1. This second appeal filed by the original defendant No.1 Ramchandra Ganapati Salunke raises an important question of Hindu Law. Respondent No.2 Mukatabai who was original defendant No.2 died pending the second appeal and her adopted son Rajaram who is respondent No.1 brought on record as her heir. Respondent No.3 Ganpati is original defendant No.3.
2. Defendant No.2 Muktabai adopted the plaintiff Rajaram on August 3, 1953. Her husband Bapu died in the year closely related to each other. Rajaram's natural father Tukaram is the full brother of defendant No.1 Ramchandra, Tukaram and Ramchandra are the sons of Ganapati defendant No.2 and his wife Chandrabai. This Chandrabai is the daughter of Sakharam who is the brother of Muktabai's husband Bapu. Ganpati defendant No.3, is the Sakharam. The relationship between the parties would be clear from the genealogy which is set out below:
NARUMukta = Bapu Sakhaream = Bahubai Manjabai(D.2) (d.1947)Rajaram Chandrabai Ganapati (D.3) = Chandrabai)Plaintiff adopted on 3.8.53 (married to Ganpat, Tukaram Ramchandra (D.1)Deft. No.3) Rajaram(Given in adoption Plaintiff)
On the date of adoption of the plaintiff Rajaram by Muktabai, another event took place which gave rise to this legislation. On that day, Muktabai sold the two suit lands bearing Survey Nos. 146/2 and 153/1a together admeasuring 3 acres and 19 gunthas by a registered sale-deed for Rupees 2,000/-. This sale-deed is being challenged by the plaintiff in the present petition (sic).
3. Mukteabai's husband Bapu was the owner of 20 acres of land after his death Muktabai got this property as his widow under the Hindu Women's Rights to Property Act, 1937. The result of the adoption and the sale-deed was that Muktabai and Rajaram retained about 16 1/2 acres of land while Ramchandra, defendant No.1 got the remaining portion of 3 acres and 19 gunthas under the sale deed. At the time of adoption, Rajaram was a minor and he was given in adoption by the plaintiff's natural father Tukaram. On August 20, 1964, the plaintiff filed the present suit challenging the sale deed executed by Mukta in favour of Ramchandra on August 3. 1953 on diverse grounds. The main ground on which this sale-deed was challenged was that Muktabai was a Hindu widow having only widow's estate in the suit lands, and, therefore, was not entitled to alienate it. He challenged the sale deed on the ground that it was not for legal necessity and also was without any consideration. The plaintiff's case was that he being the adopted son, such a sale-deed was not binding on him and he was entitled to get possession of the suit lands as owner thereof.
4. The contesting defendant Ram chandra denied the plaintiffs contention that there was no loyal necessity or that no consideration was paid by him under the sale deed. His principal contention. however, was the Mukta had incurred some debts, and for payment of the debts, for sale-deed was executed in his favour for Rs.2,000/-. According to him, there was an arrangement agreed upon between the plaintiff's natural father Tukaram. Ramchandra and Mukta that such a sale deed should be executed in favour of Ramchandra on his paying Rs.2000/- as price thereof and Rajaram should be adopted by Mukta as her son. In short, his contention was that both the adoption as well as the sale-deed were agreed upon between these persons and under this ante adoption agreement both the sale-deed as well as the deed of adoption were executed one after the other on August 3, 1953. He also contended that if the sale deed as well as the deed of adoption were executed one after the other on August 3, 1953. He also contended that if the sale deed had not taken place, the plaintiff would not have become the adopted son of Mukta. In the alternative, he contended that under the Hindu Women's Rights to Property Act, 1937. Muktabai was entitled to half share and so long as she is alive, the plaintiff Rajaram will not be entitled to get possession of the land sold to him. For the purposes of this appeal, it is not necessary to narrate the other points of disputes raised by the parties in their pleadings.I may state here that Muktabai filed her written statement supporting the plaintiff's case.
5. On a consideration of the evidence on record, the trial Court negatived the plaintiff's contention but upheld his contention that the same was not for legal necessity. The trial Court, however took the view that there was an agreement between the parties viz., plaintiff's father Tukaram and Mukta and pursuant to this agreement, both the sale deed and the adoption deed came into existence. The trial Court took the view that such an agreement was valid in the eye of law, being fair and reasonable arrangement between the parties where by the plaintiffs was getting about 16 acres of land while he lost interest only in a small property consisting of 3 acres and 19 gunthas. In this view of the matter he dismissed the plaintiffs suit.
