Mookerjee, J.:— The subject-matter of the litigation which has led up to these two appeals is the estate left by one Premchand Sinha, who died on the 21st November, 1900. He had married twice. By his first wife, Nrityamoyee, who died in his life-time, he had a daughter, Kusum Kumari, who had been already married and had a son, Haripada by name. By his second wife, Katyayini, he had a daughter, Subhasini, who was born on the 3rd June, 1899. His second wife was pregnant at the time of his death and gave birth to a posthumous son on the 18th May, 1901, who was subsequently named Dasarathi. The relationship of the parties is set out in the following genealogical table:—
2. Differences arose after the death of Premchand Sinha between his widow and her step-daughter as to the title to properties which stood in the name of the daughter, but which it was alleged by the widow, really formed part of the estate left by her husband and was held by the daughter only as ostensible owner.
3. Ultimately, a deed of relinquishment was executed on the 2nd May, 1901, between the widow and her step-daughter. On the 20th November, 1915, the posthumous son represented by his sister as next friend, commenced this litigation for declaration of his title to all the properties left by his father and for recovery of possession with mesne profits. The claim rested on the hypothesis that the posthumous son was not bound by the settlement which had been effected a few days before his birth between his mother and his step-sister, on the assumption that his mother was entitled to the interest of a Hindu widow in the estate and her step-sister was one of the next reversioners. The claim was resisted by the step-sister, who was the first defendant, and by a purchaser at a sale in execution of a decree for arrears of rent, who was joined as the second defendant. The Court of first instance dismissed the suit on the ground that the plaintiff was bound by the deed of relinquishment. On appeal, the Subordinate Judge has taken the contrary view and has remanded the suit for investigation of the other points in controversy between the parties. The step-daughter and the execution-purchaser have preferred separate appeals. The substantial question which arises for consideration in these appeals is, whether the posthumous son is bound by the deed of relinquishment between his mother and step-sister, executed shortly before his birth.
4. The position of a posthumous son has not escaped the attention of authoritative writers on Hindu jurisprudence. Indeed, at one time, his rights were so much respected that when a son born after a partition had taken place between a father and his sons, the partition was opened up again in order to give him the share, which he would have had, if he had then been alive; Vishnu XVIII. 3; Yajnavalkya II. 122. Reference may in this connection be made to Krishna v. Sami (1); Narasimha v. Veerabhadra (2); and Rai Bishen Chand v. Asmaida Kuwar (3). Jimutavahana went so far as to hold that the rule was still applicable where the property to be distributed was inherited from the grandfather; because distribution of such property was illegal so long as the mother was capable of bearing children, and, consequently, the rights of an after born child could not be prejudiced by the illegal act. Dayabhaga 1-45, VII. 10, Raghunandan 11-30, 31-36. This extreme view however is obsolete, and other writers, such as, Manu IX-9, 216; Gautama XXVIII-26; and Narada XIII-44, hold that a son born after a partition could only take his father's share, representing him to the exclusion of the previously divided brethren: Nawal v. Bhagwan (4). Vijnaneswara reconciles this conflict of opinion, holding that the latter texts lay down the general rule, while the former are limited to the case of a son, who was in his mother's womb at the time of partition. Jimutavahana takes the same view in cases where the partition is made, by the father, of his self-acquired property. Consequently, in all cases where the number of sons would add to the number of sharers, if the pregnancy be known at the time, the distribution should be deferred till its result is ascertained; if it is not known and a son is after wards born, a redistribution must take place of the estate as it then stands. Mitakshara 1-6, 1-12; Dayabhaga VII-4: Yekeyamian v. Agniswarian (5); Kalidas v. Krishan (6). If the father had divided the whole property among his sons, retaining no share for himself, it is said that the sons with whom partition has been made must allot, from their shares, a portion equal to their own, to an after born son, on the principle that the unborn son cannot be deprived of his share in the paternal estate by a prior partition; Vishnu as quoted by Jagannath, Cole-broke Book II 268: Chengama v. Munisami (7). The application of this principle is expressly limited to the case of partition between father and sons and is not extended to a son born to a separate co-parcener other than the father, of the family after partition. The texts cited are applicable only to the case of the son en ventre sa mere at the date of partition: Ganapat v. Gopalrao (8); Shivajirao v. Vasantrao (9).
5. The anxiety thus evinced for the protection of the unborn son is reflected in the rules recognised in cases of succession. The right of succession, under Hindu Law, is a right which vests immediately on the death of the owner of the property, and cannot, under any circumstances, remain in abeyance in expectation of the birth of a preferable heir. To this fundamental rule, there is an apparent exception in the case of a child already conceived and in the womb of its mother, and it is well-settled that a child, who is in the mother's womb at the time of the death is, in contemplation of law, actually existing and will on his birth devest the estate of any person with a title inferior to his own, who has taken in the meantime: see Lakhi v. Bhairab (10); Keshub v. Bishnu Persaud (11); Berojali v. Nubokissen (12); Kalidas v. Krishan ; Tagore v. Tagore (13).
