P. Subbaraju vs I. Narayanaraju and Others

Madhavan Nair, J.—This second appeal arises in a suit instituted by the plaintiff-appellant to set aside the razinamah decree in Original Suit

No. 52 of 1911 on the file of the Additional District Munsiff''s Court of Tanuku. The facts of the case are not seriously disputed. The father of

defendants Nos. 1 and 2, Thammiraju, Gangaraju the third defendant, and Venkatraju, father of defendants Nos. 7 and 8 were brothers. Their

father Subbaraju took Appalaraju, his nephew, into his family for helping him in cultivation and gave him his daughter in marriage. The plaintiff-

appellant is the son of Appalaraju. He (appellant) lived and worked in the family as one of its members, disposed of his own properties and

increased the family properties with the proceeds thereof. Later on, the three brothers and Appalaraju effected a partition of all the family

properties into four equal scares, but continued joint cultivation till about-twelve years ago. In 1911, defendants Nos. 1 and 2 instituted a suit

against Subbaraju, the present plaintiff, for the recovery of 9 acres of land viz., one-third share of the properties allotted to Appalaraju on the

ground that Appalaraju had no right to get a share at the partition. All the other members of the family were parties to the suit. When the suit came

on for hearing, it was compromised between the plaintiffs, i.e., the present defendants Nos. 1 and 2 and the first defendant therein, Subbaraju, who

is the present plaintiff and a razinamah decree was passed. The material portion of the decree runs as follows: ""... The total extent of 27 acres 79

cents of the land and the house relating to the share of the first defendant''s father mentioned in the plaint schedule which devolved on the first

defendant, should be enjoyed by the first defendant as rightful owner, that the first defendant should adopt Thammiraju, who was the second son of

the plaintiff, within two months, that the first defendant and the said adopted son should remain as joint members of the family and enjoy the entire

property mentioned in the plaint schedule, that is, 27 acres 791/2 cents and the house according to Hindu Law; that, if for any reason the first

defendant should fail to make an adoption in the said manner, the first defendant should enjoy as rightful owner only one-half out of the entire

property mentioned in the plaint schedule, that is, 27 acres 79 cents and the house, according to good and bad qualities, that the first defendant

should deliver possession of the remaining half of the property to the plaintiffs for being enjoyed by them as rightful owners, that if the possession is

not delivered so, the plaintiffs should obtain possession through Court warrant (execution) after getting it partitioned, that the plaintiffs should give

up other reliefs asked for by them, that each party should bear his respective costs and the plaintiffs should give up the other defendants in this

suit."" The proposed adoption of Thammiraju not having taken place, the defendants would be entitled to get about 14 acres of land according to

the razinamuh decree.

The plaintiff who, as already mentioned, was the first defendant in Original Suit No. 52 of 1911, now seeks to set aside the razinamah decree on

the ground that it is illegal and invalid as its provisions are against law and opposed to public policy and as it contains also a penal clause. Issue No.

6 which related to this ground of attack against the decree was not considered by the lower Appellate Court for reasons which it is unnecessary

now to discuss, as the respondents'' learned Vakil has very fairly stated that the appellant is by right entitled to urge this ground. As the question

now raised m one relating to the interpretation of the razinamah decree, it is agreed by both the parties that it may be disposed of here in second

appeal.

The compromise decree quoted above contains two terms (1) ""that the first defendant should adopt Thammiraju who was the second son of the

first plaintiff within two months.... (2) that, if for any reason the first defendant should fail to make an adoption, the first defendant should enjoy as

rightful owner only one-half of the entire property.... and that the first defendant should deliver possession of the remaining half to the plaintiffs...."" It

was urged on behalf of the appellant that the first term of the compromise decree is opposed to public policy and is unenforceable as it holds out

an inducement to the first defendant in that suit, viz., the present plaintiff, to make an adoption and that it is opposed to Hindu Law, that if the first

term is thus unenforceable, the second term depending on the first is also unenforceable, that the second term embodied a penal clause and that

generally, the razinamah in its entirety is bad as its object obviously is to compel the first defendant in that suit to make an adoption. In support of

his argument that the first term of the razinamah decree is unenforceable. Mr. Krishnaswamy Iyer, the learned Vakil for the appellant cited two

classes of cases; class (1) showing (a) that a contract to give a son in adoption in consideration of an annual allowance to parents is void. See

