Penumasta Subbaraju vs Indukuri Narayanaraju and Others

Devadoss, J.—The appellant''s father Appalaraju was taken into the family of his father-in-law and he lived with him as a member of the

family. Appalaraju and his three brothers-in-law effected a division of the family properties and Appalaraju was given one-fourth share in them. In

1911 defendants x and 2 herein instituted a suit against the appellant for the recovery of 9 acres of land on the ground that the granting of a share

of the joint family property by their father was not binding upon them as Appalaraju was not a member of the joint family. To that suit the other

members of the family were parties. The suit was compromised and a razinama decree was passed on 22nd January, 1912. According to the

terms of the razinama, the plaintiff should adopt Thimmaraju, the second son of the plaintiff (1st plaintiff in the previous suit) within two months from

the date of the razi and if he did so he should enjoy the entire property which fell to his Father Appalaraju''s share and if he should fail to take the

boy in adoption he should retain only one-half of the 27 and odd acres and the other half should go to the plaintiffs. The appellant failed to take the

boy in adoption and he now sues for the recovery of half of the 27 and odd acres on the ground that the razinama is not binding on him as it was

brought about by fraud. The question of fraud is found against and the only point that is now urged for setting aside the razinama is that it is

opposed to public policy and therefore the appellant is entitled to get back the 14 acres of which he was dispossessed in execution of the razinama

decree. Madhavan Nair, J., held that the ment whereby third persons who are not parties to the transaction try to acquire monetary benefit by

promoting it.

Appeal under clause 15 of the Letters Patent presented against the judgment of the Hon''ble Mr. Justice Madhavan Nair in S.A. No. 1387 of

1921 preferred to the High Court against the decree of the Court of the Additional Subordinate Judge of Ellore in A.S. No. 21 of 1921 (A.S. No.

351 of 1920 on the file of the Court of the Subordinate Judge of Ellore) preferred against the decree of the Court of the Principal District Munsif of

Tanuku in O.S. No. 189 of 1912. razinama was a bona fide family settlement and it could not be impeached by the appellant.

The main contention urged on behalf of the appellant is that the term as regards taking the boy in adoption is opposed to public policy as no one

can be compelled to make an adoption and any consideration paid for taking a boy in adoption is illegal and opposed to the Hindu Law. The

admitted facts are, the appellant''s father Appalaraju was the son-in-law of Subbaraju. He belonged to a different family and on his marrying the

daughter of Subbaraju he was asked to live in the family and look alter the cultivation. It is immaterial to consider now whether Appalaraju brought

the properties of his own family and made them part of his joint family property. After the death of Subbaraju the three sons effected a division of

the family property and gave Appalaraju a fourth share. The grandsons by one of the three sons of Subbaraju attacked the arrangement on the

ground that their father had no right to give away a portion of the family property to a stranger of the family, and the other members of the family

supported the contention of the plaintiffs. In order to bring about peace in the family and in order to prevent further litigation and loss, arbitrators

settled the disputes between the parties in a way which was considered satisfactory to all of them.

If the suit went against the present plaintiff (the Ist defendant in the suit of 1911) he would have lost not only the 9 acres claimed by the plaintiffs

in their suit but the 18 and odd acres which represented the share of the two brothers-in-law of Appalaraju. The appellant was allowed to retain all

the properties that were given to his father by his maternal uncles on condition that he should adopt the second son of the Ist plaintiff within two

months and if he did so all the property which fell to the share of Appalaraju should be enjoyed as joint family property of the plaintiff and his

adopted son and that if he failed to do so half of the property in his possession should be delivered to the plaintiffs. When an arrangement of this

kind is brought about in the interests of the members of a family, it would require very strong grounds to set it aside at the instance of any one of

the parties to the arrangement.

The appellant was childless at the time. His wife is a daughter of one of the sons of Subbaraju. As he was childless he would have naturally liked

to adopt some boy and defendants 2 to 7 wished that the appellant should adopt one of the sons of the family so that the appellant might remain in

the family and that his line should be perpetuated without in any way disturbing the peace of the family. Can it be said in those circumstances that

the arrangement was illegal and one that was opposed to public policy? It is argued by Mr. T.M. Knshnaswami Aiyar for the appellant that an

adoption should be a voluntary act, that no person should be forced or coerced into making an adoption, and that no inducement should be held

out for making an adoption. The adoption of a boy is a religious act and is one which is necessary for the salvation of the soul. If a person is