6. The favoured position which a child in embryo thus occupies under the Hindu Law in respect of partition and succession is by no means singular, for whatever may have been the law in early times, it is a rule generally adopted in mature systems of jurisprudence that a child in embryo is to be considered as born, when it will be for its benefit so to be considered, although the question is not free from metaphysical difficulties whatever view we may accept on the subject. In the Roman Law, existence was, for certain purposes, assumed to begin before birth. Thus, although upon the authority of Ulpian (Dig. 25, 4, 1, 1): “The fruit of the body before it is born is part of the mother or the womb,” and natural capacity for rights begins with the birth of men, that is, the complete separation of a living human being from the mother. Paul points out the ways in which the embryo in the mother's womb is recognized by law: “Attention is bestowed upon that which is in the womb, just the same as if it had come to life, whenever a question arises as to the embryo's own privileges, although in no way benefiting another before it is born.” Dig 1, 5, 7. “Our speaking of him whose birth is anticipated as though he were in existence, is correct when the question is as to his own right.” Dig, 50,16,231. “The ancients paid regard to the child in the womb in such way that they maintained all rights in its favour intact until the time of birth, as may be seen in the law of inheritance.” Dig. 5, 4, 3. See Markby's Jurisprudence 132; Holland's Jurisprudence, p. 83; Sohm's Institutes (Ledlie), Article 20; Savigny System, Article 52; Mackeldy's Roman Law (Dropsie), Article 669; Salkowski Roman Law (Whitfield) Article 32; Goudsmit Pandects (Gould) Article 21; Thibaut Jurisprudence (Lindley) Article 103, and a valuable note thereon in the Appendix by the learned translator. Similarly, under the English Law, as Sir William Blackstone puts it “an infant in ventre samere is supposed to be born for many purposes; it is capable of having a legacy or a surrender of a copyhold estate made to it; it may have an estate assigned to it and it is enabled to have an estate limited to its use and to take afterwards by such limitation as if it were then actually born; Commentaries, Vol. I, 130: Clarke v. Clarke (14). That questions of considerable nicety may arise in the application of this doctrine to unforeseen combinations of events may be conceded, and one of the most curious cases in the books is probably that of Walker v. G.N.R Co. (15), where the question of the liability of a carrier of passengers for injury to an unborn child came under consideration. But whatever difficulties may arise in the application of the principle, it is well-settled that an unborn child, though treated as born, when it is for its benefit to be so considered, is not ordinarily regarded as born for the benefit of third persons. See Savigny, System, Article 62 (tr. Rattigan, p. 9; tr. Guenoux, II, p. 13) where he says: “This fiction is universally restricted for the benefit of the child, and no one else ought to be permitted to employ it for his own purposes.” See also Voet. Com. Book I, Tit. V, Article 5 (tr. Buchanan, p. 108), where it is pointed out that although those in the womb are considered as born, whenever it is for their advantage, this fiction of law ceases, if the advantage be not to those in the womb, but to third persons. See further the judgment of Lord Chancellor West-bury in Blasson v. Blasson (16) where it was said “that the fiction or indulgence of the law, which treats the unborn child as actually born, applies only for the purpose of enabling the unborn child to take a benefit which if born it would be entitled to, and that it is limited to cases where de comnwdis ipsius partus quaertitur.” Lord Chancellor Hardwicke, however, in Wallis v. Hodson (17), while noticing that the Civil Law confined the rule to cases in which it was for the benefit of the child to be considered as born, stated broadly the rule to be that such child was to be considered living to all intents and purposes. On these principles, we must regard it as well-settled that the title of the posthumous son must be deemed to relate back to the time of death of his father.
7. Reference has been made in the course of argument to the analogy of an adopted son who also, by a well-recognized fiction of law, enjoys, for many purposes, the rights and privileges to which he would have been entitled, if he had been in actual existence at the time of the death of the father; Tarinee v. Bamun Das (18); Bamundoss v. Tarinee (19). No useful purpose is likely to be achieved, however, by an endeavour to assimilate and to establish a complete analogy between the legal fictions applicable to cases of a posthumous son and an adopted son, as is well-illustrated by the futile attempt made in the case of Tarinee v. Bamun Das to maintain the fanciful argument that a widow authorised to adopt a son was in a state of constructive pregnancy. As was ruled by this Court in Harek Chand v. Bijoy Chand (20), the title of a son adopted by a widow under authority from her husband does not relate back to the death of the husband, and when the adoption has taken place his fictitious birth in the new family cannot be antedated for all purposes. See also Raghunadha v. Brozo Kishore (21); Bhubaneswari v. Nilcomul (22); Faizuddin v. Tincowri (23); Lakshmana v. Lakshmi (24); Hanmant v. Bhimacharya (25). Consequently, we need not review the decisions which deal with the question, how far the adopted son may dispute the previous acts of the widow. There has been much divergence of judicial opinion on that subject, as is clear from the decisions in Lakshman v. Radhabai (26); Moro v. Balaji (27); Ramakyiskna v. Tripurabai (28); Ramkrishna v. Tripurabai (29) and Sreeramulu v. Kristamma (30); the case last mentioned has now been overruled by a Full Bench in Vaidyanatha v. Savitri (31). The result of the authorities as they now stand appears to be that an alienation made by the widow for legal necessity before adoption is valid and will bind the adopted son; but an alienation made without such necessity is good only up to the date of adoption; after that date, the alienee has no power to retain the property as against the adopted son and must deliver it to him. The rights of the adopted son are, for this purpose, deemed to spring into existence at the moment of his adoption and displace the rights of the widow; they do not await the determination of the widow's estate by her death as in the case of reversioners.
