1. This is a case the determination of which depends upon whether a certain agreement, Exhibit 61, in the case, can or cannot be given effect to. The agreement is one of a kind that has often been the occasion of litigation. It was made on the occasion of an adoption and it gives to the adoptive mother, her husband being dead, a certain control over the property which would otherwise immediately pass to the adopted son. This was with the consent of the natural father who gave his son in adoption.
2. Mr. Jayakar has argued the case from the side which maintains that the agreement cannot be given effect to. He has not asked us to go into the general question, an attempt to do which was very recently made and the result of which appears in the judgment in the case of Vyasacharya v. Venku bai : (1912)14BOMLR1109 . All he asks us to do is to find that the agreement is not fair and reasonable and must, therefore, be set aside.
3. Now I speak of this document as an agreement, because it has been so termed. Whether technically it is an agreement or not, does not matter in the view which we take of it. It provides, to summarize it, that the widow is to continue in management of the property, that she is to retain all the rights she had of managing as long as she lives, of receiving the income, of recovering money &c;, and it further provides that she is to retain all the rights which she had in the absence of a son, and that the adopted boy is to get after her his rights. Now if effect is given to that agreement, it would mean that the widow had not only the management of the property but the unfettered right of disposing of the income. She could turn the boy out of her house and refuse to give him a single pie. I do not for a moment say that she would do this, she certainly has not done it. But if the rights of the parties were to be regulated by this agreement, she could do it and it seems to me to be very clear that a document which would make this possible cannot be regarded as a reasonable provision as between the adoptive mother and the boy whom she has taken in adoption. Therefore applying the test which we are asked to apply as to whether these provisions are fair and reasonable, I come to the conclusion that they are not, and that consequently this agreement must be regarded as non-existent. That being so, the lad', who is the plaintiff in the case, has no right to succeed in her suit. She has prayed amongst other things for possession from her son and the effect of making a decree in her favour would be to uphold the agreement which, as I say, is neither fair nor reasonable. Consequently the decree of the lower Court must be set aside and the claim must be dismissed.
4. In the peculiar circumstances of this case, we think that the parties should bear their own costs throughout.
5. In Appeals Nos. 44 and 137 of 1913 the decision follows from that given above. In each case the appeals are allowed, and the plaintiff's claim is dismissed. The order as to costs is that each party is to bear his own costs throughout.
6. I concur. On a consideration of the terms of the agreement which have been discussed on both sides fully before us, I have come to the conclusion that this agreement cannot be upheld as a reasonable agreement binding upon the adopted boy. The agreement in terms provides that the widow is to have all the rights of management which she had before the adoption was made, and that the rights of the adopted son were to accrue after her death. The result of this agreement, if it were held binding upon the adopted son, would be that during the lifetime of the plaintiff he would have no right to the property whatever. The mere circumstance that the plaintiff has allowed certain concessions in favour of the adopted boy does not alter the legal position of the parties. In this view of the agreement it is clear that applying the test which has been accepted by the appellant as applicable to this class of agreements, viz. whether it is fair and reasonable, I am of opinion that the agreement is not fair to the adopted boy.
7. Though the lower Courts have upheld the agreement as reasonable and binding upon the adopted boy, the terms of the decree show that the agreement by itself was not found by them to be reasonable, and that by way of compromise they allowed certain rights to the adopted boy, which were outside the agreement. This tends to show that without making substantial alterations in the agreement as indicated by the provisions of the decree, the lower Courts were not prepared to enforce the agreement against the adopted boy. The decree appealed from substitutes in effect a new agreement in place of the agreement in dispute. I am of opinion that this could not be done and that the agreement which the adoptive mother seeks to enforce against the adopted boy should not be enforced against him.