Visalakshiammal vs Sivaraman alias Veeraraghaven, minor, by next friend Vaidinadha Iyer and Another

The plaintiff, a minor, through his next friend his natural father brought the present suit for the recovery of certain properties stated to have

vested in him by virtue of his having been adopted to one Rengaswami Aiyer deceased, by his widow, the 1st defendant. The Subordinate Judge

gave a decree to the plaintiff practically as prayed for. In the present appeal by the 1st defendant no question is raised as to the plaintiff''s adoption.

The dispute here relates only to the properties specified in schedule II to Exhibit I, dated 30th December 1893, executed by the 1st defendant on

the day of the adoption in proof of it and setting forth the terms and arrangements as to the enjoyment of the property, of the adoptive father as

between the plaintiff and the 1st defendant and whereby the property described in the said II schedule to the instrument was in the event of

disagreement between the plaintiff and the 1st defendant, to be enjoyed by the 1st defendant for her life and subsequent to her death to be taken

by the plaintiff. The permission by the 1st defendant''s husband in pursuance of which the adoption of the plaintiff took place was oral and it

appears to have merely enabled her to adopt a son and made no reference as to the terms of enjoyment of the estate by either. There is also no

doubt that the terms embodied in Exhibit I were consented to by the plaintiff''s natural father prior to the adoption and that it was in consequence of

such consent that the adoption took place and Exhibit I was executed. The effect of the arrangement was to vest in the 1st defendant on the

contingency mentioned, for her life almost an exact moiety of the property inherited by her from her husband, each moiety being of the value of

about Rs. 10,000.

The question for determination is whether the decree in favour of the plaintiff in so far as it relates to the property mentioned in the said II

schedule to Exhibit I is sustainable.

Now, the effect of an adoption in the Dattaka form is to transfer the person adopted from his natural family to that of the adoptive father, such

transfer necessarily carrying with it on the one hand the cessation of whatever right the adopted son possessed in the property of the natural family

and, on the other hand, under the Mitakshara law, the acquisition, among other things, by him of the right that accrues to an aurasa son on his birth

in respect of the ancestral property of the father. Though a person may at his discretion give away a son of his in adoption, or refuse.to do so and

though a sonless man may, according to his choice, accept, or refuse to accept, a son in adoption, yet once the giving and the accepting have taken

place, the change of status, with the incidents as to property annexed thereto by the law, follows without the slightest reference to the volition of the

party giving or the party taking. No doubt, the adoptive father can simultaneously with the adoption make such arrangement in respect of the joint

property of himself and the adopted son as under the law a man can lawfully make not with standing the existence of an aurasa son. For example,

as a part and parcel of the transaction of adoption the adoptive father may, of his own will, effect a partition of the property between himself and

adopted son--Cf. Kandasami v. Doraisami Aiyar ILR 2 M. 317. He may likewise provide for the maintenance of those who under the law would

be entitled to be provided with maintenance out of the joint property. Such arrangement for maintenance may be made independently of any

partition and would be an act within the scope of the father''s paternal authority under the law and the circumstance that the father refrains from

exercising his paternal authority to the fuller extent of effecting a partition could not, in reason, detract from the validity of the arrangement made

merely in respect of the maintenance of those who have a right thereto. So long as the partition, or the provision for maintenance, is fair and just,

the adopted son cannot raise any question in respect of either; and it may be added that even when the provision for maintenance made by an

adoptive father to a party entitled thereto seems to the Court more liberal than what, if the matter were litigated, it would itself award as

maintenance, the provision will presumably be upheld if it was made bona fide and not for the purpose of alienating joint property under the guise

of a provision for maintenance.

In cases of adoption after the death of the adoptive father by his widow under his authority, every lawful disposition of his property made by him

even by a will would be binding on the adopted son for the obvious reason that those dispositions become operative from the moment of the death

of the testator while the adoption must necessarily take place at some time subsequent to the death and the rights accruing by virtue of such

adoption are only in that part of the estate which remains undisposed of at the moment of the adoption. For like reasons alienations by a widow of

her life interest made before the adoption will also bind the adopted son (Sreeramulu v. Kristnamma ILR 26 M. 143). But no transfer made or

agreement entered into, even though simultaneously with the adoption, or as a condition thereto, can bind the adopted son if they are inconsistent

with his rights under the law as they would stand at the time of the adoption apart from any agreement between the parties giving and receiving.

