WYAVASTHA-DARPANA. 1042 590. Where a legitimate son is born subsequently to the adoption, there the adopted son takes one third, the legitimately begotten son being entitled to two thirds." . . . . I. “All these sons are considered as heirs to one having no real legitimate son. But, should a son be subsequently born, no right of primogeniture is attached to them. Of these, those who are equal in class, take a third share; but those inferior in rank, should live in subjection to one of equal rank, receiving maintenance.”—Devala. See D. Ch. Sect. W. § 15. II. If a legitimate son be born, the rest are pronounced sharers of a third part; provided they belong to the same tribe; but if they be of a different class, they are entitled to food and raiment only.”—Kātyāyana. In some copies the reading is "are pronounced sharers of a fourth part.”—D. Ch. Sect. W. § 16. III. In partition made between legitimate and adopted sons, the legitimate son has two shares, and the adopted sons, who are of the same class with the father, take one share; but death of her husband, and not to have been her proper stridhan, it ceased to be her's at the moment of a valid adoption made by her of a son to her husband and herself; in the same manner as property, coming into the hands of a pregnant widow, by the same means, cannot be used by her as her own, after the birth of a son. An adopted child is in most respects precisely similar to a posthumous son. From the moment of the adoption taking effect, the child became heir of the widow's husband; and the widow could have no other authority than that of ാlു4 guardian,-Colebrooke's Remarks-See Str. H. I.. vol. II. p. 102. - The first part of this remark does not appear to be correct, inasmuch as the learned gentleman, although he considered a woman authorised to adopt to be like a pregnant widow, holds such a woman entitled to inherit her late husband's property before the adoption or birth of her son. But our law is that heritable right once vested in one cannot be divested from that person and west in another before the former's death, natural or civil, (nee sno, pp. 1 and 114) consequently the right vested in that woman cannot, so long as she live or be free from 蠶 fault causing disinherision, devolve upon the son subsequently adopted by, or born to, her. The learned gentleman's dictum that it (i.e. the property) ceased to be her's at the moment of a valid adoption made by her, cannot therefore be consistent with the law, as it was not hers even prior thereto, consequently it ought to have been declared by him that—even before adoption or birth of a son to her, the widow has the same right to her husband's roperty as she is justly declared (by the said gentleman) to have aftersadoption or birth of the son, Uthat is, the right of a mother and guardian;) inasmuch as in the case in question her late husband's property did not devolve upon her as heiress (until the adoption or birth of her son, as is considered by the learned gentleman,) but she took it for the behoof of her to-be son, as will be evident on reference to the Digest translated by the gentleman himself (See vol. III. p. 86, or ante, p. 7.) Thus there being no distinction between her possession of such property before the adoption or birth of her son and that subsequent thereto, she cannot exercise her power over it more than a mother and guardian even before the adoption or birth of the son, and as such she could never deal with it as her own, but is restricted to use it with moderation like a widow, she could dispose of any part of it only under an indispensable necessity or for the good of her future son.
- Where a legitimate son is born subsequent to the adoption, he and the son adopted inherit to. ether; but the adopted son takes one third, according to the law of Bengal, and one fourth, according to 驚 doctrine of othér schools.---Macn. H. L. ve!. I. p. 70. .
Mr. Sutherland, in the third special rule under HEAD Firth of his Synopsis, remarks: “where 魏以 t to an adoption legally made, a legitimate son is born to the adopter, the soon, at a division of heritage with such son, receives a quarter share according to the pettahs. iká,”This finding of his does not, however, poss to be occurate inasmuch as the dotrine of the DattakaChandrikáis, that se ad som is entitled to one fourth if not andmed with eminent ities, and to one third if he is so; as is manifest from the passage sukjoined:--"the rule for s ing to a third shire in the texts of Dowals and wa, must be a to refer to a son given, endued with eminent qualities." (D, Ch. Seet. W. $ io, 20.) The above doctrine is also expressed by the learned Wyavastlıá. Authority.
