Sons, Madras. He has two minor children, Kalyanasundaram, a legitimate son
and Thyagarajan, an illegitimate child.
Both were admitted to the benefits of the partnership and the partnership itself was registered u/s 26-A, Income Tax Act. During the accounting
year ending with March 1945, the profits of the firm credited in the accounts were Rs. 308 to Kalyanasundaram and Rs. 7236 to Thyagarajan.
During the assessment year 1945-46, the Income Tax Officer added these amounts to the total income of Rajasundaram Chetty, the assessee, i.e.,
the father, for the purpose of assessment u/s 16 (3) (a) (ii) of the Act. The assessee did not dispute the addition of the sum of Rs. 308 representing
the profits of Kalyanasundaram in his total income but objected to the inclusion of the sum of Rs. 7236 representing the profits of Thyagarajau and
credited in his accounts.
The Income Tax authorities relied upon the provision in Section 16 (3) (a) of the Act to justify the inclusion of the sum of Rs. 7,236 on the
ground that the word ""child"" in that section comprised within it also an illegitimate child, but this view was not accepted by the appellate tribunal
which upheld the contention of the assessee and excluded the sum of Rs. 7,236 from the total income of Rajasundaram Chetty for the assessment
year.
The only question that arises for decision, therefore, is whether the illegitimate child Thyagarajan can properly be described as ""child"" within the
meaning of Section 16 (3) (a) of the Act to uphold the inclusion of the sum of Rs. 7,236. The word ""child"" is not defined either in the Income Tax
Act or the General Clauses Act. As pointed out by Denman C. J. in the case in the Queen v. Totle, (1845) 7 Q. B. 596 : 115 E. R. 614,
the law does not contemplate illegitimacy. The proper description of a legitimate child is ""child."" Prima facie, therefore, the word ""child"" must be
interpreted to mean a legitimate child unless there is something in the subject or context to indicate that the contrary is intended by the use of the
word in the statute. The same rule of construction has been applied also in the case of wills. It has been stated by Pollock C. B. in Diekinson v.
The North Eastern Railway Co., (1863) 2 H. & C. 735 : 159 E. R. 304 that beyond all doubt in the construction of this Act of Parliament the
word ""child"" means legitimate child only.
He also adverts to the rule of construction applicable to wills as laid down by Hawkins which is: ""A gift to children means legitimate children only,
unless it appears, from the context or from circumstances, that illegitimate children must have been intended.
These principles of interpretation have been lucidly summarised in Lord Hailaham''s Halsbury''s Laws of England, Vol. 17, 2nd Edn., p. 688 in
these terms :
In the absence of a contrary intention either expressed or deducible by necessary inference, all provisions repeating ''children'' contained in any
laws or instruments having a legal operation, refer exclusively to legitimate children.
In support of this statement of the law, the learned author refers to the statement of Denman C. J. already quoted and the observations of Pollock
C. J. in Dickinson''s case, (1863) 2 H. & C. 735: 159 E. R. 304. Applying these principles one is not able to find anything to indicate a contrary
intention in the statute now under consideration; nor are there any circumstances which compel us to infer that the Legislature did not intend by the
use of the word ''child'' to convey its prima facie meaning, viz., legitimate child. On the other hand, the use of the word in juxtaposition with the
words ''wife, occurring in the same sub-clause seems to indicate that it is only the legitimate relations that have been intended to be covered by the
language of the section.
There are also other authorities to which our attention was drawn in the course of the arguments before us; but it is unnecessary to refer to all of
them except the decision of a single Judge reported in Morris v. Brittanic Assurance Co., Ltd., (1931) 2 K. B. 125 : 100 L. J. K. B. 263. In that
case no doubt having regard to the circumstances and taking into consideration the object of the statute the learned Judge inferred that the word
''child"" was used so as to include also an illegitimate child. The general rule, however, was adverted to at p. 131 of the report quoting from the
judgment of Williams L. J. in Gurdians of Woolwich Union v Guardians Fulham, (1906) 2 K B 240, where the learned Lord stated.
He (the appellant''s counsel) relied for the purpose of that argument upon the technical rule of law that the word ''child'' or ''children'' means a
legitimate child or legitimate children, and that meaning must prima facie be given to the word whenever if occurs in a statute. It is, of course, true
that that is only prima facie meaning to be given to the word, and that a wider meaning may, in the case of some statutes, be given to it, so as to
include an illegitimate child or illegitimate children, where the meaning is more consonant with the object of the statute.
After quoting this passage, the learned Judge who decided the case in Morris v. Brittanic Assurance Co., Ltd. (1931) 2 K. B. 125: 100 L. J. K.
B. 263 proceeded to consider the object of the statute which he was then considering, namely, the Industrial Assurance Act, 1923 (13 & 14 Geo.
v), Clause 8, Section 3, was intended to benefit not only the legitimate children but the illegitimate as well. Having regard, therefore, to the purpose
of the legislation and the context the learned Judge concluded that the word ""child"" had a wider meaning and included an illegitimate child as well as
a legitimate child.
Under the Income Tax Act we do not see anything in the object to deviate from the accepted rule of construction of the word in the statute as
summarised in Halsbury''s Laws of England, Vol. 17, and we must, therefore hold that the word ""child"" is used in its natural sense of legitimate
child and does not include an illegitimate child.
The answer, therefore to the question referred to us must be in the negative and in favour of the assessee. The assessee is entitled to his costs
which is fixed at Rs. 250.
Viswanatha Sastri J.--As the matter is one of first impression, I should like to add a few words of my own. Whether you have to construe a will
or deed or the language of a statute, the word ""child"" taken simpliciter means a legitimate child; but this meaning can be qualified or extended by
other suitable words or by the context or by the object and purpose of the statute or document in which the expression occurs. It may be that the
position and status of a testator could be looked into in order to find out whether by the use of the general word ""children"" he intended to include
illegitimate children also; but there must be some indication in the document if illegitimate children are also to be included within the expression
child"" or ""children."" Similarly with reference to statutes as pointed out in the passage from Halsbury''s Laws of England cited in the judgment of my
learned brother the term ""children"" would prima facie mean legitimate children, but a consideration of the object and purpose of the statute or the
context in which the expression occurs, may control or expand the meaning of the word ""children"" so as to include illegitimate children. The prima
facie meaning, however, of the word ""child"" is a ""legitimate child"" both according to English law and Section 100, Indian Succession Act. It is usual
to find the legislature using the words ""legitimate or illegitimate"" with reference to children, whenever the expression ""children"" is intended to be
used in a comprehensive sense so as to include both legitimate and illegitimate offspring. An example of this will be found in Section 488, Criminal
P. C. It must be remembered that Section 16 (3) (a), Income Tax Act, is an enactment applicable to all persons irrespective of their faith or
religion. The fact that amongst Sudras, illegitimate sons get a share of the inheritance on the death of the putative father, will not entitle the Court to
introduce that consideration in interpreting the word ""child"" in Section 16 (3) (a) of the Act which applies to Hindus as well as to Christians,
Muhammadans and members of other communities. There must be one uniform interpretation with reference to all the persons to whom the Act
applies. In my opinion, therefore, the word ""child"" in Section 16 (3) (a) must be construed according to its prima facie meaning of a legitimate child,
there being nothing in the context or object of the statute which would point in a contrary direction. I agree in the answer to the reference given by
my learned brother and in the direction for costs.