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Parvatibai Shankar Pathaki Vs. Anandrao Pathaki - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 768 of 1946
Judge
Reported inAIR1948Bom159; (1947)49BOMLR789
AppellantParvatibai Shankar Pathaki
RespondentAnandrao Pathaki
DispositionAppeal dismissed
Excerpt:
construction of documents-sanad-terms, interpretation of-'avalad' and 'vanshaparampara'-lineal male descendants-whether adopted son included in.;a grant was evidenced by two documents, one in english and the other in marathi. the english sanad, provided that the annual allowance was confirmed hereditarily in the terms of the original sanad to the lineal male descendants of the original grantee. the expression 'the lineal male descendants' purported to be the translation of 'avaladikade' and 'from generation to generation' was the translation of the word 'vanshaparampara' in the marathi sanad. on the question whether the word 'avaladikade' in the grant would include an adopted, son:-;that the sanad was a grant which was to run from generation to generation and the word 'avalad' in the..........of rs. 346-11-0 was confirmed hereditarily in the terms of the original sanad to the lineal male descendants of laxman pathak bin moorar pathak, the original grantee, from generation to generation. the expression 'the lineal male descendants' purports to be the translation of the word 'avaladikade' whereas the expression 'from generation to generation' is the translation of the word 'vanshaparampara'. on behalf of the appellant mr. joshi has contended that the word 'avaladikade' excludes adopted sons and their progeny, and he further contended that the said word is a word of limitation which must control the somewhat wider expression 'vanshaparampara' i.e. from generation, to generation, which follows it. in support of the contention that the word 'avalad' should exclude an.....
Judgment:

Gajendragadkar, J.

1. This appeal arises in execution proceedings and raises a short interesting question as to the proper denotation of the word 'avalad'. The decree which is the subject-matter of these execution proceedings was passed in 1870 and the respondent is seeking to execute it on the ground that he belongs to the family of the decree-holder by adoption. The claim made by the respondent was resisted by the judgment-debtors on the ground that he is not entitled to the benefit of this decree since he does not fall within the class of heirs mentioned under the sanad. That is how the question of the construction of the said sanad becomes material for the decision of this appeal. The learned trial Judge took the view that the words of the sanad referred only to the natural sons and their progeny, and since the present claimant had come into the family by adoption, he was not entitled to execute the decree. On appeal the contrary view prevailed with the result that the proceedings were sent back by the lower appellate Court for final disposal according to law. The judgment-debtor has come in appeal against this order.

2. The grant is evidenced by two documents, exhibit 70 the sanad in English, and exhibit 59 in Marathi. The material clause of the English sanad provides that the annual allowance of Rs. 346-11-0 was confirmed hereditarily in the terms of the original sanad to the lineal male descendants of Laxman Pathak bin Moorar Pathak, the original grantee, from generation to generation. The expression 'the lineal male descendants' purports to be the translation of the word 'avaladikade' whereas the expression 'from generation to generation' is the translation of the word 'vanshaparampara'. On behalf of the appellant Mr. Joshi has contended that the word 'avaladikade' excludes adopted sons and their progeny, and he further contended that the said word is a word of limitation which must control the somewhat wider expression 'vanshaparampara' i.e. from generation, to generation, which follows it. In support of the contention that the word 'avalad' should exclude an adopted son, Mr. Joshi has relied upon the meaning of the word as given by Molesworth. The word 'avalad' according to Molesworth means 'Lineage, race; especially understood of the male descendants', and he makes a reference to the word 'afalad' which according to him is used in contradistinction to the word. This latter word denotes descendants or lineage of the female branch. It is also applied to the descendants of an adopted son, to offspring through a kept mistress, or female slave, or woman in her second marriage. It would thus appear that the word 'afalad' according to Molesworth may in a secondary sense be applied to the descendants of an adopted son. I apprehend that that may be no justification for holding that the said word includes the adopted son himself. Mr. Joshi seeks to derive some assistance for this interpretation of the word 'avalad' by reference to the decision of this Court in Mahadev v. Secretary of State (1899) 1 Bom. L.R. 528 In the said case the Court was dealing with a grant under which certain lands were to be continued so long as there would remain in existence any lineal male descendants of the original grantee. An adopted son having claimed to be such a lineal male descendant and on that basis having resisted the Government's attempt to levy assessment on the ground that the land had passed out of the hands of the lineal male descendants of the original grantee, it was held by this Court that the adopted son, who was defendant No. 2, 'is not a lineal descendant of Ramchandra, but has been brought into the family by an unrecognized adoption, and as such is a third person, holding the same position as a purchaser, donee or assignee would.' The finding that defendant No. 2 was not a lineal male descendant of Ramchandra must, I think, be read in connection with the decision as to the position of defendant No. 2, namely that he was a person whose adoption had been unrecognized and as such was no better than a third person, and his position on that basis was compared to that of a purchaser, donee or assignee. This decision would not, therefore, be of much assistance since the person whose rights were being adjudicated upon was not a validly adopted son. In any event, that was the view which this Court took about his status in view of the fact that his adoption was unrecognized.