Eshan Kishore Acharjee Chowdhury v. Haris Chandra Chowdhury 13 B.L.R. App. 42 (b) that a promise to pay, or payment of money for the

purpose of inducing a man to part with his son to another for adoption cannot but be reprobated see Murugappa Chetti v. Nagappa Chetti (1906)

29 Mad. 161 and class (2) showing (a) that a contract to make a payment to a father in consideration of giving his daughter in marriage is immoral

and opposed to public policy see Kalavagunta Venkata Krishnayya v. Kalavagunta Lakshmi Narayana (1909) 32 Mad. 185 and (b) that an

arrangement between A and B that B''s daughter shall marry A''s son and that, if she fails to do so, B shall pay a sum of money to A is opposed to

public policy and void see Devarayan Chetti v. Muthuraman Chetti (1913) 37 Mad. 303. In applying the latter class of decisions, it must be

remembered that one of the reasons suggested for not enforcing agreements to reward parents for giving their children in marriage is, that such

agreements tend to a conflict of interest with duty, (see Pollock and Mulla''s Indian Contract Act, p. 145). Generally stated, it may be said that this

principle explains the decisions in all the eases above quoted. Tin question for consideration, therefore, is whether the agreement embodied in the

first term of the razinamah decree should, be considered to be bad on account of a conflict between the interests and the duties of the x''arties to it.

In my opinion, the agreement to adopt contained in the first term is above reproach if we realise the full significance of all the circumstances relating

to it. It will be remembered that the father of the plaintiff lived as a member of an undivided Hindu family, married a lady of that family in the

circumstances already mentioned and got for his share one-fourth of the properties which are in the enjoyment of the plaintiff. As mentioned in. the

plaint, a sister of defendants Nos. 7 and 8 was given in marriage to the plaintiff himself. If the plaintiff was persuaded to adopt the first defendant''s

son, it was thought by the patties that the vexed question of the plaintiff''s father''s right to the property, would not be agitated, and that the

property would also devolve on the first defendant''s son and would not go to a stranger. Instead of showing any conflict of interest and duty, this

agreement to adopt contained in the first terra of the compromise-decree shows, in my opinion, that the parties to it intended once for all to bring

about a reasonable and equitable family settlement without in any way jeopardising the interest of the family and also without injuring the interest

which the plaintiff bad acquired in the famrily properties''. I do not, therefore, think that the first term of the razinamah decree should be considered

to be bad as opposed to public policy; if so, the second term depending on the first should not also be considered objectionable.

It was then argued that the razinamah decree is bad as it embodied a penal clause, namely, that in default of adoption the first defendant is to

deliver possession of about 14 acres of land to the plaintiffs (i.e., present defendants Nos. 1 and 2) which means that they would get an excess of

5 acres over what they would be entitled to get if they succeeded in the suit. In view of the fact that the plaintiff in case of success would be entitled

to get mesne profits, coats, etc, from the defendants which would probably amount to the value of 5 acres as pointed out by the District; Munsiff, I

do not think that the opinion of the lower Courts that this does not amount to a penalty is wrong. Mr. Krishnaswamy Iyer then argued that at least

to the extent of 5 acres the razinamah decree should now be set aside; but this special plea as regards the 5 acres was never put forward as an

argument for getting a partial relief in the Courts below; I. am not inclined to give any effect to it in this Court.

The last argument that was advanced on behalf of the appellant was that the whole razinamah decree should be set aside as the intention of the

parties to it was to compel the present plaintiff to make an adoption. This argument Cannot be accepted. Taking the document as a whole, in the

light of the circumstances already referred to in detail, in my opinion, the document embodies a very fair and equitable transaction.

I, therefore, dismiss the second appeal with costs.