(1) This is a plaintiff's appeal. It arises out of a suit for partition of immovable property mentioned in schedule 1 and movable property mentioned in schedule 2 of the plaint. In appeal the claim relating to all the items of the movable property mentioned in schedule 2 is not pressed but it is restricted to those items which are admitted by the defendants 1 and 2 in their written statement. Immovable property mentioned in schedule 1 of the plaint consists of 800 acres and 34 gunthas of agricultural land situate at villages Gonapur, Dapura, Navkhed, Mailapur and Waki, taluq and district Akola, a house and gaiwada in village Gonapur, and an open site in village Waki. The claim of the plaintiff is founded on an alleged adoption by Kausalyabai on 16-9-1947. Following facts are not in dispute in appeal. The genealogical tree of the parties is as follows:
KADTAJI (died)_________________________________\____________________________ Zabuji (d. 1923) Baburao (deft. 1) _______________\_________Deorao (d. 9-7-35) =Kausalyabai Rambhau Sheshrao Ramesh(d. 6-5-1949) (d. 1945) (deft. 2) (deft. 5) _______\_______Punjabrao (Plff.) (Alleged to be adopted). Vishwasrao Nilkanth(deft. 3) (deft. 4).
Interest of defendants 3 and 4 is looked after by their guardian-ad-litem maternal grandfather Atmaram and the interest of defendant 5 is looked after by his guardian-ad-litem Baburao (deft. 1). Baburao also died during the pendency of this appeal and is now represented by his legal representatives respondents 6 to 11, besides those who were already on record.
(2) After the death of Deorao, Kausalya had made applications that her name be mutated in place of her deceased husband Beorao. Her aforesaid claim was contested by Baburao, defendant No. 1 and ultimately a compromise was arrived at between them on 14-4-1936 and was reduced to writing in the form of a deed of maintenance (ex. 1-D-7) executed by Banurao in favour of Kausalya whereunder he agreed to give her a sum of Rs. 450/- per year; ill case of default the deed further creates a charge over certain property mentioned in the deed, a kararnama was also executed by Kausalya in favour of Baburao on the same day (Ex. 1-D-21). Material part of this kararnama for the purposes of this appeal is that thereunder Kausalya agreed not to adopt without the permission of Baburao. Kausalya then left the village Gonapur where the family was staying and went to stay with he father and mother at Sindi, then went to her maternal uncle's place at Neri but after 4 or 5 years' stay there again returned to Sindi, stayed for a little while in the house of one Bhaurao, a cousin of the plaintiff, stayed with him for a year or so and then purchased a house for herself and stayed in that house separately till her death. For a certain length of time her mother Anusuya (1-5 D. W. 7) stayed with her. The plaintiff is a resident of village Sindi and is staying there with his mother Sarja and his brothers. His name in the natural family was Shanka and his father's name was Zinguji. At the material time the plaintiff's father was not alive but his mother Sarja was alive (P. W. 5).
(3) On 15-9-1947 an agreement was executed by the plaintiff as Shankar son of Zinguji in favour of Kausalya whereunder he agreed to the terms proposed by Kausalya that in the event he was adopted by her he will lay claim only to 1/3rd of the property, that 2/3rd property would belong exclusively to Kausalya and she shall be at liberty to dispose it of in any manner she liked. This deed was presented by Kausalya for registration at Anjangaon in the Sub-Registrar's officer on 27-9-1947. It appears that it was not properly stamped and therefore it was impounded on that day and thereafter on realisation of stamp duty and penalty it was validated on 25-8-1948 and was then registered on 15-9-1948 (Exhibit A-1).
(4) Next day, i.e. on 16-9-1947, a deed purporting to be an adoption deed was executed by Kausalya in favour of the plaintiff. The deed recites the fact of adoption and also that the plaintiffs name from the natural family was changed from Shankar to Punjabrao. Adoption deed (Ex. P62) was presented at Anjangaon for registration by the plaintiff on 27-9-1947 and was registered on the same day.
(5) On the same day, i.e. on 27-9-1947, a sale deed was executed jointly by Kausalya and deceased husband of Kausalya, in favour of Gulabrao Sheoramji Deshmuch and Damodhar Laxman Nathe. It purports to sell 3 pie sh re in almost all the agricultural fields described in schedule I of the plaint. This sale deed was presented for registration before the Sub-Registrar, Anjangaon, by Kausalya and it was registered on the same day. It is for a consideration of R. 2,000/-, it is Exhibit 1 D. 19 on record.
(6) About a year thereafter, i.e. on 29-7-1948, a sale deed was executed for a consideration of Rs. 30,000/- by the plaintiff in his capacity as the adopted son of Deorao, in favour of Shantilal. The property sold under the sale deed consisted of half share in about 33 or 34 fields mentioned in schedule 1 of the plant. This deed is also signed by Kausalya as a party consenting to the sale and in her consent note she has admitted that the plaintiff was her adopted son. It was presented before the Sub-Registrar Anjangaon for registration on 30-7-1948 and both the plaintiff and Kausalya have admitted execution of this deed before the Sub-Registrar.