Take, for example, a case where a natural father, in well-to-do circumstances, gives a son of his in adoption to a divided brother, wfio is

comparatively poor and enters into an agreement that the adopted son shall, notwithstanding the adoption, continue to be entitled to the property

belonging to the members of the natural family. Would such an agreement be binding upon the members of that family? Would the adopted son in

such a case enjoy the benefits accruing from survivorship incident to membership in that family? Take, again, the case of an adoptive father subject

to the Mitahshara la;v arranging at the time of adoption that the adopted son is to have no interest in the ancestral property during the lifetime of the

adoptive father, would that prevent the springing up of co-ownership between the adojjtive father and the adopted son which is the inevitable

incident of the relation of father and son under that law, while unseparated? These and similar conditions and agreements would not in any way

touch the validity of the adoption itself as that altogether depends upon other considerations (compare Shaiya Eabidat Singh v. Maharani Indar

Kunwar L.R. 16 I.A. 53). They must necessarily be looked upon as agreements or conditions essentially repugnant to the status created by

adoption and therefore not binding.

To attempt to support them on the footing of agreements by a person representing the adopted son is hardly possible. For before the adoption

the natural father of the person to be adopted could represent the latter only in regard to the property vested in him at the time and no consent of

his could operate on property coming to the son after the adoption, since the natural father''s power to represent his son ceases with the giving

away of him--cf. Bhaiya

Rabidat Singh v. Maharani Indar Kunwar L.R. 16 I.A. 53 . Similarly, the adoptive father could not purport to act on behalf of the person to be

adopted before the adoption. And as soon as the adoption takes place the two become joint owners and the adoptive father can make transfers

and enter into agreements so as to bind the adopted son only for purposes which make them binding on him under the law. Nor can weight be

attached to the argument that the test of the validity of agreements entered into between the party giving and the party receiving a person in

adoption simultaneously with it, is whether such agreements are beneficial to the adopted son. For though where some one duly empowered to

represent a minor in a matter enters into agreements on his behalf, the validity of such agreements will depend on whether they are for the minor''s

benefit, yet inasmuch as neither the party giving nor the party receiving in adoption can lawfully represent him in agreements or things forming part

and parcel of the transaction of adoption, no question of benefit or no benefit can legitimately arise for determination in such cases.

Nor, again, does the doctrine of approbating and reprobating with reference to the same thing seem to be capable of being rightly invoked

against the adopted son in these cases. Except where the person given in adoption is of full age and assents to the conditions and agreements

between the parties giving and receiving, a case which would be very rare and in which such assent would preclude any question like the present

being raised, the transaction would take place without any reference to the adopted son''s will and consent. No doubt when a thing is capable of

being rejected or accepted in its entirety the doctrine referred to should be applied if good faith requires its application. Now, the transaction of

adoption is in the nature of a sacrament, or, at all events, it creates a status. If the condition attached is such as to invalidate the adoption itself, then

there is an end of the matter and there is nothing to affirm or disaffirm. If, on the contrary, the condition leaves the adoption valid, the legal relation

created thereby cannot possibly be renounced and the adopted son must be held entitled to repudiate conditions sought to be attached to the

adoption by the parties giving and receiving when the conditions are inconsistent with his rights under the law.

It is to be observed that the arrangements in the present case cannot be supported to any extent as a provision for maintenance for the 1st

defendant, as the adoptive mother had, linger the law, no power to reserve or provide maintenance for herself. When occasion for such provision

arises the same must be made by the adopted son or under''an order of Court.

In this view the reservation of a life-interest by the widoor in the property in dispute will not bind the plaintiff who can, therefore, on attaining

age, avoid the arrangement (Ramaswami Aiyan v. Venkataramaiyan L.R. 6 I.A. 196 though, until then, the posession of the widow, it would seem,

cannot be disturbed.

That the plaintiff is not bound by the arrangement is in accordance with the conclusion in Jagannadha v. Papamma ILR 16 M. 400 where the

facts, so far as the present question is concerned, were practically on all fours with those here. But to the extent to which that decision is supported

by reference to an alleged absence of power of alienation in the widow, the reasoning can be hardly treated as satisfactory, inasmuch as if the

power of alienation possessed by a sonless man until he makes an adoption were a sufficient argument for upholding arrangements or directions

such as were in dispute in Lakshmi v. Subramanya ILR 12 M. 490 and Narayanaswami v. Ramasami L.R. 6 I.A. 196 the unquestionable power

of alienation which a widow possesses in respect of her life estate must likewise have gone to support the arrangement pronounced against in

Jagannatha v. Papamma ILR 16 M. 400. But it is difficult to see how the power of alienation posessed by a man prior to his adopting a son or by

a widow prior to her adopting one has any real bearing on the matter. If the power has been availed of and if property has been alienated before

the adoption such alienation will, of course, not be affected by what takes place afterwards. But when no alienation has actually taken place up to

the time of adoption, it is as futile to refer to what the adoptive father or the adoptive mother could have done but for the adoption as to argue

against''an aurasa son acquiring by birth aij interest in his father''s ancestral property on the ground that before such birth the father could have

given away all his property as he pleased.

