Narasimham, C. J.
1. This is an appeal by the plaintiffs against the judgment of the Subordinate Judge of Berhampur partially decreeing their claim. There is alsoa cross-objection by some of the contesting defendants against that portion of the decree whichwent against them.
2. The following geneological tree will behelpful in appreciating the points involved in thislitigation:
Raghunath Sabat Radhakrushna Sabat
(Plaintiff) No. 4 and P.W.8
| | |
Shyamsundar Arjun Kishorechandra
(Defendant (Plaintiff (Plaintiff
No. 1) No. 2) No.3)
=Sakuntha Devi |
| | |
Ananta Ramo Achuta Ramo Abhiram
(said to be taken in
adopation by Shyam-
sunder) Plaintiff No.1.
2. Patito Sabata was a very well-to-do person with extensive landed properties in Sasan Ambagaon and other villages in Hingilikati Police Station of Ganjam district. His eldest grandson Shymasundar unfortunaetly proved to be a profligate and waster. He was wayward, addicted to liquor and women and used to visit prostitutes since 1942. Even his marriage with defendant No. 2 did not bring about any improvement in his way of life. On the other hand, he began to take away his wife's ornaments and to utilise them for his dissipation. Being in need of money for his debaucherous life he began to freely alienate his interest in the joint family properties. Thus in 1945 he mortgaged his interest with one Madan Mohan Padhi (Exhibit 1) for Rs. 6400/-. He would not listen to the remonstrance of his father Raghunath (P. W. 9} or his grand-father Patito (who was then alive) and thereupon these two persons with a view to prevent further alienation of the property persuaded him to relinquish his entire interest in the joint family properties (Exhibit 2) on 10-10-1945 in favour of Patito after receiving some cash. Patito then redeemed the mortgage on 10-3-1946. During his life-time in 1949 he effected partition between the two sons, namely Raghunath and Radhakru-shna giving away ten annas share to Ragbunath and six annas share to Radhakrushna. Thus though Shyamsundar by his own act of relinquishment lost all the interest in the ancestral property his father Raghunath (P. W. 9) had affection for him and did not want him to become absolutely penniless specially as he had a wife alive. Hence in 1953 while executing a partition deedbetween himself and his other two sons Arjun (Plaintiff No, 2) and Kishore Chandra (plaintiff No. 3) (Exhibit 3) he 'set apart some lands anda house for the maintenance of Shyamsundar, his wife and sons to be born, but made a clear stipulation to the effect that Shyamsuudar had no sight to alienate the properties thus set apart either by gift or sale and these, after his death, woulddevolve on his sons, who would have absolute interest in the same.
3. The anticipations of Raghunath regarding the way-ward conduct of his eldest son Shyamsundar proved to be too true. Within one and half years after the settlement of properties with him by partition deed (Exhibit 3) Shyamsundar began to make series of alienations in April 1955 (Exhibits A, A-1, A-2, A-3, A-5, A-6, A-7 and A-8) in favour of several persons. One of the alienees was none else but his own wife, defendant No. 2, and the other alienee was his own sister (Defendant No. 13). Apparently finding no method of stopping his reckless condrict these two near relations wanted to salvage some of the properties by taking them in their own names though most of the alienees were strangers to the family.
4. As to be expected Shyamsundar had no issue of his own though he had led married life for more than ten years with his wife. There was only one child born who died in infancy. Hence with a view to protect him against himself his father Raghunath persuaded him to take in adoption Abhiram, who is one of the sons of Raghunath's second son, Arjun. The adoption was said to have actually taken place on 28-4-1955and 'Shyamsundar also executed a deed of adoption and settlement (Exhibits 4 and 5) on 27-6-1955 recognising the adoption.
5. This litigation has been fought mainly on behalf of the adopted son (plaintiff No. 1), who is a minor, by his natural father Arjun (plaintiff No. 2} and his paternal grandfather Raghunath (plaintiff No. 3) challenging the alienation made by Shyamsundar as being invalid and inoperative and for recovery of possession of the properties unlawfully alienated and also for other consequential reliefs. Shyamsundar (Defendant No. 1) and his wife (defendant No. 2) were ex parte in the lower Court and also in this Court. The main contest is by the alienees.
6. There were two main questions for decision in this litigation:
(1) Was the plaintiff No. 1 Abhiram validly adopted by Shyamsundar. ?
(2) Were the impugned alienations invalid and inoperative due to want of capacity on the part of the alienor, Shyamsundar?
