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Kallyantai Father Appaswami Dharmar Vs. Shivappa BIn Nagappa Hargapur and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1924Bom516; 76Ind.Cas.405
AppellantKallyantai Father Appaswami Dharmar
RespondentShivappa BIn Nagappa Hargapur and ors.
Excerpt:
construction of document - gift to adopted son--adoption invalid--gift, whether fails--intention. - - the learned judge was at first of the contrary opinion, but after wards he seems to have departed from the strict construction of the terms of the document in order to give effect to what was stated by maralswami in his written statement in the suit filed against him in 1905. we doubt whether that is a satisfactory method to adopt in order to construe the document passed in 1897. at that time the situation was perfectly clear, as stated in the document. and since the adoption was clearly invalid, the object of the gift has failed, because ramaswami could not fill the position which was intended for him by maralswami......to the gadi. therefore, maralswami set about to get rid of that obstruction. accordingly, he adopted ramaswami and then purported to make ramaswami as such adopted son the full owner of all the properties pertaining to the math. he said 'with a view to perpetuate my line and to have an heir to look to the performance of the religious duties, and also for the management of the property, i take you in adoption according to our religion and you have been given in adoption by your natural mother of her free will. so i take you in adoption according to danpratigrah on margashirsh sud 2nd, shake, 1819. you are clothed with all the rights that my natural born son might have got. you should continue our line and lead a prosperous life. you asked me to pass a maljkpatra in you favour, and.....
Judgment:

1. The decision in the appeal before us depends on the constriction of the document, Exhibit, 65. The District Judge has found that the gift contained in the document was not made to Ramaswami, as to an adopted son, but it was, on the contrary, made to him, because he could not be adopted. The learned Judge was at first of the contrary opinion, but after wards he seems to have departed from the strict construction of the terms of the document in order to give effect to what was stated by Maralswami in his written statement in the suit filed against him in 1905. We doubt whether that is a satisfactory method to adopt in order to construe the document passed in 1897. At that time the situation was perfectly clear, as stated in the document. Maralswami had no issue by his wedded wife. He had an illegitimate son Ramaswami. It had been decided in a previous suit by the High Court that Ramaswami was Dasiputra, and, therefore, was not entitled to the Gadi. Therefore, Maralswami set about to get rid of that obstruction. Accordingly, he adopted Ramaswami and then purported to make Ramaswami as such adopted son the full owner of all the properties pertaining to the Math. He said 'With a view to perpetuate my line and to have an heir to look to the performance of the religious duties, and also for the management of the property, I take you in adoption according to our religion and you have been given in adoption by your natural mother of her free will. So I take you in adoption according to Danpratigrah on Margashirsh Sud 2nd, Shake, 1819. You are clothed with all the rights that my natural born son might have got. You should continue our line and lead a prosperous life. You asked me to pass a Maljkpatra in you favour, and so I have passed it. The property is given to the full ownership of Ramaswami.'

2. It seems to us that it is impossible to distinguish the terms of this document from the terms of the document which was construed in Fanindra Deb Raikat v. Rajeswar Das 12 I.A. 72 : 11 C. 463 : 4 Sar. P.C.J. 610 : 9 Ind. Jur. 277 : 5 Ind. Dec. 1068. At page 89 their Lordships say, We feel no difficulty about Rajeswar being sufficiently designated as the object of the gift, although the adoption may not be valid. We think, the question is, whether, the mention of him as an adopted son is merely descriptive of the person to take under the gift or whether the assumed fact of his adoption is not the reason and native of the gift, and indeed a condition of it.' At page 90, their Lordships conclude:--'In the present case, we are of opinion, that it was Jogendra's intention to give his property to Rajeswar as his adopted sen, capable of inheriting by virtue of the adoption, and the rule that it is not essential to the validity of a devise or bequest that all the particulars of the subject or object of the gift should be accurate is not applicable. As the adoption was contrary to the customs of the family, and gave no right to inherit, the Angikar patra had not any effect upon the property.'

3. We have been referred to the decision in Subbamyer v. Subbammal 27 I.A. 162 : 2 Bom L.R. 982 : 4 C.W.N 805 : 24 M. 214 : 7 P.C.J 82 In that case, the document was entirely different, and their Lordships, in referring to the case we have just cited said: 'The language of one instrument does not afford much assistance in the construction of another.'

4. It seems to us clear in the case that it was Maralswami's intention that the property should come to Ramaswami as his adopted sen, capable of inheriting in the same way as a natural born son and capable of perpetuating his line, and looking to the performance of the religious duties. And since the adoption was clearly invalid, the object of the gift has failed, because Ramaswami could not fill the position which was intended for him by Maralswami. Therefore, the document had no effect upon the property. We think, therefore, the first impression of the District Judge was right.

5. The appeal, therefore, must be allowed, and the decree of the Subordinate Judge should be restored with costs in proportion throughout.


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