It will be seen, therefore, that Jaganndtha v. Papamma ILR 16 M. 400 is, in truth, in conflict with the ratio decidendi in Lakshmi v

SubramanyanI.L.R. 12 M. 400 and Narayanasaivrni v. Ramasami ILR 14 M. 172 which ratio decidendi, as far as it can be gathered from the

judgments, seems scarcely reconcilable with the fundamental principles underlying the law of adoption.

The following question is therefore referred Eor the opinion of a Full Bench

Whether the provision in Exhibit I in favour of thelst defendant in regard to the property described in the II schedule thereto will bind the

plaintiff?

14 The opinion of the Full Bench was delivered by

Benson, J.

After stating the facts of the case, as in the Order of Reference proceeded as follows:

I understand that the plaintiff''s natural father agreed to give his son in adoption and the 1st defendant made the adoption on the condition that

the disposition of the property in Exhibit I should be binding on the plaintiff.

The question for determination is ""whether the provision in Exhibit I in favour of the 1st defendant in regard to the property described in

schedule II thereto will bind the plaintiff"".

This question is one of no small difficulty. Notwithstanding the view expressed in the order of reference to which I was a party, further

argument and consideration has now led me to the conclusion that the answer must be in the affirmative.

It is argued for the plaintiff that the matter is decided by the authority of the Privy Council and that was the view taken by this Court in the case

of Jagannatha v. Papamma ILR 12 M. 400 where the facts were on all fours with those in the present case. In that case the learned Judges relied

on the observation of their Lordships of the Privy Council in Bhaiya Ramdat Singh v. Indar Kunwar ILR 16 C. 556 : S.C.L.R., 16 I.A. 53 that it

was difficult to understand how an agreement by the natural father "" could prejudice or affect the rights of his son which could only arise when his

parental control and authority determined"". In that case, however, the question was whether the adoption itself was invalid and the decision was

that it was not. Their Lordships expressly point out that no trace of any reservation or condition is to be found in the deed of adoption and that no

conditions were attached to the adoption.

The case, therefore, can hardly be regarded as deciding that a condition made at the time of adoption and entered in the instrument evidencing

the adoption, as m this case, is void. On the contrary, it is clear from the decision of the Privy Council, in the case of Ramasamien v.

Venhataramien ILR 2 M. 91 : S.C.L.R. 61. A. 196 that such an agreement by the natural father is, at all events, not void.

Their Lordships there say (at p. 101 :--"" How far the natural father can by agreement before the adoption renounce all or part of his son''s

rights, so as to bind that son when he becomes of uge, is also a question not altogether unattended with difficulty; although the case of Chitko

Ftaghunath Rajadiksh v Janaki 11 B.H.C.R. 199 certainly decides that an agreement on the part of the father that his son''s interest shall be

postponed to the life interest of the widow is valid and binding. In this case their Lordships think it enough to decide that the agreement of the

natural father which has been set out was not void, but was, at the least, capable of ratification when his son became of age.

The concluding words seem to indicate that in their Lordships'' opinion the natural father was not legally incapable of acting as guardian of his

son and of making an agreement on his behalf with regard to the property to be acquired by the adoption If that is the true position, then the

question in each case would be whether the agreement so made by the natural father should or should not be upheld and t.his I take it, would

depend on whether the agreement in regard to the property was in itself a fair and reasonable one and one which taken as part of the contract for

the adoption, was for the minor''s benfit, as being a condition on which alone the adoption would be made. This is the principle that was adopted in

the case of Bavji Vinayakrav Jaganath Sankar Sett v. Lachmibai ILR 11 B. 381 and I think that it accords with the general practice of the people

in this presidency and their consciousness of what their law allows.

No doubt in the case of Lachmi v. Bubramanya ILR 12 M. 490 this Court went further and held that when the disposition of property was

one%rhieh the person adopting could make immediately prior to the adoption the agreement as to the property must be taken to be part of the

contract for the adoption and be valid apparently in all cases. Shephard, J. put the case in these words.

