The existence of a son in embryo does not invalidate an adoption.

Judgment

SUBBA RAO, J. : These two appeals by certificate arise out of Special Civil Suit No. 47 of 1946 filed by Nagamma, wife of Chanbassappa, for partition and possession of one-sixth share in the plaint scheduled properties with mesne profits. Chanbasappa died possessed of a large extent of immovable property on January 8, 1944. He left behind him three wives, Nagamma, Guramma and Venkamma and two widowed daughters, Sivalingamma and Neelamma, children of his pre-deceased wife. It is alleged that at the time of his death Venkamma was pregnant and that she gave birth to a male child on October 4, 1944. It is also alleged that on January 30, 1944, Nagamma, the senior most widow, took her sister s son, Malappa, in adoption. A few days before his death, Chanbasappa executed gift and maintenance deeds in favour of his wives, widowed daughter, a son of an illegitimate son, and a relative. Long before his death, he also executed two deeds - one a deed of maintenance and another a gift deed of some property in favour of Nagamma. We shall deal with there alienations in detail in appropriate places.

2. The plaintiff, one of the three surviving widows of Chanbasappa, filed the aforesaid suit for recovery of her share after setting aside the alienations made by the husband on January 4 and 5, 1944. To that suit, Guramma and Venkamma, the other two widows of Chanbasappa, were made defendants 1 and 2; the alleged adopted son, defendant 3, the alleged posthumous son, defendants 4; and the alienees, defendants 5 to 8.

3. Defendants 3 naturally supported the plaintiff, and the other defendants contested the suit. The contesting defendants denied the factum and validity of the adoption of defendant 3 by the plaintiff; and they asserted that defendant 4 was the posthumous son of Chanbasappa by Venkamma, the second defendant. The alinees sought to sustain the validity of the alienations in their favour.

4. As many as 12 issues were framed in the case. The learned Civil Judge found that defendant 3 was taken in adoption by the plaintiff on January 30, 1944, but it was invalid in law that defendant 4 was born to defendant 2 by the deceased; that the plaintiff had failed to prove that the deeds executed by Chanbasappa on January 4, 1944 in favour of defendants 2, 5, 6, 7 and 8 were vitiated by fraud; and that the plaintiff was entitled to one-sixth share in the suit property and for partition and recovery of the same. In the result he passed a decree for partition and delivery of the plaintiff s one-sixth share in the property. He also held that defendants 1 and 2 would each be entitled to one-sixth share and the defendant 4 would be entitled to three-sixth share therein. He declared that the deeds executed by the deceased in favour of the plaintiff as well as in favour of the defendants were binding on the parties to the suit. He directed an enquiry as to the future mesne profits from the date of the suit. The plaintiff and defendant 3 preferred an appeal to the High Court, being First Appeal No. 341 of 1950 against the decree of the Civil Judge in so far as it went against them. The High Court agreed with the learned Civil Judge that defendant 4 was the posthumous son of the deceased by the second defendant; it accepted the finding of the learned Civil Judge that the adoption took place; but it also held that it was valid in law. It declared that the deeds executed by the deceased on January 4 and 5, 1944 in favour of defendants 6, 7 and 8 were invalid as also the gift over in favour of defendant 5. It held that, as defendants 1 and 2 were getting a share in the property, they were not entitled to separate maintenance given to them under the deed executed by their husband and directed that property also should be brought into the hotchpot and divided between the parties. It declared that the plaintiff and defendants 1 and 2 were each entitled to 4/27 share in the suit property, that defendant 3 was entitled to 1/9 share therein and defendant 4 was