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Kashinath Balkrishna Kulkarni Vs. Anant Murlidhar Inamdar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Reported inAIR1942Bom284
AppellantKashinath Balkrishna Kulkarni
RespondentAnant Murlidhar Inamdar and ors.
Excerpt:
- - these witnesses were all believed by the trial judge, and we can see no good reasons for disbelieving them. that seems perfectly natural. it appears from what his teachers say that he was not particularly clever, his powers of understanding were only 'tolerably good' and he had some difficulty in passing his examinations. his opinion may nevertheless be perfectly honest, but i agree with the learned trial judge that it is of little or no value. vishnu joshi has deposed that he questioned bhanudas and satisfied himself that the boy himself desired to make the adoption. thereby i become constantly weak in health. he has admitted that the relations between bhanudas and his natural father, defendant 9, were precisely the same as those between himself and his own sons. under those.....broomfield, j.1. the appellant in this case was the plaintiff in the court below. he brought a suit for possession of lands and houses at nerle in the satara district which formerly belonged to one bhanudas. the property is now in the possession of the defendants who claim the greater part of it on behalf of defendant 1, a minor alleged to have been adopted by bhanudas on 4th march 1930. bhanudas was himself a minor then aged 14 years and 7 1/2 months. he died of heart disease on 19th october 1931. the plaintiff is a cousin belonging to another branch of the family, but he would admittedly be the heir and entitled to the property but for the adoption of defendant 1. he has denied that the adoption took place in fact, and, if it did take place, he contends that it was invalid, because.....
Judgment:

Broomfield, J.

1. The appellant in this case was the plaintiff in the Court below. He brought a suit for possession of lands and houses at Nerle in the Satara district which formerly belonged to one Bhanudas. The property is now in the possession of the defendants who claim the greater part of it on behalf of defendant 1, a minor alleged to have been adopted by Bhanudas on 4th March 1930. Bhanudas was himself a minor then aged 14 years and 7 1/2 months. He died of heart disease on 19th October 1931. The plaintiff is a cousin belonging to another branch of the family, but he would admittedly be the heir and entitled to the property but for the adoption of defendant 1. He has denied that the adoption took place in fact, and, if it did take place, he contends that it was invalid, because Bhanudas was too young to understand the nature of the adoption and was also ill, and moreover the adoption was brought about by undue influence exercised by defendant 2, his uncle and the father of the adopted boy, and by his own natural father defendant 9. The trial Court has held that the adoption is proved and valid and dismissed the suit.

2. The appeal raises questions both of fact and law. The questions of fact are: (1) Did Bhanudas in fact take defendant 1 in adoption with the necessary ceremonies (2) Were his mental development and state of health such that he was capable of understanding the nature and consequences of the act of adoption? (3) Was the adoption his own act or was it the result of undue influence exercised on him by defendants 2 and 9 The point of law is whether, if these questions are decided in favour of the defendant, as they have been decided by the trial Judge, an adoption by a boy aged 14 1/2 years is legal and valid. The witnesses to the adoption are defendant 2, the father of the adopted boy, Vishnu Joshi the priest who officiated, another Vishnu a photographer who took the usual group photograph and two other persons Sunda and Krishna Sidoji Patil who were present. These witnesses were all believed by the trial Judge, and we can see no good reasons for disbelieving them. There is also a document called a yadi, which is a list of signatures of the persons present, a regular deed of adoption in the handwriting of Bhanudas himself and the photograph.