3. On the other hand, Mr. Virkar who appears for the respondent has contended that the words 'vanshaparampara', i.e. from generation to generation, are clearly words of inheritance, and he has argued that there would be no justification for holding the earlier word 'avalad' as limiting or controlling the general words of succession used in the sanad. In support of this contention Mr. Virkar has relied upon a decision of this Court in Ramsomappa v. Sectary of State : AIR1937Bom465 where it was held that the words 'from generation to generation' represent a grant which goes by succession to the heirs of the grantee. The adopted son, argues Mr. Virkar, certainly is such an heir. These two words were interpreted by this Court as early as 1877 in Chandrasekhram Lalitaram v. Ishvardas Jagjivandas (1877) P.J. 261 and though curiously enough the learned Civil Judge (J.D.) referred to this case in support of his conclusion that the adopted son fell outside the grant by reason of the fact that he was an adopted son, Mr. Virkar has pointed out that in fact this decision is contrary to that conclusion. It has been pointed out in this case that the word 'avalad' is one of several plurals of the Arabic word 'walad' of which the primary signification is 'a son', but it is sometimes used as 'offspring'. 'Awalad' signifies 'sons, children or descendants' according to Richardson's Persian, Arabic and English Dictionary. The Arabic translator of this Court was consulted by the learned Judges and he translated the word as 'male lineage'. The word 'afalad' was also considered and it was pointed out that it means female lineage, as contradistinguished from male lineage.

4. Under the Hindu law there can be no doubt that ordinarily the position of an adopted son is for the purpose of succession exactly the same as that of a natural son, his rights and his liabilities being identical with those of the natural son. The original grantor and the grantee were Hindus, and though the word 'avalad', which is an Arabic word, has been used in this grant, I do not think I would be justified in accepting Mr, Joshi's contention that though the word includes both the male and the female progeny of the grantee, it must exclude the adopted son. It seems to me on reading the sanad as a whole that it was a grant which was to run from generation to generation and the word 'avalad' in the context must, I think, be taken to include the adopted son, Mr. Joshi has laid considerable emphasis upon the fact that in certain sanads reference is made not only to the natural son but to the collaterals and to the adopted sons in terms, and in this connection he has referred me to such sanads set out by Mr. Joglekar in his book at page 115 It is quite true that in this grant no reference is made to an adopted son in terms. On the other hand, there is no prohibition of adoption, nor any limitation as to the power of adoption such as prior consent of the grantor or his heir. The absence of a reference to the adopted son cannot I think be treated as excluding the claims of an adopted son under this grant. That being my view I think the lower appellate Court was right in holding that the adopted son was entitled to execute the decree.

5. The result is that the appeal fails and must be dismissed with costs.


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