8. We are of opinion that the rights of the posthumous son in the case of a disposition of the estate by his mother before his birth should be determined on the analogy of his rights in the event of a partition before his birth. This view is not opposed to the decision in Gowa Chwdhrain v. Chummun Chowdvy (32). In that case it was ruled that proprietary right is created by birth and not by conception; so that a child in the womb takes no estate; where, when the succession Opens out, a female member of the family has conceived, the inheritance remains in abeyance until the result of the conception can be ascertained; if the child be stillborn, the estate goes not to her heir but to the heir of the last owner. It must further be observed that the deed of compromise which was challenged by the posthumous son in that case, had been executed by his father, before his birth, and the Court declined to uphold the contention that a father was debarred from making an alienation while there was a possibility of his wife being enciente, to say nothing of the contingency whether the child in utero matris would be a son or a daughter or be still-born. This view, even if it be assumed to be correct in all its generality, does not militate against the conclusion that the posthumous son is not bound by an alienation, by his mother, of his paternal estate before his birth. In the case before us, there is the significant fact that the deed of relinquishment was executed by the mother two weeks before his birth. The Subordinate; Judge has rightly pointed out that there was no necessity for this expedition and that the principle applicable to cases of family settlements cannot be rightly invoked in such circumstances.
9. It need not be disputed that in the absence of proof of mistake, inequality of position, undue influence, coercion, fraud or like ground, a partition or family arrangement made in settlement of a disputed or doubtful claim is a valid and binding arrangement which the parties thereto cannot deny, ignore or resile from; and this principle is applicable where some of the members of the family are minors, or where the settlement has been effected by a qualified owner whose acts in this respect will bind the reversioner; Syamsundar v. Achan Kuar (33); Bijoy Gopal v. Girindra (34); Upendra Nath v. Bindeshiri Prosad (35); Khunnilal v. Gobind (36); Hiran v. Sohan (37); Bihari Lal v. Daud (38); Keramatulla v. Keramatulla (39); Kokla v. Piari Lal (40); Shyam Lal v. Ramaswari (41); Srinath Bose v. Nibaran (42). But the cases which hold that a minor may be bound by a family settlement effected bona fide and for his benefit by his guardian, are clearly distinguishable on the ground that the settlement put forward was effected on behalf the infant; to this class belong the decisions in Keramatulla v. Keramattulla ; Abdul v. Mahamad (43); Viswanathaswami v. Kamulammal (44); Prakateni v. Koram (45) and Anantanarayana v. Savithri (46). In the case before us, the settlement was not effected on behalf of the infant, who had not been born at the time of the negotiations or the execution of the deed. We are not unmindful of the principle, repeatedly emphasised by the Judicial Committee, that it is of the utmost importance to the right administration of justice that the substance and the real meaning of the parties and not the form of expression and the literal sense of the transaction are to be constantly kept in view as the basis of the decision; Dhuvam Das v. Shama Soondri (47); Hunoomanpersaud v. Babooee Munraj (48); Havisaran v. Bhubaneswari (49). This doctrine, however, is plainly of no assistance to the appellants. When the deed was executed, the possible birth of a male heir to the deceased was not kept in view. The settlement was effected at a time when the widow was assumed to be the holder of the estate for life and the immediate reversioners were her daughter and stepdaughter. If the child in the womb should be still-born, the relative position of the parties would not be altered in any way. If the child should turn out to be a daughter, the relative position would not be affected in substance, though the number of reversionary heirs would be increased from two to three. On the other hand, if the child should turn out to be a son, the estate would vest absolutely in him the widow of the last owner would have no interest therein and her daughter and step daughter would not be reversioners at all. In view of this aspect of the case, it would, indeed, be a hold fiction to hold that a deed executed between two ladies at a time when one was ostensibly the widow in possession as heiress-at-law to her husband and the other was one of the reversionary heirs, was in essence a transaction carried out for the benefit of an unborn son whose birth would destroy the rights, present and contingent, of both the parties to the instrument. We hold accordingly that the Subordinate Judge has correctly held that the plaintiff is not bound by the deed.
10. The result is that the order of remand made by the Subordinate Judge is confirmed and the appeals are dismissed with costs.
11. Appeals dismissed.