(7) On 26-6-1948, the plaintiff gave a notice through his pleader Mr. Pagay to Baburao, defendant No. 1, claiming -/8/- share in the property and for its partition and separate possession. The claim was laid on the footing that he was an adopted son of Deorao. Defendant No. 1 gave a reply to this notice Ex. 1-D. 5-A. The date however is not known. He has denied the plaintiff's right. The plaintiff again gave another notice on 12-7-1949 (Ex. 1. D. 3). As already stated Kausalya died on 6-5-1949. The plaintiff instituted this suit on 17-10-1950.
(8) The plaintiff's case in brief is that the property mentioned in schedules 1 and 2 was the ancestral property in the hands of Baburao and Deorao of which Baburao was the manager. While being joint with Baburao, Deorao died on 9-7-1935 leaving behind his widow Kausalya, Kausalya adopted him as a son to Deorao on 16-9-1947 and he was therefore entitled to half share of Deorao in the ancestral property. He further pleaded that under the agreement dated 14-4-1936, Baburao made Kausalya to agree that she would not adopt a boy without his permission. This condition was not at all binding on Kausalya in law. She had exercised her right to take a boy in adoption to her husband and has adopted the plaintiff on 16-9-1947 with all necessary Hindu ceremonies. She also executed an adoption deed in his favour on 16-9-1947. The plaintiff has therefore got all the rights of Deorao in the joint family property. On these allegations the plaintiff claimed a declaration that he is a duly and validly adopted son of Deorao and as such entitled to half share in the family property. He further claimed partition and separate possession of his half share.
(9) The suit was contested by defendants 1 to 5 on various grounds. Defendants 1 and 2 have filed a common written statement. They admit that Kadtaji had to sons, Baburao and Zabuji and they constituted a joint Hindu family. After the death of Kadtaji and Zabuji defendants 1-5 and Deorao constituted a joint Hindu family. They also admit that Banurao was the manager of the joint family. After the death of Deorao and was later married to Kausalya. On the death of Deorao, Kausalya, was only entitled to get maintenance out of the joint family property and was not entitled to half share in the estate; the maintenance paid to her was not in any manner insufficient or small in view of agricultural depression prevailing in Berar since the year 1930; the agreement executed by Kausalya on 14-4-1936 was a duly and validly executed document and was in accordance with law, it was therefore binding on Kausalya, the alleged adoption of the plaintiff, even if any, was therefore invalid in the eye of law. They also denied the factum of adoption of the plaintiff. These defendants thus denied the plaintiff's claim in toto. In special pleadings defendants 1 and 2 pleaded that Deorao was ailing for about a year prior to his death on 9-7-1935; he was unable to digest any good and was sinking day by day; Kausalya was attending on him; during his lifetime Deorao expressed in the presence of Kausalya and several other persons that he did not desire to take any boy in adoption and he was opposed to the idea of adoption altogether; he had no intention of adopting a son to himself; nor did he like his wife Kausalya to adopt a son to him after his death; he had so expressed his desire to Kausalya; and with this idea he executed a document styled Vyawasthapatrak on 29-6-1935, expresse ding a desire that Baburao (defendant 1 ) should give Rs. 200/- per year to Kausalya for her maintenance, if she desired a separate maintenance and if she did not remarry after his death; that about two days before his death Deorao, when he had lost all hopes of recovery, actually prohibited Kausalya from taking any body in adoption without the permission of Baburao. These defendants further stated that by the aforesaid documents further stated that by the aforesaid document of 29-6- 1935 Deorao expressed an unequivocal intention to separate from the joint family and effected a severance of status by declaring his separate estate to the defendant No. 1. According to them, this document amounts to a will by Deorao. It was his last will executed by him whilst he was in a sound and disposing state of mind. The will was binding on Kausalya and the plaintiff. Even if the plaintiff is able to prove that he has been validly adopted by Kausalya, the adoption cannot in law divest defendant No. 1 of the estate of Deorao which he obtained under the will. They further plead that this will also operates by necessary implications as a prohibition to Kausalya to adopt a son to him. On this ground also the adoption is invalid. They further plead that defendant No. 1 had executed a maintenance deed in favour of Kausalya on 14-4- 1936 agreeing to give her Rs. 450/- per year by way of maintenance and Kausalya in her turn had executed a kararnama in his favour whereunder she had agreed not to adopt any boy without the permission of Baburao. This agreement was executed by Kausalya in obedience to the desire of her husband and the direction expressed by him before his death. There was therefore not only implied prohibition but also an express prohibition to Kausalya to adopt without the permission of Baburao. According to these defendants Kausalya never intended to adopt the plaintiff and the alleged adoption was nothing but a farce; no rights were intended to be created in favour of the plaintiff and they have not been created in favour of the plaintiff by this adoption; even if there was any adoption of the plaintiff it was invalid in law because it was without the consent of Baburao (defendant 1). Without prejudice to the above pleas the defendants further pleaded that the plaintiff had executed two sale deed one on 27-9-47 and another on 29-7-48 in favour of the vendees mentioned therein; the plaintiff therefore cannot lay any claim to the property sold by him under those sale deeds even if he proves the adoption. At any rate, the property conveyed by the plaintiff under these sale deeds will have to be taken into account in determining the plaintiff's share at the time of partition.
