1. This is a suit by the guardian of the posthumous son of one Ramchandra Shesho to recover possession of the family property from the first defendant, Bhimacharya, who claimed to have been adopted by Ramchandra two days before his death, and to be entitled, under his will, to share equally with the minor plaintiff. The Subordinate Judge has found the adoption proved, and that its validity is unimpeachable.
2. The factum of the adoption has not been disputed before us; but it is contended that it was invalid, owing to the undisputed circumstance of Ramchandra's wife being pregnant at the time it took place. The question raised by this contention was considered by the Madras High Court in Nagabhushanam v. Seshammagaru I.L.R., 3 Mad., 180, at p. 184, and decided in favour of the validity of an adoption during the pregnancy of the wife. It is pointed out in that case that there is no authority in the Hindu law books for holding that an adoption is only permissible when the adopting party is hopeless of having issue. In the Dattaka Chandrika, Section 1, pa. 4, it is said "by one destitute of a son," and Section 2, pa. 1, "by one having no male issue" is a son to be adopted.
3. It may doubtless be contended that when the wife is in a state of pregnancy there may be a son in the womb at the moment of adoption; but the possibility that the child in utero may be a female, would, if the power to adopt were to be deemed suspended by the mere fact of pregnancy, always imperil, and in some cases seriously so, the acquisition of those spiritual benefits which the rite of adoption is supposed to supply in default of a legitimate son. A man in bad health or on his deathbed, as in the present case, might not live till the child was born; and yet, if the 'rule be as contended for by the appellant, the suspension must ipso facto take place in all cases during pregnancy: for we entirely agree with the Madras High Court that it would be impossible to make the validity of an adoption dependent on knowledge or ignorance of the fact of pregnancy.
4. The rights of a child in the womb are doubtless much regarded by the law, as in the case of inheritance and partition; but, as pointed out by the Madras Court, if the doctrine of suspension of the power of adoption during pregnancy "be carried to its legitimate conclusions, and the validity of the exercise of the power be made to depend on an event which may not be known, it follows that an element of uncertainty is introduced into an act regarded as highly religious." In Steel's Hindu Customs it is said that the duty to adopt does not arise until the birth of a son becomes very improbable; by which, we think, must be meant, having regard to the religious importance attaching to the act when there is considerable risk of the adopter dying soilless, which is certainly the case when a man is on his deathbed "although his wife may be actually pregnant at the time. We think, therefore, that the Subordinate Judge was right in holding that the defendant's adoption was a valid one.
5. Independently of the question as to the effect of Ramchandra's will, the defendant would, by general Hindu law, have been entitled to only one-fourth of his adoptive father's estate on the birth of the minor plaintiff. By that will the estate was divided equally between the two sons, and it is contended for the defendant that Ramchandra was competent to make this provision by will, because there was no natural son in actual existence at the time of his death. It is doubtless true that it is by actual birth the son acquires, according to the Mitakshara law, a right of co-proprietorship with the father in the ancestral property. But 'a posthumous son has certain rights by the Hindu law which it, is necessary to consider. A child, who is in its mother's womb at the time, of its father's death, is, for the purposes of inheritance, deemed to be in esse; and as regards partition, a child, if begotten at the time, is, as pointed out by Sir Barnes Peacock in Kallidas Das v. Krishan Chandra Das 2 Beng. L.R., 103, F.B. Rul. in point of law, in existence at the time of the partition, and entitled to share with the other sons or brothers. This distinction between a son in utero at the time of partition and one who is subsequently begotten and who is only entitled to Ms father's self-acquired property and separated share, is clearly pointed out by Sir T. Strange's Hindu Law, p. 182, and Dr. Jolly's Tagore Lectures, p. 132. The former says:
"When pregnancy is apparent at the time, either the partition should wait, or a share be set apart, to abide the event; but that, if it were then neither manifest, nor apprehended, in such case, should a son who was at the time in the womb be born after, he should obtain his share from his brothers by contribution; while a subsequently begotten one shall have recourse only to the remaining property of the father."
So far, therefore, a posthumous son has equal rights with a son actually born.
6. But the present case raises the more difficult question, and which, as far as we can discover, is clear of authority, as to whether his right by survivorship is identical with that of a son in esse when in conflict with a testamentary provision by his father. Mr. Mayne in his Hindu Law lays it down as well established by the decisions of all the High Courts that "the right of devise is coextensive with that of alienation, except when in an undivided family the right of devise conflicts with the law of survivorship, in which case the former gives way." The judgments of this Court in Narottam Jugjiwan v. Narsandds Harikisandas Bom. H.C. Rep., A.C.J., 6 and Vasudevbhat v. Venkatesh Sanbhav 10 Bom. H.C. Rep., 139 support this view. The question, therefore, arises whether the right of the posthumous son by survivorship stands on the same footing with regard to the father's testamentary power. It is to be remarked that this is a distinct" question from the father's power of alienation during his life as against a son who was only begotten at the time, which is the case in Musst. Gowra Chowdhrain v. Chummun Chowdry C.W.R. for 1864, p. 340 referred to by the Subordinate Judge. The right of the posthumous son by survivorship, on the principle of relation back to the time of the father's death, which obtains in the analogous eases of inheritance and partition, would stand on the same footing as that of the son in esse at the time of the father's death, and a due regard to the harmony of the law under analogous circumstances justifies, we think, the conclusion that a father can no more interfere by his will with the right of a posthumous son to his share in his family property as fixed by law, than in the case of a son in esse at the time of his death, and if this be so between the posthumous and other natural born sons, it must also obtain between* the posthumous son and an adopted son who stands in the position of a natural son, subject to having his share reduced to one-fourth in the event of a natural son being subsequently born. We have, therefore, come to be conclusion that in the present case Ramchandra's will was inoperative so far as it reduced the plaintiff's share to a moiety.
7. We must, therefore, vary the decree of the Court below, and direct that the plaintiff do recover three-fourths of Ramchandra's property. As to the bonds forming part of the property, the decree must be varied by directing that a receiver be appointed to get in what is due upon the bonds, the proceeds to be divided as above. The decree is further varied by directing that the costs of defendants 2 and 3 be paid out of the estate before division between the plaintiff and the first defendant. The plaintiff to have half his costs of this appeal.