1. The question in this appeal is whether the adoption of the plaintiff-appellant Bala by Tanubai, widow of Anna Gurav, entitles him to a share in the joint family property of Anna and his predeceased brother Babu.
2. These two brothers formed a joint Hindu family. Babu died on October 22, 1918, leaving a widow Akubai enceinte. Anna died on November 4, 1918, leaving a widow Tanubai. On February 27, 1919, Anna's widow Tanubai adopted her brother, the plaintiff-appellant, without the consent of Babu'a widow Akubai, who gave birth, on April 1, 1919, to Krishna, defendant-respondent No. 1. The appellant sued Krishna for the joint property, alleging that the family was divided in status before Anna's death and that Anna had given Tanubai authority to adopt. Krishna died pendentelite and is represented byhis natural mother Akubai. Defendants-respondents Nos. 2 and 3 were tenants.
3. The lower Courts held, and, in our opinion, rightly, that the family was not divided in status and thatTanu had no authority from her husband, Anna, to adopt the plaintiff, and dismissed the suit. The plaintiff appeals.
4. It is contended in appeal for the appellant that even on these findings Tanu's adoption of the plaintiff is valid in law. It is argued thatTanu was the widow of the last full owner Anna and had power to adopt (Payapa v. Appanna I.L. R.(1898) 23 Bom. 327 notwithstanding the pregnancy of Akubai, and Krishna should be taken to be non-existent till he was actually born later. And we are asked to extend to a Hindu widow, even the widow of a coparcener, the power of a Hindu father to adopt, notwithstanding the pregnancy of his wife, affirmed in Hanmant Ramchandra v. Bhimacharya I.L.R. (1887) 12 Bom. 105
5. The widow's powers of adoption in the Maratha country, whence the present appeal comes, are larger than those in other parts of India ; and reliance is placed on the observations of their Lordships of the Privy Council in Yadao v. Namdeo(1921) L.R. 48 IndAp 513 and of Shah J, in the recent Full Bench decision in IshvarDadu v. Gajabai (1925) 28 Bom. L.R.782.
6. For the respondents it is argued that the right of a widow in a joint Hindu family is in this Presidency still subject to the limitations laid down in Ramji v. Ghamau I.L.R. (1879) 6 Bom. 498 which was held by the Full Bench, in the recent case last referred to, not to have been overruled by Yadao v. Namdeo ; and, in Hindu as in other systems of jurisprudence, a son is legally in existence not merely from the date of his birth but also from the date of his conception. If so, not Anna, but Krishna in the womb was the last male holder and Anna's widow Tanu had no legal power to adopt the appellant,
7. The question for decision is not a hypothetical question as to the validity of the adoption of the appellant by Tanubai, if the other widow Akubai had not been enceinte or had given birth to a girl; but is whether Tanu's adoption of the appellant without authority from her deceased husband Anna and without the consent of the other widow Akubai and though Akubai's eon Krishna was in the womb, is valid so as to entitle the appellant to a share in the joint family property.
8. To this question the answer is, in my opinion, in the negative, No text or authority is shown in favour of the validity of such an adoption. Its validity could only rest on Anna's being the last full owner,, if he were one. But he was not, unless Akubai's child had proved to be a girl and not, as it turned out, a boy. There is no authority for the proposition that either in a case such as the present, or broadly and in general, Hindu law treats a child in the womb as non-existent. On the contrary, a gift to an infant in the womb is valid in Hindu law : Jatindra Mohan Tagore v. Ganendra MohanTagore (1872) 9 Bang. L.R. 377 An alienation by a lather made, while the joint son is in the womb, can be successfully contested by the latter after his birth, implying that his coparcener's rights commence from conception: Sabapathi v.Somasundaram I.L.R. (1882) Mad. 76 And the provisions of a will made by an uncle, while his joint nephew is in the womb, can be defeated by the birth of the latter, necessitating a similar implication : Bachco v.Mankorebai I.L.R. (1907) 31 Bom. 373
9. The general rule in most systems of jurisprudence, and particularly in cases of succession and inheritance, is exactly the contrary and treats infants en venire sa mere as existing: 'An infant en venire samene...is supposed in law 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 a guardian 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 ' (Blackstone 1, Com. 130, 18th Edn). The English law follows in this respect the Roman law, which allowed even a curator ventria to look after infants in the womb : see also In re Wilmer's Trusts : Moore v. Wing field. (1903) 72 L J. Ch. 378
10. Into the general question of the widow's duty to adopt from pious motives and her inherent right corresponding, I do not think it necessary to enter. The right of a widow in a joint Hindu family from the Maratha country is still subject to the limitations in Ramji v. Ghamau I.L. R.(1879) 8 Bom. 498 according to the view of the majority of the Full Bench in Ishvar Dadu v. Gajabai, which held that Ramji v. Ghamau has not been overruled by Yadao v. Namdeo. I have detailed my reasons for that view in my judgment in the Full Bench decision. Shah J.'s judgment is to the same effect, and I cannot find anything in it to uphold the contention of the present appellant.
11. For these reasons, I am of opinion that Krishna was in law a coparcener from the date of his conception and that the adoption of the appellant by Krishna's aunt Tanubai, while Krishna was in the womb, without the authority of her husband Anna, was not valid, and gave the appellant no interest in the joint family property. The appeal fails and I would dismiss it with costs.
12. I agree.