(10) Defendants 3 and 4, viz. Vishwasrao and Nilkanth sons of deceased Rambhau who was a son of Baburao adopted the written statement of defendants 1 and 2 and they further pleaded that 4 acres and 4 gunthas out of Section No. 33/2 and S. Nos. 43 and 45 situate at muza Gonapur, S. Nos. 5/1 and 22/2 situate at mauza Dapora and S. No. 9 situate at mauza Nawkhed are the self-acquired property of their father Rambhau and is therefore not liable to be partitioned. It is their case that Rambhau had purchased these fields with the funds supplied to him by his maternal uncle Atmaram Maruti.
(11) Defendant No. 5 adopted the written statement of defendants 1 and 2. It is not necessary to state other pleas raised by the defendants because they are now pressed before us.
(12) After the written statements of the defendants the plaintiff amended his plaint and pleaded that the sale deed dated 29-7-1948 executed in favour of Shantilal was obtained by Shantilal fraudulently and the whole of the consideration mentioned therein was false and fictitious and it was not binding on him. With the permission of the Court Shantilal was joined as a party to the suit. The trial Court held that the aforesaid sale deed dated 29-7-1948 was a fictitious document and the consideration recited therein was false. He has therefore held that the said sale deed was not binding on the plaintiff. Shantilal has not preferred any appeal against that decision of the trial Court and it is therefore not necessary to consider in detail this aspect of the case and the pleas raised in this respect. By another amendment to the plaint the plaintiff debited the alleged Vyawasthapatra dated 29-6-1935 executed by Deorao. He pleaded that the said document was not genuine. He further denied that even if it is established that it was executed by Deorao, he had never intended to execute it as a will and the document is not in a law a will.
(13) It is pertinent to note that the plaintiff had raised no plea in respect of another sale deed dated 27-9-47 which according to the defendants was executed by him.
(14) The trial Court held that Deorao had not at any time expressed that he did not desire to adopt a son or that Kausalya should not adopt a son to him; Deorao also had not executed the Vyavasathapatra dated 29-6-1935; Deorao had at no time prohibited Kausalya from adopting a son to him; Kausalya had executed a kararnama in favour of defendant No. 1 Baburao on 14-4-1936 and had thereunder agreed not to adopt a son without the latter's permission; this agreement was binding on her; adoption of the plaintiff by Kausalya without the consent of Baburao was therefore invalid in law. The trial Court has also further held that Kausalya had at no time intended to adopt the plaintiff as a son to her husband and the factum of his adoption was not proved by the plaintiff. The trial Court further held that the defendant have not been able to prove that there was any half-acquired property of Rambhau. In view of the findings that the factum of adoption was not proved and that the kararnama dated 14-4-1936 was binding on Kausalya the trial Court dismissed the plaintiff's suit. The plaintiff has therefore preferred this appeal.
(15) The parties to this appeal are Shudras by caste and it is not in dispute that they are governed by the Bombay School of Hindu Law.
(16) Mr. Manohar learned counsel for the appellant, challenges the findings of the trial court on two issues namely, the factum of adoption and the binding nature of the kararnama dated 14-4-1936; on the other hand, Mr. M. R. Bobde learned counsel for the respondents supports the findings of the trial Court on these two issues and further contends that the trial Court was in error in holding that Deorao had not executed the vyavasthapatra dated 29-6-1935, and that there was no self-property of Rambhau. Mr. Bobde has also further contended that in view of the two sale deeds executed by the plaintiff and Kausalya on 29-7-1948 and 27-9-1947, the plaintiff has divested himself of the properties under the sale deeds and as such he is not entitled to institute this suit.
(17) The first question that arises for consideration in this case therefore is whether the plaintiff has been able to prove that he had been validly adopted by Kausalya, on 16-9-1947. As already stated the parties are Shudras and therefore the only thing which is necessary to establish the factum of adoption is the ceremony of giving and taking. The law in this respect is well-settled and according to Mulla (page 655)
'no religious ceremonies, not even datta homan, are necessary in the case of Sudras . . . . . .. . . . . . .The physical act of giving and receiving is absolutely necessary to the validity of an adoption. This is so not only in the case of the twice-born classes, but also in the case of Sudras. It is of the essence of adoption, and the law does not accept any substitute for it. Mere expression of consent, or the execution of a deed of adoption, though registered but not accompanied by an actual delivery of the boy, does not operate as a valid adopted. To constitute giving an taking in adoption all that is necessary is that there should be some overt act to signify the delivery of the boy from one family to another'.
(18-26) (After discussion of oral evidence His Lordship proceeded.)