6. The plaintiff challenged this decision in appeal. the learned Assistant Judge took the view that the evidence does not justify the conclusion that the sale-deed in question was effected for the benefit of the minor and under the agreement as set up by the contesting defendants. In this view of the matter, the learned Asst. Judge held that the sale deed was not valid and binding on the plaintiff and ultimately partially decreed the plaintiff's suit by granting plaintiff joint possession of the suit lands on the grounds that in view of the provisions of the Hindu Women's Rights to Property Act, 1937, both the adopted son and the widow each are entitled to half share. In view of the rival submissions made the propriety or the legality of the decree for joint possession passed by the lower appellate Court.
7. Mr. Shrikhande, the learned counsel appearing for the appellant defendant No.1. contents that it must be held on evidence on record that the sale deed as well as the deed of adoption of the plaintiff were a part of the same transaction brought about by the parties the plaintiff. He submits that the evidence conclusively establishes that the Plaintiff's natural father Tukaram and defendants 1 and 2 being closely related came to a common understanding and arrangement whereby Mukta was given a small portion of her husband's estate absolutely which she alienated in favour of defendant No.1 for a valuable consideration of Rs.2,000/-. He submits that this being a just, fair and reasonable arrangement agreed to between the plaintiff's natural father and defendants 1 and 2 is valid under the Hindu Law. He further submits that the parties were so closely related to each other that it is quite possible that plaintiff's adoption would not have taken place but for the arrangement which was mutually agreed upon in the past. On these submissions th question of law that would arise for consideration is whether such an ante-adoption agreement would bind the rights of an adopted son in the property sold which he otherwise would have in view of hsi being adopted by the widow.
8. In order to appreciate the submission advanced on behalf of the appellant, defendant No. 1, it would be necessary to stat a few undisputed facts. In the trial Court an attempt was amend by the plaintiff and Muktabai to suggest that the sale-deed was fraudulently obtained by defendant No. 1. This contention has been negatived by the Court below. Mr. Bhadti appearing for the plaintiff did not challenge this finding of fact by the two Courts below. Both the Courts below have also held that the sale-deed is for consideration of Rs. 2,000/-. This being a finding of fact is also not challenged before me. The sale -deed shows that this amount was paid by defendant No. 1 to theplaintiff's mother Muktabai before the Sub-Registrar. On a perusal of the sale-deed Ex. 76, and the deed of adoption. Ex. 84, it is seen that the general stamp for both these documents was purchased by Tukaram, the plaintiff 's natural father. The documents show and it is not disputed in evidence before the trial Court that the Sub-Registrar had come to the place of Mukta for registration of these documents. It is also obvious that these two documents were registered one after the other as can be seen from the fact that the sale-added bears the registration No. 1613 and the adoption deed bears the registration No. 1614. There is some controversy as to which of these documents was executed first. The endorsements on the documents prima facie show that the sale-deed was registered first and then the adoption deed. But in my view in the facts of the present cae, the registration of one document before the other will not materially alter the decision on the legal issues involved in the case. The fact that the documents were kept ready for registration by the Sub-Registrar at the house of Mukta shows that these two documents were executed simultaneously as a result of some arrangement and understanding between the plaintiffs natural father, hsi adoptive mother and the purchaser. In view of the admitted fact that the Registrar was called at the house of Mukta. It will have to be held and it has not been seriously disputed that both the adoption deed and the sale-deed were agreed to be executed before adoption. The question that arises for consideration is what was the arises for consideration is what was the nature of the arrangement between the parties and whether the same is valid in law so as to bind the adopted son. In this connekction, some of the material facts mut be noticed. Mukta inherited from her husband land of about 20 acres. As a result of the sale - deed k executed by Mukta. what was lost to the family is only 3 acres and 20 gunthas. Moreover, what has been lost in the family of the plaintiff and hsi adoptive mother goes to plaintiffs own uncle who was closely related to the adoptive mother even before adoption. On the basis of these facts it is urged by Mr. Shrikhande, the learned counsel for the appellant that the true effect of the agreement between the parties is that the plaintiff's natural father consented to the widow being absolute owner of 3 acres and 19 gunthas which she decided to sell away oto Defendant No. 1 and that too for a consideration of Rs. 2,000/-. Thus although the plaintiff who by virtue of the adoption could otherwise have become the owner of the said 3 acres and 19 gunthas, lost his rights there to in view of this sale-deed but at te same time this adoptive mother received a consideration of Rs. 2,000/- for the aliention. The trial Court has referred to the suggestion made to defendant No.1 in his cross-examination to the effect that he threatened his brother Tukaram that unless the sale deed was executed in his favour he would not allow the adoption to take place. This suggestion implies that even according to the plaintiff, there was an arrangement arrived at between the three parties both as regard the sale-deed and the deed of adoption. The facts of the case undoubtedly show that both the sale-deed and the adoption deed were the result of a common agreement between the adoptive mother of the minor plaintiff,. his natural father and the purchaser under the sale-deed. If that is so I see no difficulty in upholding the contention of Mr. Shrikhande that the admitted facts of the case lead to the inference that the plaintiff's natural father agreedot the widow being the absolute owner of the small portion of land which she sold to defendant No. 1 for consideration. Considering the fact that only a small portion of the land which she sold to defendant No. 1 for consideration. Considering the fact that only a small portion of the land has been lost to the family of the plaintiff under the sale-deed and that too for valuable consideration, it must be held that the arrangement was fair and reasonable. It is, however, strongly urged by mr. Bhadti, the learned counsel for the plaintiff, that the fact that the arrangement is fair and reasonable is irrelevant as according to him an arrangement whereby property is given to the widow or to stranger absolutely is contrary to the Hindu Law and cannot bind the adopted son.
