1. The plaintiff, a manager of a temple, sued to recover Rs. 20 a year due for three years on a grant for providing lights in the temple under a document termed a vyavasthapatra executed by the deceased Motilal. The defendant pleaded that the grant was invalid owing to his adoption at the time of the execution of the vyavasthapatra by the deceased Motilal.
2. The Subordinate Judge held at the trial that the grant was not invalid as the adopted son's natural father had consented to it at the time of the execution of the vyavasthapatra by the deceased Motilal. This decision was affirmed on first appeal by the District Judge, and the matter has now been brought for final decision in Second Appeal to this Court.
3. It is admitted that the case concerns ancestral property and that the natural father did consent on behalf of his son to this grant towards lighting the temple as thus described in the vyavasthapatra '.--
I have become old and I have been ill for many a day. According to the ways of this mortal world there is no saying when death will come....I entertaining a desire to take a boy in adoption and with a view that my lineage should continue and after my death my funeral and other death ceremonies should be performed....I have this day taken Bababhai's son Vallabhdas in adoption. therefore...I execute this deed of management regarding the manner in which the management should take place after my death....I will maintain my adopted son Balkrishna during my life-time and after my demise my brother Bababhai Vithaldas should maintain him. And for that purpose ho should got (every year) annually one hundred rupees 100 and the management of the estate should be carried on behalf of the boy till be attains the age of twenty one years by Bababhai....Out of the yield of the next three years' income after keeping aside Rs. 100 for the maintenance of the long-lived Balkrishna the balance (so remaining) should be expended every year towards performing permanently the following charitable deeds :....For the purpose of lighting lamps in the temple of Shri Uttar Narayan situate at Alibag Rs. 20 should be paid every year....The sum mentioned above that is indicated to be expended towards performing the charitable deed is to be expended after three years' income will have accumulated and the charitable deeds should be performed out of the interest over that sum (so accumulated)....The religious (charitable) deeds referred to above should be permanently carried on after my demise....And this religious charitable deed is a hereditary one to be performed from generation to generation from son to grandson after my demise....On my estate there is a charge created for the sums to be expended on the charitable deeds.
4. It appears to me that the intention was that the grant should be paid out of the interest to be received on three years' accumulation of the income of the estate after the death of Motilal. The document was, it is true, styled a vyavasthapatra and not a mrutyupatra, but it must, in my opinion, be taken to have been, upon a true interpretation of its terms, a will, as it was intended to take effect after the death of Motilal.
5. It has not been denied that an alienation would have been good if made before the adoption by Motilal who was the sole survivor of the joint Hindu family. But it has been argued that this particular grant was invalid notwithstanding the consent of the natural father as it was to take effect subsequently after the death of the testator Motilal. It appears that the authorities are by no means clear as to the effect of such agreements entered into at the time of the adoption on behalf of a son by the natural father. It was at one time sought to uphold such agreements as binding contracts as in the cases of reservations for widows in Vinayak Narayan Jog v. Govindrav Chintaman Jog (1869) 6 B.H.C.R.(A.C.J.) 224; Chitlco Raghunath Rajadiksh v. Janaki (1874) 11 B.H.C.R. 199; Lakshmi v. Subramanya I.L.R.(1889) Mad. 490 and Narayanasami v. Ramasami I.L.R.(1890) Mad. 172. But these decisions were not followed in a similar case of Jagannadha v. Papamma I.L.R.(1892) Mad. 400 relying upon certain remarks by the Privy Council. It was stated that such agreements would not be void and might be ratified subsequently by the son in the case of Ramasawmi v. Vencataramaiyan , and doubts as to their validity were expressed in the case of Bhaiya Rabidat Singh v. Maharani Indar Kunwar by the Privy Council. On the other hand the reservation of rights for the widow was held valid by custom modifying Hindu law in the case of Ravji Vinayakrav Jaggannath Shankarsett v. Lakshmibai I.L.R.(1887) 11 Bom. 381 and again gifts to daughters were held valid though the ratio decidendi was not clearly expressed in the case of Basava v. Lingangauda I.L.R.