(27) Turning to the documentary evidence chronologically, the first document is the kararnama executed on 15-9-47, i.e. a day prior to the date of adoption by the plaintiff in favour of Kausalya (Ex. A-1 in appeal). This document was not filed by any of the parties in the case before the trial Court though it was referred to in the evidence of Atmaram (P. W. 6) and plaintiff (P. W. 7) and a certified copy thereof was also tried to be obtained by defendant No. 1 for tendering it in evidence, as it appears from paragraph 66 of the judgment. The relevancy and importance of the document cannot be in dispute. We were of the opinion that the production of this document would be of assistance to us in the matter of determination of this important issue. We therefore directed the plaintiff to file this document on record. The plaintiff has not filed the original on record but has filed a certified copy thereof in this Court. After hearing the parties we then admitted this document on record. As regards its relevancy no objection was raised by the respondents. We also examined the plaintiff as a witness in this case on this document. He has proved that he is unable to produce the original document and has admitted execution of the original. An opportunity had also been given to the respondents to cross-examine the plaintiff and we heard the parties on this document. As already stated even before the trial Court it was defendant's case that the kararnama was executed by the plaintiff in favour of Kausalya but its contends only were not known. It being a document relating to adoption it was not possible for the respondents to get a certified copy. Now the document is before us and it clearly shows that a day previous to the adoption, there was an agreement between the plaintiff and Kausalya; Kausalya was ready to adopt only if the plaintiff would agree to her becoming owner of the 2/3 of Deorao's half share in the property and the plaintiff on adoption becoming owner of Deorao's 1/3rd share. The plaintiff specifically agreed to this condition of Kaualya and the kararnama evidences this agreement. This document had been presented for registration by Kausalya on the same day the deed of adoption had been presented before the Sub-Registrar Anjangaon for registration.
(28) Second document is the deed of adoption to which we have already referred. This document was presented for registration by Punjabrao and its execution was admitted by Kausalya before the Sub-Registrar. Mr. Bobde, in the first instance, contends that this document is inadmissible in evidence. We really fail to understand the contention that the deed of adoption is irrelevant to the decision of an issue of adoption. In the majority of cases, as in the instant case execution of a deed of adoption forms a part of the transaction of adoption itself, and is relevant under section 6 of the Evidence Act. Apart from it, it is the record of the fact of adoption and can be used to corroborate the testimony of witnesses in Court. Further, the deed contains the statement of Kausalya who being dead could not be called to the witness-box. The statement relates to the relationship by adoption and is also admissible under sub-section (5) of section 32 of the Evidence Act.
(29) The value of a deed of adoption in deciding the factum of adoption cannot be denied. Biradh Mal v. Prabhavati is an instance where practically execution of a deed of adoption was found to be sufficient evidence of the factum of adoption and in Diwakar Rao v. Chandanalal Rao. ILR 44 Cal 201: AIR 1916 PC 81 absence of an adoption deed was considered to be a very important circumstances negativing the factum of adoption. The contention of Mr. Bobde that the deed of adoption is inadmissible in evidence in deciding the issue of factum of adoption must therefore be rejected.
(30)It is next argued by Mr. Bobde that though there is a recital in the deed about Sarja giving the plaintiff in adoption there is no recital in the deed about Kausalya receiving the plaintiff in adoption. This contention also, in our opinion, has no force. The deed recites:................
'You have been adopted as a son and therefore from today you have become my son and you have obtained the rights of a natural son. These rights have been obtained by you by virtue of the ceremonies performed today and this deed of adoption.'
These recitals clearly amount to Kausalya's accepting the plaintiff as her adopted son. This deed was presented for registration on 27-9-1947 before the Sub-Registrar, Anjangaon, and Kausalya has admitted its execution. It is nearly after 11 days after the adoption. On the same day, i.e. 27-9-1947, a sale deed (Ex. 1. D. 19) was executed jointly by the plaintiff and Kausalya in favour of Gulabrao Deshmukh and Nana s/o Laxmanarao Nathe of certain properties. In this sale deed the plaintiff has been described as a son of Deorao. Kausalya has admitted execution of this joint sale deed before the Sub-Registrar. Nearly after 10 months another sale deed was executed (Ex. 1 D-20) by the plaintiff in favour of Shantilal in respect of certain properties. Kausalya has appended her sammati (consent note) and in this consent note she has described the plaintiff as her adopted son. Execution of this sale deed is admitted by Kausalya before the Sub-Registrar. No doubt, as already stated, the sale deed has been held to be a fictitious document and without consideration by the learned Judge of the trial Court but the fact that Kausalya has admitted the plaintiff as her adopted son at that time is relevant for the decision of this issue. This documentary evidence on behalf of the plaintiff and the circumstances discussed above leave no doubt in our mind as regards the factum of adoption. It is not possible for us to accept the conclusion of the learned Judge that all what happened was only a farce and Kausalya never intended to adopt the plaintiff as a son. Kausalya was harassed by the first defendant in the matter of payment of maintenance. She therefore had decided to adopt and adopted the plaintiff who was a relation of hers and who was known to her. The plaintiff's natural mother Sarja gave him in adoption and accepted him in adoption. It would be too much to imagine that about 100 people had gathered in a public place like Mahdeo Mandir a photograph was taken, a kararnama was executed a day prior to the adoption and a deed of adoption was executed on the next day merely for the sake of a farce.