9. The question involved has been the subject-matter of several decisions of this Court the oldest being Vinavak Narayan Jog v. Govindrao Chintaman Jag. (1871) 6 Bom HC 224 AC. In that case by a will the testator divided his property into two parts and gave one to his widow absolutely and the other to his adopted son. The adopted son was s nephew and it was found that the arrangement was known to all the members of the family and was also to the knowledge of the natural father of the boy. The High Court held that the provision for the adopted son was adequate, and as such he was not entitled to challenge the will. There was another consideration on which this arrangement was upheld by the High Court viz. on the principles of approbate and reeprobate. However, the ground based on the principle of approbate and reprobate upheld by the High Court was not accepted as legal by the Privy Council in KrishnaMurthi v. Krishnamurthi. ..
10. In Chitko Raghunath Rajadiksh v. Janaki, (1878) 3 Bom 7: 1874 11 Bom HCR 199, the facts were that eh adoption was subject to a condition that the widow should enjoy the whole property during her life giving the adopted boy maintenance. This arrangement whereby the widow retained interesting the property in her lifetime was upheld on the ground that it was a conditional adoption and also on the principle of approbate and reprobate. In Krishnamurthi's case, this reasoning was not accepted by the Privy Council.
11. In Ravji Vinayakrav Jagannath Shankarsett v. Lakshmibai ILR (1887) 11 Bom 381 the stipulation was similar to Chitko's case 1874 11 Bom HCR 199 and the widow was given a right to enjoy the property till her lifetime. The contemporaneous agreement with his natural father was upheld on the ground that such a stipulation was reasonable. Broadly speaking the test of reasonableness of the stipulation was considered as the gilding factor in testing the validity of the agreement.
12. In Basava v. Lingangauda. ILR (1895) 19 Bom 428 the man who adopted a son had conversed by a deed of gift part of the ancestral property to his d daughters. This was referred to in the deed of adoption to which the natural father of the adopted boy was a party. It was held that the gift was valid and binding on the adopted son.
13. In Vyascharvar v. Venkubai ILR (1913) 37 Bom 251(FB) facts were similar to those of Basava's case ILR (1895) 19 Bom 428. The boy was adopted by the widow who gave a part of the property by way of gift to her own daughter. This gift was assented to by the natural father ast the time of adoption. On the facts te Court took the view that the agreement was not being in Howerver, the ground on which this arrangement was held to be bad was that it was unreasonable.
14. In Venkappa v. Fakirgowda, : (1906)8BOMLR346 it was held that the widow was given power to give the property to her own brother and the condition was held to be bad. The facts of that case were that under the agreement the adoptive mother purported to give away 16 acres out of a total of 27. Of the 16 acres, 4 were given to her brother and it was to recover these 4 acres the suit was filed by the adopted son. The Court applied the test mentioned in Ravji Vinayakrav's case ILR (1887) 11 Bom 381 and held on facts that the stimulation in the agreement were unreasonable so far k as they purported to vest in the adoptive mother power to make the gift which she did in favour of her brother.
15. In Balkrishna Motiram v. Uttar narayan Dev., ILR (1919) 43 Bom 542: : AIR1919Bom101 the father made a gift of an annual sum as a charge on the ancestral property for a charity and this was agreed to by the natural father at the time of the adoption. The gift was held to be had on the ground that he agreements for reasonable provisions for widows beings valid according to general custom modifying the strict terms of Hindu Law could nt be extended to reservation in favour of charities and religious endowments.