induced to do what is necessary for his salvation and the salvation of his ancestors, could his act be considered illegal? If a person is asked to

adopt a boy by the promise of sufficient means to maintain himself and the boy, 1 do not think that the adoption induced by such promise would be

invalid, or would militate against the rules of Hindu Law governing adoptions. If an inducement is made to a man to adopt a boy whom he could

not adopt or whose adoption would be of no avail to him the matter would be different. But where the boy suggested is a proper person to be

adopted, any proper inducement to him would not invalidate the adoption. It is well settled that if a person promises to settle some property or give

a sum of money on condition or in case that the other person marries the promisor''s daughter or any girl in whom he is interested not only would

the marriage be valid but the promisee would be entitled to enforce against the promisor the promise whereby he was induced to marry the girl.

This principle is stated by Lord Chancellor Lyndhurst in Hammersley y. De Biel (1845) 12 Cl & Fin 45 : ""The principle of law, at least of equity, is

this that if a party holds out an inducement to another to celebrate a marriage and holds them out deliberately and plainly, and the other party

consents, and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit

of the proposal which was so held out, a Court of Equity will take care that he is not disappointed, and will give effect to the proposal. "" The

promise to settle some property or to give a certain sum of money on the promisee marrying a particular individual is enforceable in law both in

England and in India. It is difficult to see why an adoption which takes place by reason of a promise to pay a certain sum of money or settle some

property on the adopter is opposed to public policy. As observed by Chandavarkar, J., in Shri Sitaram Pandit v. Shri Harihar Pandit ILR (1910)

B 169 , ""A boy is adopted by a sonless Hindu for perpetuating his line; paying off his dues to his ancestors, keeping up his name, and securing for

him and his ancestors a place in heaven. These are sacred purposes according to the Hindu Shastras. "" That being the object of an adoption, an

inducement to a man to adopt a proper boy is not an improper or an illegal act, and an adoption taking place under an inducement is not invalid.

What is urged before us is that it restrains the plaintiff-appellant from adopting whomsoever he liked and such a restraint is improper. There was

no restraint on the appellant''s adopting anybody before the razinama was entered into. It was only for the sake of the peace of the family and for

the benefit of the appellant that he was asked to take the second son of the 1st plaintiff in adoption. It was open to him to have refused to consent

to such a condition in which case the plaintiffs in that suit might have succeeded in getting a decree in their favour. It cannot therefore be said that

the appellant''s discretion was fettered by any arrangement as that evidenced in the razinama.

Great reliance is placed upon Eshan Kishar Acharjee Chowdhry v. Haris Chandra Chowdhry (1874) 13 B L R App 42 for the position that no

consideration should be given for caking a boy in adoption and that taking a boy in adoption for a consideration paid to the father would make the

adoption invalid. In that case it was held that "" An adoption of a son after payment of price is not recognised in the present, the Kali, Yuga. The

only adoption now recognised is that of the dattaka son, or son given. A contract to give a son in adoption, in consideration of an annual allowance

to the natural parents is void u/s 23 of Act IX of 1872, inasmuch as the contract, if carried out, would involve an injury to the person and property

of the adopted son, and would defeat the provisions of the Hindu Law. "" The plaintiffs therein wanted to enforce a contract which was entered into

at the time when the boy was given in adoption. The adoption itself was not declared invalid but it was held that the plaintiffs could not sue on the

contract. An adoption cannot be declared invalid by reason of any collateral arrangement of contract entered into between the adoptor and the

adoptee''s natural father, for it would do incalculable harm to the adopted boy if the adoption is to be declared invalid by reason of any

arrangement between persons over whom he had no control. By adoption the adopted boy loses his rights in the natural family and if the adoption

is declared invalid he could not acquire any rights in the adoptive family, and it would not be proper to visit on the adopted boy the sins of the

natural father and the adoptive father, for the adoptee in the dattaka form is a minor and is not in a position to have a say in the matter of the

arrangement between them. It is upon this principle that a boy who is taken in adoption under an agreement which is unenforceable in law is held

good and the arrangement is considered to be collateral. If the adoption is otherwise good, that is to say, if the adoptor could make a valid

adoption, if the adopted boy was a proper person and if the ceremony of adoption was properly performed, it is opposed to natural justice that the

adoption should be set aside for anything which preceded the adoption. In Mumgappa Chetty v. Nagappa Chetty ILR (1905) M 161 it was held

that the receipt of money by the natural father in consideration of giving his son and the payment of such by the adoptive father though illegal and

opposed to public policy, do not make the adoption invalid, as the gift and acceptance of the boy is a distinct transaction clearly separable from the

illegal agreement and payment. Such payment has not the effect of converting the adoption into an ""affiliation by sale, a form now obsolete."" Mr.