(31) (After discussion of some more evidence His Lordship proceeded) Disagreeing with the learned Judge of the trial Court we hold that the plaintiff has established the fact of adoption viz., that he was given in adoption by his mother Sarja and received in adoption by Kausalya.
(32) It is next to be seen whether this adoption being without the consent of the first defendant is invalid in law in view of the kararnama (Ex. 1-D-21) executed by Kausalya on 14-4-1936 in favour of the first defendant Baburao. It is the contention of Mr. Manohar that this kararnama being opposed to public policy is void. He has placed reliance on the decisions in Jaganadha v. Kunja Dihari, AIR 1919 Mad 447 and Sadashiv Waman v. Reshma, ILR (1938) Bom 84: (AIR 1938 Bom 1) and observations of Mayne at page 200 and observations at page 164 of Gopalchandra Sarkar, Sastri. Mr. Bobde, on the other hand contends that whatever be the legal position in respect of the agreement whereunder a widow is absolutely prohibited from taking a boy in adoption, it has no application to the present agreement which does not absolutely debar Kausalya from adopting a son. She has been only prohibited from adopting a son without the consent of the first defendant. Such an agreement cannot be said to be opposed to public policy. He has referred us to the warnings sounded in Fender v. Mildmay, 1938 A. C. 1 and Janson v. Driefontein Consolidated Mines Ltd., 1902 A. C. 484.
(33) As already stated it is not in dispute that on the death of Deorao Kausalya had filed applications in the revenue Court for the mutation of her name in place of her deceased husband Deorao in revenue papers. Her applications were opposed by the first defendant, the then karta of the joint family. A compromise was ultimately effected between them and was evidenced by two documents Exhibits 1. D-7 and 1. D-21, both executed on the same day i.e. 14-4-1936, and at the same time. Exhibit 1. D-7 is a deed of maintenance executed by Baburao in favour of Kausalya whereunder he agreed to give Rs. 450/- per year to Kausalya as maintenance, and Exhibit 1. D-21 is a kararnama executed by Kausalya in favour of Baburao whereunder she inter alia agreed not to adopt without the consent of defendant No. 1 Baburao. The question is whether Exhibit 1. D-21 executed by Kausalya in favour of defendant No. 1 is opposed to public policy.
(34) The term 'public policy' has not been defined. But it is generally understood in the sense that which is best for the common goods of the community. In view of the generality of the principle it has been as observed in 1938 AC 1 and 1902 AC 484 repeatedly pointed out that
'Public policy is always an unsafe and treacherous ground for legal decision . . . . . . .Public policy is a very unstable and dangerous foundation on which to build until made sage by decision.' (1902 AC 484. 'Public policy is a vague & unsatisfactory term, and calculated to lead to uncertainty & error, when application to the decision of legal rights.' 1938 AC 1. The expression 'unruly horse' has been very certain principles are by now well established. In 1938 AC 1, Lord Atkin at p, 12 of the report observed:
'But there is no doubt that the rule exists. In cases where the promise is to do something.
'Contrary to public policy which for short I will call a harmful thing or where the consideration for the promise is the doing or the promise to do a harmful thing a judge, though he is on slippery ground, at any rate has a chance of finding a footing. The contract is unreasonably to restrict a man's economic activities, to procure a marriage between two persons to oust the jurisdiction of the court. These things are decided to be harmful in themselves. To do them is injurious to public interest. But the doctrine does not extend only to harmful acts it has to be applied to harmful tendencies. Here the ground is still less safe and more treacherous.'
Explaining the aforesaid expression 'harmful tendency of a contract' Lord Atkin further at page 13 of the report observed:
'It can only mean, I venture to think, that taking that class of contract as a whole the contracting parties will generally, in a majority of cases or at any rate in a considerable number of cases, be exposed to a real temptation by reason of the promises to do something harmful, i.e. contrary to public policy; and that it is likely that they will yield to it. All kinds of contracts provide motives for improper actions, e.g., benefits deferred until the death of a third party, and contracts of insurance. To avoid a contract it is not enough that it affords a motive to do wrong; it must surely be shown that such a contract generally affords a motive and that it is likely to be effective.'
(35) In AIR 1919 Mad 447, Wallis C. J., held that an agreement by which a widow undertook not to adopt in consideration of the assignment of two villages to her was void as contrary to public policy. This ratio of this decision in our view is that an agreement between a male coparcener and a widow of a deceased coparcener which imposes a restraint on the exercise of a widow's right to adopt a son to her deceased husband is opposed to public policy, even if there be a valuable consideration for such an agreement. It is true as contended by Mr. Bobde that in that case a widow had been given by her husband an authority to adopt but in our view it should make no difference. The authority given to her husband to adopt does not mean and cannot mean a command to her to adopt. In certain parts of India to enable a widow to adopt she had to have an authority of her husband, in certain other parts the consent of the sapindas, yet in certain other parts a widow could adopt without an authority of her husband and without the consent of the sapindas. A widow falling in the first two categories came on par with a widow of the last category when she had an authority of her husband or consent of the sapindas to adopt. In all these cases it was not obligatory on the widow to adopt but it was her choice to adopt. An agreement in restraint of the exercise of that power is held to be opposed to public policy and therefore void.
