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Pemraj Mulchand Marwadi Vs. Rajibai Fulchand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 207 of 1932
Judge
Reported inAIR1938Bom63; (1937)39BOMLR1069; 173Ind.Cas.367
AppellantPemraj Mulchand Marwadi
RespondentRajibai Fulchand
DispositionAppeal dismissed
Excerpt:
hindu law-adoption-conditional adoption-agreement between natural father of adopted son and adoptive father-restrictions on rights of son to property-validity of agreement.;an agreement by the natural father of a minor boy, who is given in adoption in another family, which goes beyond allowing the adoptive widow to enjoy the property during her lifetime and curtails the full rights of the adoptee in the property which becomes his on adoption, is not valid in law.;krishnamurthi ayyar v. kmknamurthi ayyar first appeal no. 207 of 1932 s.c. 29 bom. l.r. 969 followed.;an agreement was entered into between the natural father of the adopted boy and the adoptive father which provided that during the lifetime of the adoptive father and the adoptive mother or either of them the adoptee had no right..........their lordships held that an arrangement made on the adoption of a hindu whereby the widow of the adoptive father is to enjoy his property during her lifetime, or for a less period, that arrangement being consented to by the natural father before the adoption, is to be regarded as valid by custom. their lordships further observed as follows :-as soon, however, as the arrangements go beyond that, i.e., either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist and that such arrangements are against the radical view of the hindu law. (p. 264).these observations and other authorities clearly show that an agreement by the natural father which goes beyond allowing the adoptive widow to enjoy the property during her.....
Judgment:

Rangnekar, J.

1. This is an appeal in a mortgage suit brought by the respondents against the appellant. The mortgage was not denied, but the defendant pleaded that he was an agriculturist and prayed for instalments. His principal contention, however, was that at the date of the mortgage he had no interest in the property which he could mortgage. The learned Judge accepted the plea of the defendant being an agriculturist and ordered accounts to be taken under the Dekkhan Agriculturists' Relief Act. He rejected the contention that the defendant was not entitled to mortgage the property. This last contention is based upon certain facts which may now be shortly stated.

2. The appellant who was the natural son of one Laduram Lachchimandas was taken in adoption during his minority by one Mulchand Dulraj on June 15, 905. On the same day a deed was executed by Laduram and subsequently registered. After reciting the fact of adoption, the deed was in the terms following :-

Between you and me it is agreed that-As long as both yourself and your wife Sirubai, wife of Mulchand or one of you two is alive, the adoptee has no right whatever on your property. As long as you or the said Sirubai is alive, the adoptee should live in your house and you should bring him up. If the adoptee happens to quarrel with you or Sirubai, you or Sirubai should give as you please for the adoptee's maintenance. You had a brother named Sidakran Mulraj; his widow Ruipabai stays with you. The adoptee should maintain her after your death. If the adoptee happens to quarrel with her after your death, the adoptee should pay Rs. 10 per month for her maintenance. I have made the above agreement on behalf of the adoptee and it is binding on him. This adoption deed is passed.

Mulchand died in 1907. The mortgage was executed by the appellant in: the year 1929 long after he attained majority. According to his evidence, he was managing the property for a long time and admittedly had executed another mortgage also.

3. The learned Judge of the Court below held that apart from anything else the agreement did not bind the mortgagee as he was not a party to it nor was he aware of it when the mortgage was made. He further held that the agreement was not valid and did not in any way bind the appellant, and this is the only question which now falls to be decided.

4. Now, it is quite clear on the authorities that an adoption confers upon the adoptee the same rights as the legitimate son with some exceptions which need not be considered here. On the other hand, generally speaking, the rights of the natural father over his son come to an end when the latter is adopted. On principle, therefore, an agreement by the natural father which has the effect of curtailing the rights of the son given in adoption would not and ought not to bind the latter. The position, no doubt, would be different when such an agreement is made by an adult with his adoptive parents. In this case the agreement on which the appellant relies was, as already observed, made during his minority.

5. The same question came up before their Lordships of the Privy Council in Krishnamurthi Ayyar V. Krishnamurthi Ayyar . After examining all the authorities on the question, their Lordships held that an arrangement made on the adoption of a Hindu whereby the widow of the adoptive father is to enjoy his property during her lifetime, or for a less period, that arrangement being consented to by the natural father before the adoption, is to be regarded as valid by custom. Their Lordships further observed as follows :-

As soon, however, as the arrangements go beyond that, i.e., either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist and that such arrangements are against the radical view of the Hindu law. (p. 264).

These observations and other authorities clearly show that an agreement by the natural father which goes beyond allowing the adoptive widow to enjoy the property during her lifetime and curtails the full rights of the adoptee in the property which becomes his on adoption would not be recognized by the Court.

6. The agreement in question seems to us to fall within these principles. Here the agreement is that during the lifetime of the adoptive father and the adoptive mother or either of them the adoptee has no right of any kind to the property. Strictly construed ill must mean that the adopted son cannot even claim maintenance out of that property and the further clause provides that as long as he lived in the family he was to be brought up, but if he happened to quarrel with the father or with the mother, then his maintenance was merely at the mercy of either the adoptive father or the adoptive mother as the case may be. Then it is provided that the appellant must provide for the maintenance of his aunt by adoption who, it does not appear, had any legal claim against the property. It is not as if the uncle by adoption was joint with the adoptive father. It is clear, therefore, that the arrangement in the agreement goes much beyond the disposition which is sanctioned, as is pointed out by the Privy Council, by custom and clearly curtails the rights of the adopted son in the property.

7. It is argued by Mr. Chitale that the father being dead and the agreement being that after his death the mother was to enjoy the property, the agreement falls within that class of agreements which is sanctioned by custom and recognized by the Privy Council. Having regard to the clear wording of the document it is impossible, in my opinion, to accept that contention. The validity of the agreement has to be determined by the nature and scope of the agreement when the agreement was made and not in the light of subsequent events. I think, therefore, the view taken by the learned First Class Subordinate Judge is correct.

8. The second point taken by Mr. Chitale is with regard to the interest awarded in respect of the previous accounts between the parties in the trial Court. The trial Court appointed a Commissioner to find out the amount due after taking the accounts of the previous dealings with interest at twelve Per cent. till the execution of the mortgage and thereafter at six per cent. till the date of the suit as agreed between the parties in the mortgage) deed. We are unable to say having regard to all the circumstances in this case that this rate is excessive and see no reason to interfere with the order made by the learned Judge.

9. Mr. Chitale lastly argues that the learned Judge was wrong in making the decretal amount payable by annual instalment of Rs. 1,000, and that having regard to the circumstances of the case the amount of the instalments ought to be reduced. This is entirely a question for the discretion of the learned Subordinate Judge, and having regard to the fact that the defendant was a Marwadi by caste and carrying on business in groceries and corn, there is no reason to take a different view of the matter from that taken by the learned Judge.

10. The result, therefore, is that the appeal is dismissed with costs.

Maclin, J.

11. I agree.


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