Justice Subramania Aiyar, who delivered the judgment in that case, referred to the practice which prevailed among a certain class of people of

taking money consideration for giving a boy in adoption. In every case of adoption the natural father expects some benefit for himself or for his son

and nobody would think of giving a boy in adoption to a pauper. Mercenary consideration enters into most transactions like adoption and

marriage, and the adoption or marriage is not rendered invalid merely because persons other than the contracting parties or persons interested in

them have a mercenary motive. What the law refuses to recognise is the contract or agreement whereby third persons who are not parties to the

transaction try to acquire monetary benefit by promoting it.

Even the adoption of an only son has now Seen held to be valid, however reprehensible that may be according to the strict mentions of Hindu

jurists. The Court always try to give (effect to an arrangement which is irrevocable and are very reluctant to set aside such an arrangement, unless

the arrangement itself is illegal or opposed to public policy. In Venkata Krishnayya v. Lakshmi Narayana ILR (1908) M 185 it was held that,

although a marriage when performed in the Asura form is valid, an agreement to pay to the father any consideration for such marriage is not valid

and the money cannot be recovered by a suit. If the money had been paid and the marriage solemnized, the money could not be recovered. In

Devara-yan v. Muthuraman ILR (1912) M 393 it was held 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 u/s 23, Indian Contract Act. These cases illustrate the

principle that a proper act when properly done should not be declared invalid or set aside by reason of anything which took place not between the

contracting parties but between third persons interested in the contracting parties.

The next contention urged is that the clause in the razi-nama is a penal clause and therefore should be relieved against. The clause is:

If for any reason if the Ist defendant should fail to make an adoption in the said manner, the Ist defendant should enjoy as rightful owner only one-

half out of the entire property mentioned in the plaint schedule, that is, acres 27-79 1/2 and the house according to good and bad qualities, that the

Ist defendant should deliver possession of the remaining half of the property to the plaintiffs for being enjoyed by them.

The appellant if he failed in the suit of 1911 would have lost the whole of his property. By the arrangement he was allowed to retain the whole

of the property if he adopted the boy. By adopting the boy the appellant''s share would be one-half of 27 odd acres as the adoptive son would be

entitled to an equal share and by not adopting the boy his share is not taken away. It is to his advantage to make an adoption and if he adopted the

particular boy he would get for the boy half the suit property. Whether he makes an adoption or not the share to which he would be entitled would

be the same. It is therefore not easy to conceive how the clause could be said to be a penal clause.

It is next urged that the plaintiff if he succeeded would be only entitled to one-third of 29-79 acres and his share being one-half nearly 14 acres

if the adoption did not take place the clause should be considered a penal clause. As already pointed out it was a family arrangement and it must

have been considered an equitable arrangement at the time. It is suggested that for costs and other reliefs 5 acres more were arranged to be given

to the plaintiffs in case the adoption did not take place, and as we have no materials before us as to why 5 more acres were to go to the plaintiffs in

the suit in case the adoption did not take place, we cannot consider the contention and family arrangement such as this should not be lightly upset.

We concur in the reasoning of the learned Judge and the conclusion he arrives at, namely, that this is an equitable arrangement. There was no

conflict between duty and interest in this case. On the other hand, the appellant of his own free will consented to make the adoption and in order to

benefit the boy to be taken in adoption the plaintiffs agreed to allow him to retain the property in the suit and if he did not make the adoption he

was to lose the advantage which was promised to him.

In the result the appeal fails and is dismissed with costs of 1 and 2 respondents.

Waller J.

There is, to my mind, nothing that is contrary to public policy in the agreement which was intended to settle a family dispute. It cannot be said

that the appellant was either induced or forced by it to make an adoption. If he adopted he took half the property and the adopted son took the

other half. If he failed to adopt, he still took half the property. Whichever course he followed, the result was, as far as he was concerned, the same.

He gained no more by adopting than he did by refusing to adopt. There was therefore no improper inducement to adopt. He lost nothing by not

adopting. There was therefore no penalty for his failure to do so. I agree that the appeal must be dismissed with costs of respondents 1 and 2.