(36) In ILR (1938) Bom 84 : AIR 1938 Bom 1 facts were: Senior widow executed a deed of relinquishment in favour of the junior widow whereunder she relinquished her right to adopt. Thereafter the senior widow adopted a son. A question arose whether this adoption by the senior widow after having relinquished the right to adopt in favour of the junior widow is valid. An argument was raised that the adoption was valid. The agreement executed by the senior widow in favour of the junior widow being in restraint of the exercise of her right to adopt was opposed to public policy and was therefore void. In repelling the argument, Divatia J., observed:
'I will take the latter argument first, (relinquishment being against the policy of Hindu Law). There had been cases for instance, Suriya Rau v. Raja of Pitapur, ILR 9 Mad 499, in which it has been held that the prohibition to adopt was against public policy. But all these cases were not between co-widows but between a widow on the one hand and some other person claiming to be interested in the estate on the other hand, in which the arrangement was that the widow should not adopt with the result that the line of succession would change. It is quite clear that such an arrangement under which a widow agrees not to adopt at all or is prohibited from adopting would be against public policy, and I need not go into the reasons why it is so. But the case of co-widows does not stand on the same footing. Both the widows have got the right to continue the line by adoption, but the senior widow has a preferential right'. (Page 90 (of ILR Bom) : (pp. 2, 3 of AIR) These observations affirm the view taken in AIR 1919 Mad 447. These two decisions have been cited with approval by Mayne in 'Hindu Law' (11th Edition) at page 200. The learned author observed:
'A widow cannot bind herself by an agreement with the reversioners or others not to adopt a son to her husband. Such an agreement is void as contrary to public policy since the authority is given to her not for herself but for her husband's benefit.'
It is true that in the aforesaid case of the Madras High Court the widow had agreed not to adopt at all while in the instant case bar is not absolute. But that, in our opinion, would not a material factor in the application of the principle deducible from these decisions to the instinct case. It is that an agreement in restraint of a widow's exercising her power to adopt is against public policy being repugnant to the Hindu Law. Whether the restraint is absolute or partial is of no consequence. The practical result is the same. There is also another aspect to it. If such agreements are countenanced and upheld by Courts it would in a large number of cases tempt if not encourage, the male members in the coparcenary to over-reach the widows of deceased coparceners. It is common knowledge that in this country percentage of education is very low specially amongst women. They generally are inexperienced in the ways of the world. When she loses protection of her husband on his death she is usually in a helpless condition. Till about recently, and we are dealing with such a case, a widow of a coparcener had only the right of residence and maintenance in the family property. She therefore for all practical purposes was dependent on the male members of the coparcenary if not at their mercy. A widow and the male members of a coparcenary thus very rarely stand on equal footing. She normally is not in a position to protect her interest adequately, while, on the other hand, male members have more experience of the world and being in possession of funds of the joint family are in a position to harass a widow of a coparcener. It cannot be disputed that the male members very rarely welcome the idea of having a new male member introduced in the coparcenary by adoption. These existing circumstances afford a strong temptation to them to take undue advantage of unequal situation in making a widow agree not to adopt without their consent. Taking the human nature as it is it can be safely assumed that in a very large number of cases the male members would succumb to these temptations, if agreements of this type are countenanced in a Court of Law. It is well known how different it usually is to prove that consent to an agreement was obtained by practicing fraud or by exercising undue influence. For a widow, who generally is in a helpless position, it is well high impossible to discharge this heavy onus. For reasons stated above, in our opinion, an agreement in restraint of exercise of power to adopt between a widow of a deceased coparcener and male member of the coparcenary is bad in law on grounds of public policy. In our judgment the agreement in question, viz., Ex. 1 D-21 being opposed to public policy is void and inoperative.
(37) Mr. Bobde also argued that to require a widow to obtain consent of the sapindas of her husband or the manager of the family cannot be said to be opposed to the principles of Hindu law. This agreement therefore cannot be struck down as bad in law on that ground. It is true that the law of adoption in force at the relevant time was not uniform throughout India; in certain other parts a widow could adopt without having an authority from her husband; in certain parts she could not adopt without his authority; and yet in certain other parts in the absence of an authority from her husband, she could adopt with the consent of her husband's kindreds. But that does not mean that requiring a widow to have a consent of sapindas, where it is not required, would not be against the principles of Hindu Law governing that territory, where such consent is not required. Further, our conclusion that agreement in suit is opposed to public policy is not founded on the sole ground that it is repugnant to the principles of Hindu law. As already stated there is also additional ground of its harmful tendencies. It is therefore not possible to accept this argument of Mr. Bobde.