3. The only facts elicited, which can by any possibility be described as even unusual, are that the ceremony took place not in Bhanudas's own house but in that of the priest, that there were no printed invitation cards and people from outside Nerle were not invited and that some people were not present who might have been expected to be there, for instance the wives of defendant 2 and defendant 9 and the village officers. But it was desired to have a photograph and it seems, for reasons which have been explained in the evidence, that Bhanudas' house was not suitable and so they chose the priest's house which was suitable and convenient, being close by. It was a very unusual and rather tragic sort of adoption, only rendered necessary by the fact that this boy Bhanudas was dangerously ill. It is not at all surprising that they did not want to invite large numbers of people and make a festival of it. Defendant 2 in his evidence has explained that defendant 9's wife Anandibai, the boy's natural mother, was distressed at the idea that her son had to adopt a boy at so early an age and preferred to stay at home. That seems perfectly natural. Defendant 2's wife is said to have been ill. Plaintiff has examined a man called Vinayak who says that he was present at the adoption and his signature is one of those on the yadi. But, according to ceremony was performed. That is contrary to what all the J other witnesses say and it is a ridiculous assertion. It is admitted that Bhanudas' father and uncle desired the adoption. In fact plaintiff's case is that they brought it about. There could be no possible difficulty about the hom, especially as the ceremony took place in the priest's house, and Vinayak himself admits that all the necessary paraphernalia were there. It is incredible that the hom ceremony would be omitted. There can be very little doubt, I think, that the plaintiff's denial of the fact of the adoption is dishonest. Then as to Bhanudas' mental and physical capacity. He had the ordinary education of a Brahmin boy of his age. He attended the vernacular school in his own village Nerle and reached the fourth standard at any rate. Then he went to the High School at Karad and learnt English. It appears from what his teachers say that he was not particularly clever, his powers of understanding were only 'tolerably good' and he had some difficulty in passing his examinations. However, he did pass them in the end and got into the third standard in English. Then his heart affection got worse and in October 1929, i. e., about six months before the adoption, he had to leave school.

4. The precise nature of the disease he was suffering from has not been explained, although Dr. Shripad, who attended him from October 1929, has beenexa-mined. Bhanudas' natural father, defendant 9, says that he used to have attacks of pain in the heart and exhaustion. The attacks lasted three or four days. At first they were only occasional. Between the attacks he was all right. He had two such attacks while he was at school at Karad. Afterwards they became more frequent. Dr. Shripad says that the disease was 'serious' when Bhanudas came under his treatment in October 1929, and also says that it was incurable. For the last four or five months of his life he was confined to bed. That, however, was long after the adoption. The doctor says nothing about having seen the boy at or about the time of the adoption. He is quite definite moreover that the disease never affected his brain in the least at any time. He has expressed an opinion that, having regard to the physical and mental condition of the boy, if anybody had explained to him what an adoption was and what were its consequences, he could not have understood it or followed it. The doctor was called as a witness for the plaintiff. His opinion may nevertheless be perfectly honest, but I agree with the learned trial Judge that it is of little or no value. It does not appear that he ever had any conversation with the boy on such subjects, and he admits that he was ignorant of facts in the family history which must have made the idea of adoption familiar to his patient. He was himself an adopted son and adoptions were extraordinarily frequent in the family. His adoptive father Keshav had no less than six natural sons, and all but one of them went into other families by adoption but were still living close by in the village. Vishnu Joshi has deposed that he questioned Bhanudas and satisfied himself that the boy himself desired to make the adoption. The witnesses Sunda and Krishna Sidoji Patil both say that Bhanudas had told them of the adoption beforehand and asked them to come. I have already mentioned that Bhanudas himself wrote the adoption deed. This contains the recital:

I am suffering from heart disease and there is no telling what eventuality might take place at any moment. So in order that my line might continue I asked your father for giving you in adoption to which he consented.

5. Learned Counsel for the plaintiff argued that this was an unnatural statement for a boy of fourteen and a half to make. But I am unable to agree. Heart attacks of the kind from which he appears to have been suffering are most alarming and distressing things, and I feel no difficulty whatever in believing that the boy must have felt that he was unlikely to live very long. On 27th August 1930, he made an application to the Collector in which he said:

For nearly a year or one year and a quarter I am suffering from heart disease. Thereby I become constantly weak in health. Hence on account of the apprehension as to what might happen at any moment and as I have no progeny I have taken in adoption in proper form Anant, the eldest son of Murlidhar Vithal, with the intention of perpetuating my name. You should sanction the same.

