1. In this case much unnecessary time has been wasted in argument over points which seem to be firmly settled so far as this Court is concerned. The appeal is on behalf of defendant 1 and arises out of a suit brought by the plaintiff, now respondent, for declaration of his title to certain properties mentioned in the plaint on the allegation that he is the successor of the reversionary heir to one Kartick Manna and is entitled to the properties in suit and that a previous alienation by the heir whom he has divested is not valid. In order to understand the contention raised in this appeal it is necessary to state a few facts regarding which there is no dispute before me. It appears that the property in suit belonged to one Chandra Manna who died leaving behind him a son Kartick and a daughter Panchubala and a sister's son Rajani Kanta Manna who is defendant 2 in the present suit. Kartick was married to one Promila who died on 1st Sravan 1332 B. S. and the question arose on her death as to who would succeed as reversionary heir to Kartick's estate. It appears that at the time of Promila's death Kartick's sister was enciente. But there was at that time alive defendant 2 he being Kartick's father's sister's son and in the absence of other heirs he would be the preferential heir under the Dayabhaga school of Hindu law.
2. After having succeeded to the estate of Kartick on Promila's death after 1st Sravan 1332 B. S. defendant 2 executed a Kobala in respect of the disputed property to defendant 1. Within 19 days of the death of Pomila, that is on 19th Sravan 1332 B. S. Panchubala gave birth to a son on 20th Pous 1332 B. S., who died shortly after, and plaintiff being the father succeeded to his infant son's estate. The Courts below have come to the conclusion that the plaintiff is entitled to a decree. They have held on a consideration of authorities on the point that the son of the plaintiff being in the womb at the time of the death of Kartick's wife Promila was the preferential heir to his father's (Kartick's) sister's son, and consequently after the death of such son his father, the present plaintiff, is entitled to succeed. Both the Courts below have agreed in decreeing the plaintiff's suit against defendant 1 and ex parte against defendant 2; plaintiff's title to the disputed land and ghar has been declared and his possession has been confirmed.
3. Against the concurrent judgments of the Courts below the present appeal has been brought and two points have been taken before me in support of this appeal. It has been argued in the first place that the rule of Hindu law which makes an after-born son who was in the womb at the time when succession opened out an heir to his father should not be extended to the case of others heirs. It is said that the authorities or rather the texts of the Hindu law really limit the application of the rule that an after-born person who was in the womb when succession opens out should succeed to the estate of the last owner should be restricted to the case of the male issues only. Reference has been made to a passage in Mr. Golap Chandra Sarkar's (Sastri's) book on Hindu law which would seem to suggest that this rule is applicable only to the proprietor's male issue. But unfortunately for the appellant in this case, whatever the strict Hindu law may be, ever since the year 1830 for nearly a century a series of judicial decisions have laid down that this rule should be extended to other heirs also not on the ground that there is a clear authority of the Hindu law on the question, but on the ground that the principle has been adopted by the modern systems of jurisprudence. Reference may be made in this connexion to the decision of their Lordships of the Judicial Committee of the Privy Council in the well-known case of Jatindra Mohan Tagore v. Ganendra Mohan Tagors, (1872) IA Sup Vol 47 as also to the decision of the same case reported in the supplementary L.. R. 1 I. A. at p. 7.