(38) Assuming for a moment that agreement Ex. 1 D-21 is not opposed to public policy, it is next to be considered whether the adoption is invalid on account of it being in contravention of the terms of Ex. 1 D-21. In our opinion, even assuming that Ex. 1. D/-21, is not void but a binding contract between the first defendant and Kausalya the adoption of the plaintiff by Kausalya cannot be said to be void. It is not in dispute that Kausalya could adopt without the authority of her husband, consent of her husband's kindreds was not required for the validity of the adoption in law. She therefore had the capacity to adopt under the law without obtaining the consent of the first defendant. Exhibit 1, D-21 cannot have the effect of destroying this inherent capacity which Kausalya had under the Hindu law governing her. It is not in dispute that the mother of the plaintiff was fully qualified to give him in adoption. It is also not now in dispute that the age of the plaintiff or the state of his being married did not render him unfit for being adopted. This adoption therefore will have to be upheld in spite of the fact that it was without the consent of the first defendant. Mayne at page 200 has observed that an adoption in breach of an agreement by a widow not to adopt must be considered to be valid on the principle of factum valet.
(39-40) It is next contended by Mr. Bobde that Deorao had prohibited Kausalya from adopting a son. In support of his contention he has referred us to the Vyayastha Patra (Ex. 1 D-6) alleged to have been executed by Deorao on 29-6-1935. This argument of Mr. Bobde raises in fact two questions ; firstly, whether the alleged deed was in fact executed by Deorao and secondly if it is found that it was so executed by Deorao whether its contends amount to a prohibition either express or implied. We will first consider whether the deed is executed by Deorao. We have already stated that the plaintiff has dined the execution of this deed by Deorao and the learned Judge of the Trial Court has held that it has not been established that it was executed by Deorao. (After discussion of Evidence His Lordship concluded). We therefore see no reason to differ from the finding of the learned Judge of trial Court that the defendants have failed to prove that Exhibit 1 D-6 was executed by Deorao. In view of our finding, the second question, whether it contains a prohibition does not survive.
(41-42) It is next contended by Mr. Bobde that learned Judge should have accepted the evidence of 1-5 D. W. 6 (Baliram), Anusuya (D. W. 7), Rajaram (D. W. 8), Dharmaji (1-5 D. W. 9) & Baburao (1-5 D. W. 17) which is to the effect that 4 or 5 days before his death Deorao had directed Kausalya not to adopt a son to him without the consent of Baburao. Before referring to the evidence we would like to state that there is no plea raised by the defendants that 4 or 5 days prior to the date of death Deorao had instructed Kausalya not to adopt a son to him without the consent of Baburao though there is a plea raised in respect of such instructions having been given by Deorao a couple of days prior to his death. (After discussion of oral evidence His Lordship held that there was no prohibition).
(43) Mr. Bobde next argued that even if we hold that the plaintiff was validly adopted by Kausalya, the plaintiff's suit is liable to be dismissed because on the date of the suit the plaintiff was not left with any title to or interest in the joint family property; plaintiff had sold 1/2 of -/8/- share in 31 fields to Shantilal by a registered sale deed dated 29-7-1948 (Ex. 1. D-20); under the kararnama the plaintiff is not entitled to more than 1/3rd of -/8/- in all the ancestral property; the property sold under Exhibit 1. D-20 will easily exceed the share of the plaintiff. Mr. Bobde has also further referred as to another sale deed executed by the plaintiff and Kausalya on 27-9-1947 in favour of Gulabrao Deshmukh and Damodhar Laxmanrao Nathe (Ex. 1 D-19), under which they had sold 3-pies share in 49 fields. It is the contention of Mr. Bobde that the combined effect of these three documents, viz., kararnama, (Ex. A-1) dated 15-9-1947, Exhibits 1-D-19 and 1-D-20, is that on the date of the suit the plaintiff was not left with any title to or interest in the joint family property, plaintiff's suit should therefore be dismissed on this ground. It is not possible for us to accept this contention of Mr. Bobde. It is true that under the kararnama of 15-9-1947, the plaintiff had agreed that he was to be an owner only of 1/3rd share in the -/8/- share of Deorao and that Kausalya was to be an exclusive owner of the remaining 2/3rd of the -/8/- share of Deorao. This agreement is binding on him in the absence of any plea or proof by the plaintiff that agreement was unfair, unreasonable and not beneficial to him: Krishnamurthi Ayyar v. Krishnamurthi Ayyar : Raju v. Nagammal , ILR 52 Mad 128: AIR 1928 Mad 1289. The plaintiff was well aware of this argeement. He has not pleaded that this agreement is not binding on him. In these circumstances, in our opinion, the plaintiff is bound by this agreement and by virtue of his adoption cannot claim anything more than 1/3rd share of Deorao's -/8/- share in the ancestral property.