16. All these Bombay decisions have been summed up by the Privy Council in Krishnamurthi's case as follows:
'To sum up the Bombay cases: As a question of actual decison, the Courts have always upheld the grant to th widow of her interest for life, and that whether the stipulation had been made by the husband while still alive, or by herself, it being always the case that the agreement was anterior to or contemporaneous with the adoption itself, and that the natural father conceurred. But when the gift is to outsiders it has been held invalid, and that whether made by the widow or the adopting father himself. The reasons given have varied. Some have put the deviation from strict principle on custom some on the view k of approbation and reprobate and in one case upon the view that the father as guardian can bid an infant by any contract which is for his benefit'.
17. There is a series of decisions of Madras High Court the effect of which has been summarised in Krishnamurthi's case as follows:
'To sum up the Madras caes: As regards decision, the general result has been to validate the arrangements so far as provision is made for the widow just as in Bombay, but one case, Jagannatha v. Pepemma, ILR (1893) 16 Mad 400 is the other way, and the referring judgment of Subramania Ayyar, J. is also of that way of thinking. As regards reasons. again they vary, some going on the power of the adoptive father to do what he likes some on fair and reasonabe arrangements and some on approbate and reprobate'.
18. Reference may be made to another decision of this Court in parvatibai Trimbakrao Patvardhan v. Vishvanath Khanderao Raste. 27 Bom LR 1509 : AIR 1926 Bom 90 which has not been referred to in Krishnamurthi's case . In that cae, the effect of the stipulation was that the adoptive father was given an absolute right to dispose of all the property even after adoption in any way he pleased. This arrangement entered into by the guardian of the minor boy who was adopted was held to be bad. As the result of sch an agreement would be that the adopted son would lose his right in the natural family and would either acquire no rights at all or would only acquire rights which were liable to be defeated in his new family. This reasoning presumably is based on the unreasonableness of the stipulation.
19. In Krishnamurthi's case the ground, viz. that the alleged power of the adoptive father to do what he likes or the guardianship power of the natural father to bind the son to the property was not accepted by the Privy Council as a valid ground for upholding such arrangements. Similarily, the Privy Council was of the view that such arrangement cannot also be supported on the doctrine of approbate and reprobate. However, the Privy Council seems to have upheld such arrangements as having been sanctioned by custom.
20. Strong reliance, however, is placed by mr. Bhadti on the following observations of the Privy Council in Krishnamurth's case at page 146 of the report:
'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 redical view of the Hindu law. Their Lordships are, therefore, against the idea of a general proposition that all arrangements consented to by a natural father, and of benefit to the boy in the sense that half a loaf being better that no bread, he is better with an adoption with truncated rights than with no adoption at all, are valid. They would further say that the remark made by some learned Judges that there is no text prohibiting such arrangement seems to them to go exactly to the opposite effect. Inasmuch as what is sought to be done is admittedly contrary to the strict and natural view of the Hindu Law as to the true position of the adopted son in his new family, it would seem more to the point to say that there is no text which sanctions any contrary arrangement'.
It is urged by the counsel that the above observations of the Privy Council clearly show that if under the arrangement the widow is given the property absolutely, no such custom exists and that such an arrangement is opposed to the view of the Hindu Law. According to him it makes no difference whether the widow is given the entire or a part of the property absolutely under the arrangement; not is the question of reasonableness of such arrangement relevant in such case. He submits that even if a part of the property is given absolutely to the widow and such an arrangement is found to be reasonable it is still invalid and bad in law. I am unable to accept this submission . The above observations of the Privy Council must be understood in the light of the earlier discussion made by them in the earlier part of the judgment on this topic. While referring to the several decision of this Court and the madras High Court , the view taken tha arrangements, if found reasonable should be held to be valid and binding has not been rejected by the Privy Council. On the other hand, they seem to have approved such a view on the footing that it is sanctioned by custom. The observations of the privy Council relied on by the counsel cannot be said to convey that they intended to hold that all arrangements whereby the widow is given properties absolutely whether reasonable or otherwise must be considered bad and not binding on the adopted son. In the earlier paragraph of the judgment of the Privy Council which has been quoted in extenso by me above, it has been held that the custom sanctions arrangements if the are for the benefit of the boy and that the mere postponement of hsi interest to the widows interest even though it should be one extending to a life interest in the whole property. The observations relating to cases where the widow is given power to enjoy the property during her lifetime. In my view the observations were not intended to cover arrangements whereby only a portion of the property is given to the widow absolutely and such an arrangement could stand the test of reasonableness. I am supported in this view that I am taking by a decision of the Madras High Court in THE. Raju v. Nagammal, AIR 1928 Mad 1289, wherein it has bene held that where in an ante-adoption agreement made with the consent of the natural father of the minor adopted son, it was arranged that a portion of the adoptive father's property would be given absolutely to the adoptive mother and the arrangement is fair and reasonable and beneficial to the adopted son the agreement is binding on the adopted son, reliance was placed on the Privy Council decision in Krishnamurthi's case. The leared Judge held that the Privy Council in krishnamurthis;'c case did not render invalid all ante-adoption arguments giving some portion of the property absolutely to the adoptive mother irrespective of the fact whether such agreements were fair and reasonable or not. I respectfully agree wit the view expressed by the Madras High Court in . Raju's case as regards the true effect of the decision of the Privy Council in Krishnamurthi's case. In the present case, it is not disputed before me that only a small portion of the property having been given to the widow under the arrangement made between the parties at the time of the adoption, the same can be considered to be fair and reasonable arrangement. Moreover, under the sale deed, the widow received a consideration of Rs. 2,000/- and was thus benefited. In my view such an arrangement and the resulting alienation in favour of the defendant Ramchandra cannot be considered to be illegal or in any way not binding on the adopted son.
