VYAVASTHA-DARPANA. 1060 by Ranee Kishenmunes, and the second Judge (G. Smith,) before whom the case originally came to a hearing, after directing further evidence to bo taken with respect to the facts of the case, referred the following question of the law for the opinion of the pundile:—'Supposing Bishennatha Roy, the husband of Kishenmunee, to have authorised her to adopt a son, was she at liberty to make the conditional sale of fier late husband's estate? in other words, was such estate the property of her or of the child, to adopt whom she had received permission?" To this question the pundits replied, that Kishenmunee, having been duly authorised by her late husband to adopt a son, and having been appointed manager of his estate, was not at liberty to make a conditional sale of that estate for any purpose, inasmuch as, at the moment permission to adopt was pronounced, it had the same effect as if a child had been conceived in the womb of the , widow, and her intention to adopt under the permission operated, to all intents and purposes, as if she were enceinte; that the boy subsequently adopted by her had all the right of a posthumous child; and that Kishenmuneo had no right whatever to do any act tending to injure his-property, especially to make a conditional sale of the estate, which evidently left him in no better condition than if the original mortgage had never been redeemed; that, in fine, the right of property vested in the son, subsequently adopted, from the time of the Rajah's death, and that the adopting widow had no authority but that of intermediate management under her late husband's will. w '• Authorities.—“The children who are born, those yet unborn, and those in the womb, are equally entitled to maintenance; the privation of which is not sanctioned by law.” Smriti:—“Let the judge “declare void a without ownership, and a gift or pledge unauthorised by the owner.” The second Judge, having perused the above opinion and the additional evidence which had been called for, recorded his opinion that the decree of the Court below should be amended. It was evident, that he was of opinion that an illegal deduction from the loan had been made by the lenders, as well from the positive evidence of witnesses as from the presumption arising from the universal practice of the bankers of this country. Had this not been the case, a larger sum than was due to the original mortgagoo would not have been inserted in the writton obligation executed by the borrower; more would not have been borrowed than would be sufficient to redeem the mortgage and pay the price of the stampt paper used in the second transaction. The delivery of more than this has not been proved satisfactorily. Any attempt to take more than the legal interest, whether by deduction from the loan, or by any means or device whatever, has been prohibited by Section 9, Regulation XV, 1795. There appeared to him to have been great want of faith on the part of the respondents in this transaction; and he morover held it to be established, by the exposition of the law delivered by the Court pungite, that the landed property of the late Rajah Bishennath Roy belonged of right, not to his widow, but to the son adopted by her in pursuance of the permission granted by her deceased husband. Under all the circumstances of the case, the second Judge expressed himself to be of opinion that the respondents wera not entitled to recover either the money lent or the landed estate; the first from their having attempted to extort illegal interest, and the second by reason of the estate being the property of the adopted son and not that of the conditional seller. At all events he thought the present claim should be dismissed, and the respondents referred to a new action to recover the amount of their loan. The papers of the case being made over to the third Judge (J. Shakespear) for his opinion, he deemed it necessary to put another question to the pundits. to the following effect:-'Supposing the adoption made by the widow to have taken place 93
