1. We understand the real plaintiff in this suit to be a minor, one Jotendro Mohun Lahuri, represented by his mother and guardian, Bhubonessury Dabia-otherwise the suit would not lie. The plaintiff then lays claim to the share of the estate left by Chandmoni Dabia, widow of Ram Mohun Lahuri, the uterine brother of his adoptive father, late Shibnath Lahuri.
2. Chandmoni Dabia died on the 2nd Assar 1274, which corresponds with the 15th June 1867. The plaintiff was adopted on the 10th Magh 1280, which corresponds with 27th January 1874, by Bhubonessury Dabia, under permission granted to her under the will of her late husband; and though the defendant was the sole heir, at the time of her death, to the entire estate left by Chandmoni Dabia, his succession to one-half thereof is contested by the plaintiff in this suit on the ground that his adoptive mother was unable, in consequence of the fraudulent acts of the defendant, to exercise, before the death of Chandmoni Dabia, the power of adoption which was granted to her by her husband.
3. The Subordinate Judge of the Court below has given the plaintiff a decree. In his judgment he recites certain facts, which he says are 'sufficient in themselves to bring home to the conviction of the Court that plaintiff exerted all her available means to adopt a child while Chandmoni was living, but that the intrigues played by the defendant stood in the way and prevented the adoption taking place till after the death of Chandmoni, in Magh 1280, when she succeeded in adopting the minor Jotendro Mohun.' He holds that the principles of equity should interfere in such a case to deprive the wrong-doer of the rights which he has acquired by the wrongful acts committed by him, and that the effect of the fraud perpetrated by the defendant entitles the plaintiff in equity to obtain the relief which he seeks. Against this decision the defendant appeals. He contends, first, that no such act of fraud on his part has been established in evidence as goes to show that Bhubonessury Dabia was prevented from adopting any boy, much less the present plaintiff, prior to the death of Chandmoni Dabia; and secondly, that even if it be held that he committed a. fraud on Bhubonessury Dabia in suppressing the will of her husband, that fraud is too remote to enable the Court to divest in favour of the plaintiff an estate which has already vested for a long time past in him, the natural heir.
4. Before entering into the question of fraud, it is necessary to notice an argument which has been much insisted on by the respondent's counsel, to the effect that fraud or no fraud, the plaintiff, as adopted son of Shibnath Lahuri, is entitled to his share of the family estate left by Chandmoni Dabia; in other words, the plaintiff, as heir of Shibnath Lahuri, is entitled to succeed both lineally and collaterally to any estate to which Shibnath Lahuri, if alive, could lay claim. This argument has been noticed by the lower Courts, and overruled by it on the authority of the case of Kally Prosonno Ghose v. Gocool Chunder Mittev (I. L. R., 2 Cal., 295), in which it was decided that a subsequent adoption, after the succession has opened out, cannot confer on the adopted son the right to succeed collaterally and to divest the person in whom the property has already vested as heir to the deceased. Several cases have been cited to us as authority to the contrary, but no single instance has been adduced in which, in a case of collateral succession, an estate once vested has been divested by reason of a person being brought into existence subsequently, who, if he had been in existence at the time when the succession opened out, would have been a preferable heir. The general rule, that the right to succession 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 not conceived at the time of the owner's death, was declared by the late Sudder Dewani Adawlut in the case of Keshub Chunder Ghose v. Bishnu Pershad Bose (S. D. A. for 1860, ii, p. 240) and since that date this ruling has been universally followed. The Privy Council recognize it in the case of Bhoobum Moyee Dabia v. Ram Kiskore Acharj (10 Moo. I. A., 279), and declare the ordinary rule to be, that in no case can the estate of the heir of a deceased person vested in possession be defeated and divested in favour of a subsequently adopted son, unless the adoption is effected by the direct agency of the former heir with his or her express consent. The cases of Gourbullab v. Juggernath Pershad Mitter (Macnaghten's Cons, of Hin. Law, p. 159), and Sri Baghnnada v. Sri Brozo Kishoro (L. R., 3 I. A., 154) cannot be said to be in opposition to this rule. In the one case a grandson, and in the other case a son, took by adoption lineally the estate of the grandfather and of the father, as against a nephew and a half-brother. These cases are no authority for holding that if succession to an estate collaterally had opened out before the adoption, either the nephew or the half-brother could have been divested in favour of the subsequently adopted grandson or son. The only ground, therefore, on which it seems to us the plaintiff can lay claim to the property in suit, is by asking the Court as a Court of Equity to place him as heir of Shibnath Lahuri in the position which, but for the fraud of the defendant, he would have obtained. That a fraud was committed by the defendant on Bhubonessury Dabia in suppressing the will of Shibnath Lahuri and setting up a false will, and thereby putting obstacles in the way of her taking a son in adoption, cannot, we think, be doubted. On this head we are disposed to agree with the finding of the lower Court. The only question is whether the present plaintiff, standing as he does in the position of heir to Shibnath Lahuri, is entitled to say that the defendant is estopped by his fraud from relying on the adoption of the plaintiff being of a date subsequent to the death of Chandmoni Dabia. Various cases, such as Luttrel v. Lord Waltham (14 Ves. 290), Middleton v. Middleton (1 Jac. and W., 94), Segrave v. Kirwan (1 Beatty, 157), Bulkley v. Wilford (2 C. & F., 102), have been cited to us as authority in support of the proposition that Courts of Equity will, on proof of fraud, divest property once vested in favour of the rightful heir. But none of these seems to us to meet a case like the present, where, as we judge from the evidence, the heir, that is the present plaintiff, was not even in existence when the fraud was committed by the defendant. So far as the plaintiff himself is concerned, it may be said that, but for the opposition made by the defendant to the will of Shibnath, which his widow set up, the present plaintiff would never have inherited his estate at all. If the evidence is to be believed, Bhubonessury Dabia was foiled by this opposition of the defendant from adopting in the interval between the death of her last surviving son, and the death of Chandmoni, some boy other than the plaintiff. It is also apparent that the fraud of the defendant was not concealed in any way from Bhubonessury Dabia; she was from the first, that is from the time of the death of her husband, aware of the existence of the will in her favour, which empowered her to adopt a son, and it may, with some justice, be said, that between Srabun 1273, or July 1866, the date of the death of Kally Prosonno Lahuri, her last surviving son, and Assar 1274, or June 1867, the date of the death of Chandmoni, Bhubonessury had ample opportunity to adopt a son ; and that the mere circumstance of persons, who were applied to, being unwilling to give their sons in adoption by reason of the counter-will set up by the defendant, is not a sufficient ground for holding that Bhubonessury Dabia could not adopt a son. The difficulties which stood in her way were no more than natural difficulties, such as might be encountered by anyone whose right to adopt was disputed bond fide, and therefore, the defendant, as sole heir of Chandmoni at the time of her death, became legally vested in her estate. It seems to us, therefore, that the fraud, committed by the defendant so far as it affects the plaintiff, is of too remote a character for this Court, as a Court of Equity to disturb the estate which naturally vested in the defendant as sole heir of Chandmoni at the time of her death.
5. We, therefore, set aside the decree of the lower Court, and dismiss the suit of the plaintiff, Jotendro Mohun Lahuri, with costs in both Courts.