7. Adoption of Abhiram.
The finding of the lower Court is in favour of the adoption. But it has been challenged by the contesting defendants in their cross-objection. It was urged that in 1955 Shyamsundar was a comparatively young man of about 30 years with a young wife who had not lost all hopes of begetting children and that it was highly improbable that he would adopt a son at that age. It was farther urged that there was a violent contradiction between the evidence of Arjun (P. W. 17) about the date of adoption and Shyamsundar's own statement in Exhibits 4 and 5. The absence of any independent evidence to prove the adoption and the omission on the part of the plaintiffs even to examine the priest, who was said to lave performed the ceremony, were urged on behalf of the defendants.
8. To prove the adoption the plaintiffs have relied on the oral testimony of Raghunath, P. W. 9, his son Arjun, P. W. 11 and that of Radhakrishna P. W. 8 and also on the conduct of Shyamsundar in acknowledging the adoption in his two documents (Exhibits 4 and 5) and also his describing himself as a guardian of his minor son Abhiram in the two sale deeds (Exhibits A-1 and A-1/1) executed in favour of defts. 19 and 20 on 8-1-58.
9. As Shyamsundar was ex parte the challenge of adoption has been put forward in a somewhat half-hearted manner by the contesting defendants in paragraph 9 of their written statement wherein the adoption was challenged on the ground that it was brought about by the influence of Arjun and Raghunath and that subsequently Shyamsundar cancelled it by a registered document; that it was invalid and inoperative in Jaw and that even if it be assumed that Abhiram was adopted by Shyamsundar 'alienations made by Shymasundar prior to the adoption could not be challenged. The judgment of the Lower Court shows that the factum of adoption was not seriously challenged and the only argument of the Counsel for the defdts was that the deed of adoption by Shymasundar (Ext. 4} was brought about by undue influence and that in any case as he cancelled the deed of adoption later it has no force. These facts and circumstances should be borne in mind in considering the objections raised by Mr. Rath on behalf of the defendants based on certain discrepancies in the evidence of the witnesses as regards the date of adoption. (After discussion of evidence His Lordship proceeded :) I would therefore, in agreement with the Lower Court, accept the evidence of P. Ws. 8 and 11 and hold that the plaintiff was validly adopted by Shyamsundar.
10. (After discussing some more evidence His Lordship proceeded:). The finding of the lower Court on this point must therefore be confirmed and the cross-objection dismissed.
(2) Were the impugned alienations invalid and inoperative due to want of capacity on the part of the alienor (Shyamsundar) This is the most important point for decision in this appeal and it depends on a proper construction of the deed of partition (Exhibit 3). It was executed by Raghunath and his other two sons on 6-12-53 Shymasundar was excluded because by his own deed of relinquishment (Exhibit 2), he had lost all interests in the joint family properties. But his fond father could not possibly throw him and his wife into the streets. In para 2 of the document there is a clear recital to the effect that Shyamsundar squandered away his property (apabyaakari), got into debts and that subsequently he relinquished his interests in the property when his grand-father Patito under took to pay up the debts and redeem the mortgages executed by him.
Then after dividing the properties into four parts Raghunath kept one part to himself. Similarly, he gave to his two younger sons, Arjun and Kishore Kha and Ga schedule properties respectively. They were given absolute rights in respect of their shares. But while giving Gha sch. properties to Shyamsundar the executant took care to say that it was not his share but that it was being given for the purpose of keeping peace and prestige of the family and for maintenance of Shyamsundar's family.
The relevant Oriya recitals in documents may be translated , as follows:
'Raghunath Sabat's eldest son Shri Shyam-sundar Sabat will take (Nabay) Gha schedule properties but he cannot transfer this property and cannot even give it on lease for more than one year. He will enjoy the Gha schedule properties till his death without any right of transfer by gift, sale etc. But after his death his sons will be entitled to enjoy the said properties with the right of transfer by gift and sale etc.'