4. This view has also been adopted in other cases to some of which reference may be made. It has been held in the case of Nilcomul Lahuri v. Jotendra Mohan Lahuri (1881) 7 Cal 178,Bamundass Mookerjee v. ML Tarinee (1857-59) 7 MIA 169, Narasimha Raju v. Veerabhadra Razu (1894) 17 Mad 287 and Gordhandas Soonderdas v. Bai Ramcoover (1902) 26 Bom 449 that where the estate of a Hindu is vested in a person who is the nearest heir at the time of the owner's death he can be divested by the son who was conceived at the time of his death. The proposition that the rule that an after-born heir when succession opened out is in the same position as if he were born before the succession had opened out has been adopted for such a length of time that on the principle which is well known, namely, the principle of stare decis is it would not be right to question these decisions whether they are in accord with the Hindu law or not. But from the argument I have heard I am not at all satisfied that there is any limitation in the commentary of Jimutbahana, namely that the Dayabhaga which regulated the Hindu law in this presidency puts any such limitation as is contended for on behalf of the appellant. It seems to me that a son was taken as the type of the other heirs and the rule is one of general application. 'Whether that is so or not the decisions have all been in one way and the question is not res initegra. In these circumstances it would be unprofitable to examine the authorities of the Hindu law on this question. This view has stood for nearly a century. It was first determined in one of the cases of Sevestre's report, namely in the case of Biraja v. Naba Krishna that a sister's son in embryo at the time of his maternal uncle's death was held to be his heir. The first point therefore that has been taken for the appellant fails.
5. The next point which has been argued is that the alienation took place before the plaintiff's son was actually born and that if the alienation was to a bona fide purchaser the alienation must stand. But it has been held in this Court at any rate that an alienation made by a Hindu to a bona fide purchaser for value is liable to be set aside by the son who is in the mother's womb when the alienation was made. The question was discussed at very great length by a learned Hindu Judge, Sir Asutosh Mookerjee, and Buckland, J. in the case of Krishna Kisor De v. Nagendra Bala Chaudhurani AIR 1921 Cal 435. In that case after an examination of the different systems of jurisprudence, an examination of the texts of Hindu law and an examination of the earlier decisions on the question it was held that the posthumous son was not bound by the alienation of his mother of his paternal estate before his birth. It was pointed out that the title of a posthumous son must be deemed to relate back to the time of his father's death. Reference was made to a case before me as taking a view contrary to the view taken in Krishna Kisor De v. Nagendra Bala AIR 1921 Cal 435, namely in the case of Mt. Goura Choudhurani v. Chumman Chowdhury (1864) WR 340. That case was considered by Mookerjee and Buckland, JJ., in the case just referred to and it was pointed out that the view taken in this case was not opposed to the case of Goura Chowdhurani v. Chumman Chowdhury (1864) WR 340. That case stood on a very different ground. That was a case under the Mithila system of Hindu law and the question arose with reference to a compromise made by the father when the son was in the womb, the compromise having been effected before the son was actually born.
6. It was held that the son was bound by the compromise effected by the father in such circumstances. That was not the case which we have got here at present the alienation having been made by an heir who succeeded for the time being but whose estate was liable to be divested and was as a matter of fact divested by the birth of a preferential heir. The principle laid down in this case has also been accepted in the case of other High Courts and the whole position is summarized in the Principles of Hindu Law by the Eight Hon'ble Sir Dinshaw Mulla (last edition) at p. 319 where the learned author points out that an alienation may be set aside at the instance of any coparcener who, though born subsequent to the date of the alienation, was in his mother's womb at the date of the alienation; the reason being that under the Hindu law a son conceived is, in many respects, equal to a son born. The learned author cites numerous authorities in support of this contention, to wit the case of Sabapathi v. Somasundaram (1893) 16 Mad 76 which was a case of sale, Ramanna v. Venkata (1888) 11 Mad 246 which was a case of gift, Girdharee Lall v. Kanto Lall (1875) 14 Beng LR 187, Deo Narain v. Ganga Prasad AIR 1915 All 65 and Lachmi Narain v. Kishan (1916) 38 All 126.
7. It has been argued that there is a passage in the Dayabhaga in the original edition in Sanskrit at pp. 190 and 191 which throws doubt on the accuracy of the view taken in these cases. The passage referred to does not at all deal with question of inheritance. It refers to a partition made by a father of his property and does not mention whether it was ancestral or self acquired during his lifetime. I have not been able to find that that passage has any bearing on the question in controversy. The result is that the decrees of the Courts below must be affirmed and this appeal must bo dismissed with costs. Leave has been asked for in this case to prefer a further appeal under Section 15, Letters Patent. I do not think that a proper case has been made out for granting such a leave having regard to the settled authorities on the question.