(1894) 19 Bom. 428, An agreement, however, by the natural father for a gift being made to the brother's widow was held invalid in the case of Venkappa v. Fakirgowda : (1906)8BOMLR346 The decision appears to have proceeded on the reasoning in Ravji Vinayakrav's case I.L.R.(1887) 11 Bom. 381 and the ratio decidendi would appear therefore to have been that such an arrangement was not in accordance with any custom modifying Hindu law. There was another case quoted before us which was not however exactly in point in which an agreement made by the adopted son himself who was a major was held binding as a family arrangement. The case is Kashihai v. Tatya : AIR1916Bom312 . It would appear that that case also was decided, in view of the reference to a family arrangement, as a matter entirely of Hindu law. A clear statement of the objections to supporting such agreements as contracts was made in the referring judgment of Subrahmania Ayyar Offg. C. J. in Visalakshi Ammal v. Sivaramien I.L.R. (1904) Mad.. The matter was expressed by Benson J. in the final judgment (page 586) thus after reciting the various decisions by Hindu judges : 'I think that great weight must be attached to the decisions of such men on a question like the present which I regard as one of Hindu law modified by Hindu custom and usage developed in accordance with the conceptions of the present time. It is to be observed that there is no text of Hindu law which either recognizes or prohibits such an agreement as the present being entered into, and it is certain, as remarked by West and Buhler, 'Hindu Law,' 3rd edition, page 1106, that in actual practice 'fair arrangements for the protection of the widow's interest during her life, are commonly made, and are always supported by the authority of the caste'.' And again at page 587: 'I cannot but think that this principle ought to guide the Courts in considering whether agreements like the one under consideration can be upheld or not. If the stipulations are unreasonable such as giving to the widow an absolute power of disposition over the property, they should be rejected as ultra vires of the father; if reasonable, such as only to define and limit the son's enjoyment of the property, they should be upheld....If the agreement is such as to be inconsistent with the fundamental idea underlying adoption and the purpose for which it is sanctioned by Hindu law, as, for instance, if it deprived the adopted son of all right to the property of the adoptive father and so left him without any means of performing the necessary religious offices towards the manes of his adoptive father and his ancestors, it may well be that the Courts would regard the condition as essentially repugnant to Hindu law and would refuse to uphold it. But it would seem that a fair and reasonable disposition of the property is not essentially repugnant to Hindu law'. The reservation in favour of the widow upon these principles was held binding according to Hindu law by the Full Bendi. The statement of Subrahmania Ayyar J. was quoted with approval in the referring judgment of Beaman J. in the case of Vyaaacharya v. Venkubai I.L.R.(1912) 37 Bom. 251, L.R. 1109, F.B. It was decided there in the final judgment that the reservation in favour of the daughter was invalid relying upon the decision in Venkappa v. Fakirgowda : (1906)8BOMLR346 . The general question referred was not decided by the Full Bench, but the reasoning proceeded (page 262) upon the rifles of Hindu law.
6. It would appear to have been established by these decisions that agreements for reasonable provision for widows ought to be upheld as valid according to general custom modifying the strict terms of Hindu law. But no authorities have been quoted before us in favour of any other persons in such connection or in support of a general extension of the modification so as to include, as here claimed, reservations in favour of charities and religious endowments. The burden of establishing any such extension would lie upon the person seeking to prove such modifications of the strict rules of the Hindu law. That burden has here not been discharged. No evidence whatever was adduced to show that reservations in favour of religious endowments have by custom been recognized as appropriate on such occasions and no texts have been quoted to prove that they would be permissible on such occasions under the strict rules of Hindu law.
7. We ought, therefore, in my opinion, to decline to recognize the extension claimed and we ought to hold that the grant in favour of the temple was invalid as not having been recognized by custom to be appropriate at the time of adoption or binding upon the adopted son in modification of the strict rules of Hindu law. The appeal ought, therefore, in my opinion, to be allowed and the suit dismissed with costs throughout.
8. I concur.