11. The question now arises as to what was the true nature of interest acquired by Shyamsundar in the properties by this document. Was it life estate in the English Law sense of the expression with an absolute restraint on alienations which will be void under Section 10 of the Transfer of Property Act or was it a mere interest in property restricted in its enjoyment to the owner personally as described in Clause (d) of Section 6 of that Act. If it is held to be a life estate then Shyamsundar will undoubtedly have the right to make alienation valid during his life. In support of this view reliance was placed on the observations of the Supreme Court in Lakshmana Nadar v. Rule Ramier, AIR 1953 SC 304 where on a construction of a will executed by a Hindu it was held that the property was given to his widow as life estate in the English law sense with absolute interest to his daughter after the widow's death. On the other hand, Counsel for the plaintiffs relied on the decision of the Privy Council in Lachhmeshwar Sahai v. Mt. Moti Rani Kunwar, AIR 1939 PC 157 where on a construction of the partition deed it was held that the interest in the property given to the widow was mot a life estate but only a limited interest described in Clause (d) of Section 6 of the Transfer of Property Act. Counsel for the plaintiffs have also relied on Muhammad Shabbar v. Harnath Kuar, AIR 1927 Oudh 436, Basangowda v. Irgowadati Kallangowda, AIR 1923 Bom 276 and Lal Mohan v. Onkar Mall, AIR 1946 Pat 55 whereas counsel for the contesting defendants has relied on Dhup Nath v. Ram Charitra, AIR 1932 All 662 and Krishnayya v. Raghavulu, AIR 1958 Andh Pra 658.
12. Though in some instance it may be difficult to say whether the interest in property created in favour of a person is of the nature described in Section 6(d) of the Transfer of Property Act or else whether it will come within the scope of Section 10 of that Act, nevertheless the question ultimately depends on a proper construction of the terms of the grant made in his favour in the light of all the circumstances and giving a meaning applicable to the subject-matter. Their Lordships of the Supreme Court themselves ia the aforesaid case pointed out that
'The Court's primary duty in such cases is to ascertain from the language employed by the Testator what were his intentions keeping in view the surrounding circumstances his ordinary notions as a Hindu in respect of the devolution of his property his families etc.'
13. Here there is no doubt that by the document (Ex. 3) Raghunath and his two younger sons were, in effect, giving away some properties for the maintenance of Shyamsundar and his family during his life time with absolute interest in favour of his spns after Shyamsundar's death. Express prohibition of the right of alienation was inserted in the document and it was also further stated that such an arrangement was being made for the purpose of maintenance of Shyamsundar's family. The word Shyamsundar 'Kutumbal' has a special significance in view of his reckless conduct in the past of which his father and brothers were fully aware, and which has also been briefly described in paragraph 2 of the document itself. When he had complete freedom to manage his interest he incurred debts, created encumbrances and wasted his interest. His father's (P. W. 9's) evidence to the effect that he was leading a debau-cherous and wayward life is acceptable. The donors, were therefore anxious to provide for the maintenance of Shyamsundar and his family during his life-time as he has a young wife alive with prospects of begetting children. The prohibition of any alienation by him was made in the document with this object in view. The donors could not have thought of giving him a life estate in the English law sense knowing fully well that if such a right is given to him he would immediately plunge into a reckless career alienating that life interest also, thereby throwing his wife and children (natural) or (adopted) into the streets. His subsequent conduct in making so many alienations also shows that this apprehension was fully justified. Hence on a fair construction of the document and after giving due weight. to the recitals contained therein the reasonable construction appears to be that the only interest in the property given to him was the interest described in Clause (d) of Section 6 of the Transfer of Property Act. restricted in its enjoyment to him personally. It was not transfer of life estate. One important feature which distinguishes this case from AIR 1953 SC 304, AIR 1932 All 662 and AIR 1958 Andh Pra 658 is the antecedents of the grantee and the awareness of the grantors of that fact. In none of those cases was there any recital in the document to show that the grantee by his or her past conduct had shown herself unfit to be given life interest over the property.
14. I would, therefore, hold that the alienations made by Shyamsundar would be void as he had no right to transfer the properties obtained by virtue of Exhibit 3. The alienations cannot be held to be valid even during his life time.
15. At a belated stage perhaps presumably apprehending that the adoption of plaintiff No. 1 by Shyamsundar may not be believed Shyam-sundar's wife (defendant No. 2) filed a petition for being transposed as an appellant in this appeal so that her rights in the properties may be safeguarded. Her petition was objected to by the contesting defendants who said that as she was one of the alienees and the alienations were under challenge her interest is adyerse to that of plaintiff No. 1. In view, however, of my clear finding that the adoption of plaintiff No. 1. is established -- I see no reason to allow defendant No. 2 (Respondent No. 2) to be transposed as an appellant to fight out the appeal. Her prayer is therefore, rejected.
16. For these reasons the appeal is allowed and that portion of the decree of the lower Courts which declares that the impugned alienations would be valid during the life time of Shyamsundar is set aside. All the alienations are declared void and inoperative and plaintiff No. 1 is entitled to recover possession of the same from the alienees. In other respects, the Trial Court's judgment and decree are confirmed and the cross objection is dismissed.
Respondents Nos. 3 to 24 shall pay full costs to the appellants of this appeal.
17. I agree.