WYAVASTEIA-DARPANA. 1074 mind of that learned gentleman that, according to the law, which he was administering, the right once vested in one could not be divested from that person and vested in another as long as the former lived, or continued free from any of the faults causing disinherison, or voluntarily abandoused it; or else that scholar was not the person to write so unfounded an opinion. And when Mr. Colebrooke fell into such an error, it could by no means be expectod to be rectified by the other gentlemen who wrote on the subject. Misled by that erroneous opinon, the Sudder Court accord. ingly passed the above decree. I do not say that the Court were wrong in making the decree in favor of the widow, but I do say that they did not act consistently with Hindoo law in making the decree in her favor, declaring her (on the above mentioned ground) to be heir to her husband, and holding at the same time that, as soon as a valid adoption should be made by her, she would be divested of the property already held by her; and the same should vest in the son ; inasmuch as, according to our law, the right vested in the widow cannot be divested from her and vest in the son subsequently adopted. The court ought therefore to have passed the decree in favor of the widow, but for the behoof of the son to be adopted, as in that case, she, like a widow, could enjoy the benefit of the property, and there could be no legal impediment to the succession of her son, when adopted. But according to the decree, as it has been made, the adopted son, when he came into existence, would not by law be entitled to the property, notwithstanding the decretal order, so long as the widow lived, or continued free from any defect causing disinherison, or voluntarily abandoned it. * The Court, by citing some authoritics, which strictly speaking are irrelevant to tho matter in question, held that the widow should inherit until the actual adoption of the son, who, when adopted, would take the inheritance, which, passing from the widow, would then vest in the hou but they appear not to have perceived the barrier thrown by such holding of theirs to the succession of the son when adopted ; that is to say, they provided that the widow should inherit, the property until the adoption of a son by her, and that such son, when adopted, would be vested with the property, and the widow, divested of it, but at the same time forgot that such order could not be executed consistently with the law, according to which property already vesting in the widow could not be divested from her and vested in the son. Nothing could therefore be more illegal and absurd than the finding hy which a son, who is the best and foremost of all heirs, and has a right to inherit to the exclusion of all other heirs, should himself be excluded by the widow, who by our law has a much weaker right, and is excluded not only where there is a son, but also where there is a son's son or son's grandson (in the male line.) The decree in question ought therefore to have been, as already said, according to the interpretation of the text of Fashishtha",—that is, the widow ought to have been ordered to have the property in behoof of her to-be son, who would take it, when adopted, as in that form there would be no legal impediment to the succession of the son, no injury to the widow, and no change in the order of succession — the son being enabled to inherit the property as soon as adopted, the widow having the same benefit under it as is contemplated under the decree in question, (for, whether the property sued for be decreed to her in her own right or in right of her to-be son, the effect as respected herself would be the same, namely, in both cases she would only have a restricted life interest as prescribed by the law, ) and as in the case of a fetus being born dead, or a living daughter, the heir of the former owner, whose claim is superior to that of a daughter, is entitled to the property reserved for the foetus, so also would be the case in the instance of non-adoption of the son.
- 8ee ante, pp, 1042 & 1068, not€$.