6. This application was probably made because adoptions in watan families have to be reported to the Collector under Section 34, Watan Act. In any case an inquiry was held by the revenue officers and Bhanudas was twice examined, once on 3rd March 1931, and again on 13th October 1931, which was only six days before his death. In these statements he explained that he was himself an adopted son and that he had taken defendant 1 in adoption because he was suffering from heart disease and might die at any time. He gives his age wrongly as seventeen, but as far as I can see nothing turns upon that. There is nothing very abstruse in the idea of adopting a son or anything difficult to understand about the consequenees when the adopter is a male. When a girl or woman adopts to a deceased husband the position is rather different. Besides, as I say, it must have been a familiar idea in Bhanudas' family. We see no reason to doubt that Bhanudas was capable of understanding and did in fact understand what an adoption was and what it meant.

7. The plaintiff has disclaimed all personal knowledge and has adduced no evidence to prove his case of undue influence. He has admitted that the relations between Bhanudas and his natural father, defendant 9, were precisely the same as those between himself and his own sons. If his father and uncle desired the adoption, as they probably did, Bhanudas may have been influenced by them. But it cannot be seriously disputed, I think, that from his own point of view, according to Hindu ideas, an adoption was beneficial and meritorious. In that connexion I may mention Rajendro Narain Lahoree v. Sarada Soonduree Dabee (71) 15 W.R. 548, which I shall have to refer to again on the question of age. If the adoption benefited Bhanudas' own natural relations at the same time, to the detriment of his distant cousins, that makes no material difference. Neither he nor they owed any duty to the plaintiff. We were referred in this connexion to an unreported case Batchelor and Shah JJ. Bai Kashi v. Mohanlal Nagji Second Appeal No. 1004 of 1913. In that were dealing with an adoption by a girl aged sixteen to her husband, who had died at the age of five, and she adopted a man aged forty-two, who was both her uncle and her guardian. Under those circumstances the Court thought that Section 111, Evidence Act, applied and that the burden of proof was on the plaintiff, the adopted son, to satisfy the conscience of the Court that his adoption was made in good faith. It has been laid down in Bayabai v. Bala (70) 7 B.H.C.B. (Appx.) 1 and in several other cases that where an adoption by a young Hindu widow is set up against her, and to defeat her rights, the Court will expect clear evidence that at the time she adopted she was fully informed of those rights, and of the effect of the act of adoption upon them; and if it find that fraud or cajolery was practised upon the widow to induce her to adopt, or that there has been suppression or concealment of facts from her, it will refuse to uphold the adoption. We have no desire of course to throw the slightest doubt upon these principles, but we doubt whether such considerations have very much force in the case of an adoption by a boy. The minor girl has everything to lose. Instead of being the owner of the estate for her lifetime at any rate, she becomes a mere dependent. There is obviously a great temptation for interested persons to put pressure upon her. Such questions cannot arise in the case of a boy who is dangerously ill and knows that he is not likely to live very long. In that case he has nothing to lose and the adoption of a son, as I have already stated, is a meritorious and beneficial act.

8. As pointed out in Patel Vandravan Jekisan v. Patel Manilal Chunilal (91) 15 Bom. 565 the ordinary presumption is that an adoption is performed from proper and not from corrupt motives. We see no reason why any other presumption should be made in the circumstances present here. In any case, apart from presumptions, we are satisfied by the evidence that the adoption was Bhanudas' own voluntary aot and was not the result of any undue influence practised upon him. On all the questions of fact, therefore, we are in agreement with the views of the learned trial Judge. The point of law is more difficult. The difficulty arises from the fact that the law itself is somewhat obscure. There is no statute fixing the age at which adoptions may be made, for adoptions are excluded from the operation of the Indian Majority Act. Nor, as far as we are aware, are there any texts which bear directly on the matter of adoption. Mayne in his Hindu Law, para. 143, End. 10, says:

It is well settled that a person who is a minor under the Indian Majority Act can adopt or authorise his widow to adopt when he has attained the age of discretion according to Hindu law. In Jumoona Dassya v. Bamasoonderai Dassya (76) 1 Cal. 289 the Privy Council held that the age of 15 or 16 was according to the law prevalent in Bengal, to be regarded as the age of discretion. It corresponds to the age of majority which is fixed by the Dayabhaga school at the completion of the 15th year. According to the Mitakshara school, it is the completion of the 16th year. It may be the same for the Mitakahara school also, as it is quite possible to interpret the relevant rule as meaning the completion of the 15th year. The age of discretion cannot certainly be fixed earlier than the completion of the 14th year since the Legislature now treats a girl below 14 as a child for purposes of marriage. The age of discretion must be fixed by the law and cannot be treated as a question of fact in each case.

9. The reference to the Sarda Act in this passage is of no assistance in determining the minimum age when the adoption is made by a boy. If the effect of the Sarda Act is that a girl below fourteen cannot adopt, because for the purposes of that Act she is regarded as a child, it should follow that the minimum age for a boy would be eighteen. But that is admittedly not the case. It has been conceded on behalf of the plaintiff that an adoption may be made by a boy who has reached the age of discretion according to his personal law, and it has also been conceded that even under the Mitakshara it is sufficient if he has completed his fifteenth year. It is a little difficult also to understand what the learned commentator means by saying that the age of discretion must be fixed by the law and cannot be treated as a question of fact. The age of discretion for this purpose has not in fact been fixed by the law and yet the Courts have got to decide upon the validity of adoptions. The case which is commonly cited as authority for the proposition that an adoption may be made by a boy or girl of any age, provided that he or she has attained years of discretion, is Rajendro Narain Lahoree v. Sarada Soonduree Dabee (71) 15 W.R. 548 which I have already cited. No doubt Mitter J. said in that case that an adoption is not invalidated by the mere fact of the adoptive father being a minor, if he has attained the years of discretion. It was a case of an adoption by a boy, but, as the report does not show what his age was, the case is not of great assistance for our present purpose.

10. In Jumoona Dassya v. Bamasoonderai Dassya (76) 1 Cal. 289 which is cited in Mayne, an adoption had been authorised by a boy of fifteen or sixteen and the adoption was made by his widow. Their Lordships of the Privy Council held that, as he had attained the age of discretion according to the law prevalent in Bengal, he was competent to adopt or authorise the adoption. I do not think this case is any authority for the proposition that a boy under the age of fifteen can never make a valid adoption. There was a dispute in that case as to the age of the boy. It was alleged by one party that he was some years younger than fifteen. The finding on this point was that his age was fifteen or sixteen and their Lordships said that that being his age, the necessary understanding and discretion should be presumed. But because you can presume discretion in the case of a boy who has completed fifteen years, it does not follow that lack of the necessary discretion is to be presumed, whatever the evidence may be, where the age is less than fifteen.

11. There is a Madras case, Sattiraju v. Venkataswami A.I.R. 1918 Mad. 1072, which does no doubt lend some support to the argument advanced on behalf of the plaintiff. The headnote shows that the facts had no similarity with those in the present case. A widow, who had been authorised by her husband to adopt a boy if and when she chose, (and these words were interpreted to mean that she was to exercise her own discretion in the matter), adopted her own brother, when she was 11 years of age, on the interested advice of her father. It was held that the adoption made by the widow while a minor and without independent advice was void ab initio and could not therefore be validated by subsequent ratification. For the purposes of this case it was not necessary to determine what was the minimum age at which an adoption could be made by a male, and the observations of the learned Judges on that point are therefore obiter. But there is no doubt that Sadasiva Ayyar J. took the view that a male Hindu could not adopt before he had completed the age of 15. It is not clear that Oldfield J. was prepared to go quite so far as that. At any rate, in his judgment he stated his conclusions to be that sufficient maturity of understanding to enable the widow to comprehend the nature of her act is necessary, and further there must be cogent evidence of her having acted under the intelligent and disinterested guidance of her legal guardian, seeking bona fide to provide for a spiritual necessity with due regard for her interests, so far as it is compatible with such necessity. Assuming, however, that this case is an authority for the view that 15 is the minimum age at which an adoption may be made by either adoptive parent, that is not, as we understand the matter, the view which has been taken by this High Court.