(44) Mr. Manohar however argued that though under the kararnama on his adoption the plaintiff had become an owner of 1/3rd share of the -/8/- share of Deorao only; he has become an owner of the entire -/8/- share of Deorao as he has succeeded to the remaining 2/3rd share of Kausalya on Kausalya's death. In the absence of a plea to that effect it is not possible for us to go into that question. As already stated, the plaintiff was well aware of the existence of the kararnama, he could, have in his plaint pleaded a case that he had become an owner of 1/3rd share of Deorao's -/8/- share in the property by virtue of adoption and had become an owner of the remaining 2/3rd by way of succession on the death of Kausalya as her heir. For reasons best known to the plaintiff he has not chosen to put forward such a case before the Court. Plaintiff cannot be allowed to raise such a case in arguments without laying a foundation therefor in his pleadings. For ought we know Kausalya may have during her lifetime alienated her interest in the property she got under the kararnama in favour of somebody else.
(45) As regards the sale deed, dated 29-7-1948, executed by the plaintiff in favour of Shantilal, the case of the plaintiff is that the sale was not a binding and valid sale. Shantilal was joined as a defendant to the suit and he had opposed the plaintiff's claim. The learned Judge of the trial Court has held that the sale was for a fictitious consideration and was a void one. Shantilal has not appealed. The learned counsel for the defendant-respondents have advanced no argument to show that the conclusions reached by the learned Judge were in any manner erroneous. We also see no reason to take a view different from that taken by the learned Judge of the trial Court. Thus the sale of 29-7-1948 being void it cannot be said that the plaintiff has parted with his interest in the ancestral property under that sale deed. As regards the other sale, viz sale of 27-9-1947, Ex. 1. D-19 plaintiff has not chosen to challenge that sale. It is a registered document and its execution by the plaintiff is not denied. It will have therefore to be taken that the plaintiff and Kausalya have parted with 3 pies share in 49 fields. The property alienated is very small. In these circumstances, in our opinion, suitable order to pass is to direct that in effecting partition of plaintiff's 1/3rd share in -/8/- share of Deorao equities on that basis be adjusted.
(46) Last question raised by Mr. Bobde is that the learned Judge of the trial Court should have held that 4 acres and 4 gunthas out of field No. 33/2, and fields Nos. 43 and 45 situate at Gonapur, fields Nos. 5/1 and 22/2 situate at Dapora and field No. 9 situate at nawkhed were the self-acquired property of Rambhau and therefore it is the self-acquired property of his sons Vishwasrao and Nilkanth (respondents 3 and 4) and was therefore not liable to be partitioned. This contention of Mr. Bobde, in our opinion, has some force. In respect of these fields the case of respondents 3 and 4 is that Rambhau had purchased this property with the funds supplied to him by his maternal uncle Atmaram Maroti (1-5 D. W. 12).
(47) The law apposite to the question which we have to decide is well-settled and is stated in Shrinivas Krishnarao Kango v. Narayan Deviji kango : 1SCR1 thus:
'It is well-settled that proof of the existence of a Hindu joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.'
On the facts of this case the joint family had considerable property. Prior to the date the aforesaid fields were purchased, the property consisted of 800 acres of land. It would be sage to infer that it was possible for the family to purchase the aforesaid fields from the income of the aforesaid 800 acres. The burden of proof undoubtedly is on respondents 3 and 4 to establish their case affirmatively that Rambhau purchased those fields out of the funds supplied to him by his material uncle. (After discussion of evidence His Lordships proceeded:) In our opinion therefore respondents 3 and 4 have been able to establish that the property purchased under Exhibits 3-D-1, 3-D2, and 3-D-3, i.e. fields Nos. 5/1 and 22/2 situate at Dapora and 4 acres and 4 gunthas out of field NO. 33/2 situate at Gonapur were acquired by Rambhau with the funds supplied to him by his maternal uncle. As regards the rest of the fields, in our opinion, there is no satisfactory evidence on record to hold that respondents 3 and 4 have discharged the burden of proof that rested on them
(48) To summarize our findings, we hold that the plaintiff is validly adopted by Kausalya as a son to her deceased husband Deorao, by virtue of the adoption, the plaintiff was entitled to get only 1/3rd share in the -/8/- share of Deorao in the joint family property inasmuch as he has already given up his right in respect of the remaining 2/3rd share under the kararnama dated 15-9-1947, after adoption the plaintiff and Kausalya had alienated 3-pies share in 49 fields mentioned in the sale deed Exhibit 1-D-19, dated 27-9-1947. We therefore direct that in partitioning the aforesaid share of the plaintiff equitable adjustment should be made on this footing. The property now available for partition is only the agricultural fields mentioned in Schedule 1 except 4 acres and 4 gunthas out of field No. 33/2 of Gonapur and fields Nos. 5./1 and 22/2 of Dapora and also field No. 12/1 of Dapora and 38/3 of Gonapur as held by the learned Judge of the trial Court as not belonging to the joint family and not challenged before us and the movable property admitted by defendants 1 and 2 in their written statement;
(49) In the result the appeal is partially allowed. The judgment and decree of the trial Court are set aside and it is directed that a decree in accordance with the observation made hereinbefore be drawn up. In view of partial success of plaintiff in the case we direct that costs be borne by the parties as incurred throughout.
(50) Appeal partially allowed.