21. The counsel then relied on a decision of this Court in Shankardas Vishundas Darbar v. Channappa Girimalapar Jolad, 40 Bom LR 443: AIR 1938 Bom 336. He submits that the decision of the Division Bench in that case supports his contention that any arrangements whereby the widow is given any portion of the property absolutely is bad in law, and that the fact that the arrangement is fair and reasonable is of no consequence. In that case, the facts were that at the time of adoption of the plaintiff an agreement was arrived at between his natural father and the adopting widow that the latter should mean age and enjoy the whole of her hbusband;s property during her lifetime and that the plaintiff should take possession and manage it after her death. The widow thereafter alienated practically the whole of the property. The Court took the view that the custom which afforded the foundation for the doctrine that the rights of the adopted son could in a proper case be curtailed by agreement did not extend to the reservation to the adopting widow of unlimited powers of alienation of her husband;'s property for the period of her life, and that the plaintiff was therefore entitled to have the alienation set aside. It would be clear that the agreement as interpreted by the Court resulted in virtually making the adopting widow the full owner of the property and she was given full freedom to alienate them so as to bind the adopted son. Such asn arrangement which deprived the adopted son of his right to claim any property and vested all the property in the adopting widow absolutely was held to be bad. In that case, the Court was not required to consider the question as to required to consider the question as to whether an arrangement whereby the adoptive mother is given only some portion of the property absolutely and the arrangement is found to be fair and reasonable. I do not think that the decision in the case of Shankardas can assist the plaintiff in the present case.
22. The counsel also made a reference to a decision of this Court in Pemraj mulchand Marwadi v. Rajibai Funchand, 39 Bom LR 1069 : AIR 1938 Bom 63. One of the terms of the ante adoption agreement between the natural father of the adopted boy and the adopted father was that during the lifetime of the adoptive father and the adoptive mother or either of them, the adopted son had no right of any kind in the property. This stipulation was considered to have the effect of curtailing the rights of the adopted son. Following the decision of the Privy Council in Krishnamaurthi's case, the agreement was held to be invalid. The facts of that case are distinguishable as the adopted son was virtually deprived of the entire port by which he would otherwise get as the adopted son. The term of the agreement showed that there was no restoration on the powers of the adoptive father and the adoptive mother to dispose of the property during their lifetime. Such a stipulation could as well result in the adopted son getting no property at all. It was under these facts that th ratio in Krishnamurthi's case was applied and the agreement was held to be had in law in the case of AIR 1938 Bom 63.
23. In myview, an ante-adoption arrangement which stipulates that a part of the property is given to the adoptive mother absolutely is valid in law provided the arrangement is found to be fair and reasonable. As stated above, the facts of this case show that the arrangement arrived at between the natural father of the adopted boy the adoptive mother and the purchaser who also are closely related to each other was fair and reasonable. If that is so, the sale-deed of the suit land executed by the adoptive mother in favour of defendant No. 1 Ram chandra cannot be challenged by the plaintiff and must be held to be binding on him.
24. In the result the decree passed by the appellate Court in Civil Appeal No. 346 of 1945 is set aside and the decree of the trial court dismissing the plaintiff's suit is restored. In the circumstances of the case, there shall be no order as to costs.
25. Appeal allowed.