12. In Patel Vandravan Jekisan v. Patel Manilal Chunilal (1991) Bom. 565 one Maneklal had died at the age of 15 years and ten months, and seven years after his death his widow adopted a son. The widow herself apparently was not a minor. But the adoption was objected to inter alia on the ground that Maneklal had died a minor. This objection was disallowed. The argument was put forward that discretion and majority, i.e., majority according to the personal law, are convertible terms, and apparently in this case the Court took the view that, according to the law prevailing in Bombay, the age of majority according to the personal law was 16 and not 15. Sir Charles Sargent, referring to Rajendro Narain Lahoree v. Sarada Soonduree Dabee (71) 15 W.R. 548 said:

Mitter J. obviously considered that the question was whether the youth had arrived at the age of discretion which enabled him to perform religious ceremonies prescribed for his salvation. It is true, as Mr. Mayne points out in his Hindu Law and Usages, the judgment does not state when the Hindu arrives at years of discretion so as to enable him to 'perform religious ceremonies prescribed for his salvation'; but as it is plain it may be before he attains his legal majority, it would be unreasonable to hold, in the present case, that he had not done so two months before he attained 16 when he would have ceased even in the eye of the law to be a minor.

13. So that evidently the Court took the view that the necessary understanding and discretion might be presumed in the particular case, although the boy by whom the adoption was authorised had not reached the age of majority according to his personal law Basappa v.Sidramappa : AIR1919Bom107 is a case of adoption by a widow whose age is given as about fifteen. It was held that the adoption was valid because the widow had at the date of the adoption attained sufficient maturity to comprehend the nature of the act. Sir Basil Scott, after referring to Mondakini Dasi v. Adinath Dey (91) 18 Cal. 69, said:

Similarly, in the present case there is nothing to show that at the date of the adoption in July 1912 Basava had not attained sufficient maturity of understanding to comprehend the nature of the act. In fact she was about fifteen years of age, and there is no reason to presume that a Hindu girl of that age who has been married for two years or more, living with her husband, does not realise what is meant by taking a son in adoption.

14. Clearly, therefore, discretion was treated as a matter of fact to be determined on the evidence. Murgeppa v. Kalawa A.I.R. 1920 Bom. 354 is an even stronger authority in support of the same view. That was a case in which an adoption had been made by a Hindu widow of the age of twelve, who had not reached puberty, and this Court held that the adoption was not valid, but it was not on the ground that she had not completed the age of fifteen years. Sir Norman Macleod said:

It seems to us that considering the importance of the act of adoption, it should be necessary that the adopting widow must have reached such an age of discretion that she must be able to realise the importance of her act, to make up her own mind as to the person she ought to adopt. There may be circumstances which will enable the Court to consider whether a widow has reached the age of discretion. That she has attained to puberty may be one circumstance but in this country not necessarily the only one. The actual age of the widow may be another test and probably the most important one. In this case I think both the tender age of the widow, and the fact that she has not reached the age of puberty, make it perfectly clear that she was not competent to know what she was doing.

15. Heaton J. said:

Certainly no ordinary child of twelve years of age is capable of volition of the kind here required unless he or she is a very exceptional person. There is nothing in this case to suggest that the young girl involved possessed such exceptional powers as that.

