1. These are appeals by some of the defendants in a suit brought by the plaintiff, who was adopted by defendant No. 1 in the year 1920 as son to her deceased husband Girimalappa, to set aside certain alienations made by his adoptive mother after his adoption and to get possession of his adoptive father's estate.
2. The only issue which has been argued in these appeals is that the suit is premature by reason of an agreement between the plaintiff's natural father and defendant No. 1 at the time of the adoption, the effect of which was, according to the appellants, that the alienations by defendant No. 1 are valid for her lifetime. The agreement is thus set out in the adoption deed which is addressed by defendant No. 1 to the plaintiff :-
I have today adopted you as my son. You get all the rights which a son born of my womb would get. From today you should leave your natural father's name and tell my husband's name. And all my husband's property I myself shall make management (wahiwat) of and enjoy (upabhog) during my lifetime. After me you should take possession thereof and manage.
3. The learned trial Judge holds that this agreement is not binding on the plaintiff. He says :-
This agreement wholly postpones the rights of plaintiff as adopted son till after the death of the adoptive mother. The test by which it is to be judged is whether such an agreement is fair and reasonable and whether it is to be regarded as valid by custom., No plea of any custom is set up here ; and in a similar case our own High Court has held such an agreement is neither fair nor reasonable, vide Purshottam v. Rakhmabai (1913) 16 Bom. L.R. 57, also Krishnamurthi Ayyar v. Krishnamurthi Ayyair
4. In Purshottam v. Rakhmabai the facts were that a Hindu widow at the time of adopting a boy made an agreement with the natural father of the boy which provided that the widow was to continue in management of the property, that she was to retain all the rights she had of managing as long as she lived, of receiving the income, of recovering money, etc., and that she was to retain all the rights which she had in the absence of a son. Counsel in that case accepted the position that the proper criterion to be applied in testing the validity of an agreement of this kind was whether it was fair and reasonable. The Court found that the agreement in that case was not fair and reasonable and that it could not be held binding on the adopted son.
5. It seems to me that there are really two questions to be considered in this case which, though connected, are quite distinct. The first is whether the agreement with which we are concerned clothed the widow with the power of disposing of the property for the term of her life, The second question is whether, if so, the agreement is valid and binding on the adopted son.
6. On the question of construction, I must say, I feel some difficulty. It is to be noted that we are not concerned with any question of legal necessity. It has been found against the defendants that the alienations cannot be supported on any such ground, and that finding is not challenged in the appeals. The appellants' case is that defendant No. 1 was given a life interest in the property and that the alienations which she has made were within her powers as a life tenant, though they will become void on her death. According to this view it would be open to the adoptive mother to alienate the whole estate for the term of her life for any purpose whatever, even though the result might be that the adopted son was left without any means of support. This is so inconsistent with ordinary Hindu ideasi as to the position of an adopted son that it is difficult to believe that it could really have been intended.. It may be that all that was really contemplated by the parties was that defendant No. 1 should enjoy the estate as a manager which would have been a perfectly permissible arrangement. At the same time the agreement as it stands imposes no restrictions whatever on the powers of the widow except the limitation to her life. It seems, therefore, that, whatever the real intentions of the parties may have been, it must be regarded as an arrangement which permitted defendant No. 1 in practice to deal with the estate at her own sweet will without any reference to the rights and interests of the plaintiff. Practically the whole estate has been alienated, and, though no doubt it is now conceded that the alienations would become void on the death of defendant No. 1, that has not always been conceded, and in any case as long as defendant No. 1 lives the plaintiff is deprived practically of the benefit of his estate.
7. The leading case on the law relating to adoptions subject to conditions is Krishnamurthi Ayyar v. Krishnamurthi Ayyar . The conclusions of their Lordships in that case are thus summarised in the headnote :-
Having regard to a consensus of judicial decision,...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. But an agreement or consent by the natural father is not effectual in; law, or by custom, to validate any other disposition taking effect after the adoption and curtailing the rights of the adopted son as a co-sharer.
In this summary I think there is nothing on which the appellants can rely. But in one passage in the judgment their Lordships say (p. 264) :.the consent of the natural father shows that it is for the advantage of the boy, and that the mere postponement of his interest to the widow's interest, even though it should be one extending to a life interest in the whole property, is not incompatible with his position as a son.
8. It should be noted that their Lordships are here purporting to give the effect of the consensus of judgments of the various High Courts.
9. It is arguable and it has been argued before us that when their Lordships speak of a life interest in the whole property that might include an unlimited though temporary power of alienation. But no question of that kind was in fact considered by their Lordships at all, and we have not been referred to any authority in support of the view that custom, which, as is now settled, is the only foundation for the doctrine that the rights of the adopted son can be curtailed by agreement in a case like this, extends to the reservation to the adoptive; mother of unlimited powers of alienation for the period of her life. Mr. Datar who appears for the appellants has indeed admitted that he has not been able to find any case which bears directly on this point.
10. I think this is the ground on which our decision should be based. Pursho tam v. Rakhmabai (1913) 16 Bom. L.R. 57 relied on by the trial Judge would also no doubt support the view that the agreement on which the appellants rely is not binding on the plaintiff. This case though cited in the argument before the Privy Council is not referred to in the judgment. It is not therefore overruled and I doubt if it can be distinguished on the facts, I think it is clear that if it had been suggested in that case that the agreement gave unlimited powers of disposal of the corpus of the estate even though temporarily as well as unfettered powers of disposal of the income the Court would have been even more emphatic than it was about the unreasonableness of the arrangement and its inconsistency with Hindu ideas. The difficulty is, however, that the Court in that case applied a criterion which in the light of the Privy Council judgment must now be regarded as not the right one, or at any rate not the principal one. Custom is the determining factor, and, though the trial Judge is wrong in his view that the existence of the custom need be proved in each particular case [see Aubhoy Chum Maji v. Shoski Bkusan Bose I.L.R. (1988) Cal. 155], it is obvious I think that the party who relies on custom must satisfy the Court that it is comprehensive enough to cover his case. On that point as I say we are not satisfied. We think, therefore, that on the only ground which has been argued in these appeals the appellants fail and the appeals must be dismissed with costs.