1. This was a suit to recover possession of certain property and the facts found are that the property originally belonged to one Malam, who died leaving a widow Bandeva and three sons, the eldest being Chanbasapa. All three sons were born deaf and dumb, and as they were therefore disqualified from inheriting, the widow Bandeva succeeded to the estate of her husband. In October 1900 she sold the property in suit to the plaintiffs.
2. After Malam's death, Chanbasapa, the disqualified son, married, and a son, defendant 2, was born to him before the widow's sale to the plaintiffs. This son, who admittedly suffers under no disqualification, was not conceived till after the inheritance had passed to Bandeva.
3. The plaintiffs suing on the sale-deed were met by various defences, as that the sale was fraudulent; that it was made without consideration; that it was made without necessity; and that the sons of Malam were not born deaf and dumb. On all these defences the findings of the Courts below are conclusive against the defendants, and Mr. Rao does not seek to reopen any of these matters now. He puts this appeal on a point of pure law, which is very briefly referred to in the judgment of the lower appellate Court. The contention is that Bandeva, succeeding to her husband, took only a widow's estate, and that estate was divested by the second defendant, the after-born son of Chanbasapa.
4. Mr. Rao in his interesting argument has referred us to the original texts bearing upon the position of the sons of disqualified heirs, but the point of present concern is so well settled in this Presidency that it is now unnecessary to discuss the original authorities. Mr. Rao's contention here goes no further than this that the qualified son of a disqualified heir is entitled to inherit; and that is a proposition which is not, and cannot be, denied: see Bapuji v. Pandurang ILR (1882) 6 Bom. 616.
5. The difficulty begins with the next step of the argument, in which we are invited to hold that the qualified son of Chanbasapa, though not conceived till after the estate vested in Bandeva divested Bandeva of the estate which she had taken. Here again the question is not quite at large, for in the already cited case of Bapuji v. Pandurang, a Division Bench of this Court held-and their decision is binding on us-that a nephew, having succeeded to the inheritance in exclusion of a son born deaf and dumb, was not divested by a qualified son born afterwards to the disqualified son. That decision followed Kalidas Das v. Krishan Chandra Das (1869) 2 Beng. L.R. 103. where the judgment of Sir Barnes Peacock, Chief Justice, was held to be based upon principles applicable as well to this Presidency as to Bengal.
6. It is true that in Krishna v. Sami ILR (1885) 9 Mad. 62, F.B. the opposite view was taken by a full Bench of the Madras High Court, but as a Division Bench we are bound by the decision in Bapuji v. Pandurang. This narrows down the controversy to a single point, which may be expressed thus : given that an after-born qualified heir does not divest the estate of a male in whom it has already vested as full owner, is the case different where the estate already vested is merely that restricted estate which a widow takes as heir of her husband? It appears to us that the burden of establishing the affirmative lies heavily on the appellants who contend for it, inasmuch as the general principle is against them. That principle is expressed by Mr. Mayne in his treatise on Hindu Law and Usage (Section 600, 6th Edition) as follows :-.' The Hindu law never allows the inheritance to be in abeyance, and if the claimant is not capable of succeeding at the time the descent takes place, the subsequent removal of his incapacity will not enable him to dispossess,a person whose title was better than his while the defect existed, though inferior to his own after the defect was removed.' In the succeeding paragraphs the learned author discusses the Bombay and Madras decisions which we have cited, and subscribes to the view which found favour in Bapuji v. Pandurang.
7. It is no doubt true, as Mr. Rao has urged, that the principle that an estate once vested shall not afterwards be divested is not quite inflexible, and the learned pleader has pointed to the cases of an adopted son and of a son in the womb, who in certain circumstances will divest the estate of a third person who has succeeded as heir. But these special cases are referable to another principle, which cannot be invoiced in favour of the present appellants. A son in the womb who afterwards comes into separate existence is in the eye of the law already born. And the specially favourable position of an adopted son stands on much the same footing ' because' in the words of the Judicial Committee, ' of the peculiar law applicable to that relation.' Tagore v. Tagore (1872) 9 B.L.R. 377 And speaking of an adopted child their Lordships continue :- 'In contemplation of law, such child is begotten by the father who adopts him, or for and on behalf of whom he is adopted. Such child may be provided for as a person whom the law recognises as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of inheriting, or otherwise taking from the testator, as if he had existed at the time of the testator's death having been actually begotten by him.'
8. Mr. Rao has contended that there is some analogy between. these cases and the case of the second defendant in this suit, but for our part we can see no analogy. Both in fact and in contemplation of law the second defendant had no existence when the estate vested in Bandeva. It is true that she took only a woman's estate, and that that estate is subject to certain limitations ; but those limitations are concerned with her powers of enjoyment and alienation, and do not, as it seems to us, make the inheritance more easily divestible in her hands than it would be in the hands of a male heir. No authority is shown to us for the opposite opinion, and we cannot discover any support for it in principle. The second defendant, it seems to us, stands in no better position than would have been occupied by his father, Chanbasapa, if the latter's disqualification had been, removed after the widow had succeeded to the inheritance; and, in that case, on the principle already stated, the widow's title Would prevail inasmuch as it was superior to Chanbasapa's while his disqualification endured.
9. No other point is taken, and the result is that the appeal must be dismissed with costs.