16. Another case is Parvatava v. Fakirnaik A.I.R. 1922 Bom. 105. Here also the Court was concerned with an adoption by a young widow, aged twelve and a half years in this case, and the adoption was held not to be valid. Macleod C.J. disapproved of the reasoning of the trial Court, which was that a girl of twelve and a half years must be able to make a valid adoption simply because it had been held that a girl of about fifteen years could do so. The learned Judge said (p. 309):

I regret I cannot agree with the logic of that decision. The intelligence of a young person in ordinary circumstances will keep on growing year by year and if the High Court laid down the limit of years of discretion as 15, it certainly would not follow that a girl of 12 1/2 would have attained to the same degree of discretion as a girl of 15. If once you depart from the limit of 15 which of course is purely an arbitrary one, then it would be easy to go back to any extent which would be absurd. But certainly I should not be disposed to think, taking all the considerations and circumstances and conditions of people of this class into account, that a girl younger than 15 could possibly exercise that volition of mind and that independence of judgment which would enable her to make a really valid adoption. A fortiori there would have to be very clear evidence to satisfy the Court that a girl of 12 or 12 1/2 years could exercise her own independent judgment in the matter of an adoption.

17. Shah J., whose opinion on a matter of this kind is entitled to very great weight, said (p. 311):

Without attempting to lay down any general rule as to whether at that age (12 1/2 years) a girl could ever make a valid adoption, it seems to be clear that in the absence of any clear evidence as to the special capacity of this girl to exercise an independent judgment at that age, I am not pre-pared to hold that she could exercise such judgment as is required in the case of adoption. The evidence in the case as to her capacity is meagre and does not go beyond this that she was an intelligent girl.

18. I think it is clear from these cases that, according to the view taken by this High Court, there is no hard and fast rule that an adoption by a youth or girl who has not completed the age of 15 years is necessarily invalid. On the contrary this Court has regarded the question of the possession of the necessary understanding and discretion as a question of fact to be determined on the evidence in the particular case. Since we have found in the present case that Bhanudas had sufficient maturity of understanding to comprehend the nature of the act of adoption and its consequences, we think there is no rule of law which requires us to hold that the adoption was invalid. The appeal therefore fails and must be dismissed with costs. There are cross-objections on behalf of defendant 9 on a matter of costs. The trial Judge made the following order: 'The suit is dismissed. Plaintiff to bear his own costs and pay those of defendants 1, 2 and 9. The taxing officer allowed two sets of costs, one for defendants 1 and 2 and one for defendant 9. But the plaintiff applied to the Judge objecting to this and he disagreed with the taxing master and ordered that only one set of costs should be allowed. It appears from the learned Judge's order that he interpreted the order 'suit dismissed with costs' as meaning that only one set of pleaders' fees should have been taxed and he held that the taxing master was wrong in allowing two sets of costs. He also considered on the merits that, as the defence of defendants 1, 2 and 9 was the same, there was no case for separate sets of fees. We find ourselves unable to agree with the learned Judge, however, on either point.

19. On the question of interpretation, the practice in the mofussil may have been in accordance with the learned Judge's view at the time, but it is now settled, see Mariyaya v. Shantirappa A.I.R. 1939 Bom. 338 and Shridhar Balkrishna v. Poona City Municipality : AIR1941Bom16 that 'suit dismissed with costs' means that plaintiff is to pay the costs of all the defendants, i.e., two or more sets, if separate costs have been incurred. An order for a single set of costs must be asked for at the time of hearing. Then, it is not really correct to say that the defence of defendants 1, 2 and 9 was the same. There is certain property in the possession of defendant 9 which he claims under a gift from Godubai, the adoptive mother of Bhanudas. That was a defence peculiar to defendant 9 in respect of which special issues had to be framed, and on one issue at any rate, the issue of limitation, which was decisive, defendant 9 succeeded. It is true that the piece of property involved is not very considerable. Nevertheless, as defendant 9 had an independent case in this respect and as it is admitted that he engaged a separate pleader, as he was entitled to do, we think the ordinary rule should be followed. We therefore set aside the Judge's order in this respect and direct that the order of the taxing master be restored and defendant 9 be given a separate set of costs. The cross-objections are allowed with costs. In the appeal there will be only one set of costs, because the appeal does not relate to the properties in the separate possession of defendant 9, and for the purposes of the appeal at any rate there is only one defence.


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