In the present case the adoption was made not by a widow, as in the case of Lakshmana Bau v. Lakshmi Ammal ILR 4 M. 160 but by the

plaintiff''s husband who, before the adoption took place, was unquestionably at liberty to alienate his property as he pleased, subject only to the

plaintiff''s right of maintenance. If being thus full owner he might before the adoption have disposed of his property in part or in whole in favor of

the plaintiff, I fail to see why he should not, when making the adoption, stipulate with the other party to the adoption that a certain part of his

property should be set apart for the maintenance of his wife and to that extent taken out of the category of property in which his intended son

should have the full right of a co-parcener. It seems to me a mistake to say that the infant adopted son on whose behalf the natural father consents

to such a stipulation can only be bound by that consent on the principle on which he might be bound by other agreements made on his behalf, viz.,

on the principle that the agreement is made for a necessary purpose, (Lakshmana Rau v. Lakshmi Ammal ILR 4 M. 160) for the supposition is

that, but for the consent of the natural father, the adoption would never have taken place. To object to the agreement is therefore tantamount to

objecting to the adoption. The adoption and the disposition of his property by the father being part of one transaction, the son never acquired any

interest in the property disposed of and therefore no question can arise as to his guardian''s competency to deal with it.

We may add that a reservation made by a widow in regard to her life interest, which she had the right to alienate before the adoption, would

stand on the same footing.

The above case was followed in Narayanasami v, Ramasami ILR 14 M. 172 Ganapati Aiyan v. Savithriamma ILR 21 M. 10 and the decision

is in accordance with the decisions in Ganesh Pandurang Agte v. Gangadhar Ramkrishna 6 B.H.C.R. 244 Ghitho Raghunath Rajadiksh v. Janaki

11 B.H.C.E. 199 and Basava v. Lingangauda ILR 19 B. 428. Among the Judges who decided these cases were such distinguished Hindu

Lawyers as ''Sir T. Muthusami Aiyar, Nanabhai Haridas and Ranade, JJ. I think that great weight must be attached to the decisions of such men on

a question like the present which I regard as one of Hindu Law modified by Hindu custom and usage developed in accordance with the

conceptions of the present time. It is to be observed that there is no text of Hindu law which either recognizes or prohibits such an agreement as

the present being entered into and it is certain, as remarked by West and Buhler [Hindu Law 3rd edition, page 1106), that in actual practice "" fair

arrangements for the protection of the widow''s interest during her life, are commonly made and are always supported by the authority of the

caste.

This is the principle on which Farran, J. proposed to decide cases like the present. He says "" By Hindu Law an infant will be bound by the act

of his guardian when bona fide and for his interest and when it is snch as the infant might reasonably and prudently have done for himself if he had

been of full age, but not where the act appears not to have been for his benefit unless he has ratified it on reaching majority. I cannot but think that

this principle ought to guide the Courts in considering whether agreements like the one under consideration can be upheld or not. If the stipulations

are unreasonable such as giving to the widow an absolute power of disposition over the property, they should be rejected as ultra vires of the

father; if reasonable, such as only to define and limit the son''s enjoyment of the property, they should be upheld.

Ravji Vinayakrao Jagannath Shanharsett v. Lakshmibai ILR 11 B. 402. The validity of the adoption, if legally made, is quite independent of the

validity of any agreement as to the property. If the agreement is such as to be inconsistent with the fundamental idea underlying adoption and the

purpose for which it is sanctioned by Hindu Law, as, for instance, if it deprived the adopted son of all right to the property of the adoptive father

and so left him without any means of performing the necessary religious offices towards the manes of his adoptive father and his ancestors, it may

well be that the Courts would regard the condition as essentially repugnant to Hindu Law andfvould refuse to uphold it. But it would seem that a

fair and reasonable disposition of the property is not essentially repugnant to Hindu Law or the purposes for which r.doption is allowed and is

nowhere forbidden by that Law. Such dispositions are commonly made and are upheld by the authority of the caste and the consciousness of the

people. In these circumstances, I think that the Courts ought not to refuse to recognize them as binding on the minor, for whose benefit the

adoption, coupled with the agreement as to the disposition of the property, was really made. It may be assumed that the natural father would not

have agreed to the adoption, coupled with the disposition of the property, unless it was for the benefit of his son to do so: nor would the adoptive

father have taken the son in adoption except on the condition agreed to. The adoption, of course, cannot be set aside and to set aside the condition

which was coupled with the adoption, while maintaining the adoption, would require the justification of strong grounds of legal necessity or public

policy.

In the present case the condition as to the property is a reasonable one and such as the Courts should uphold. I would, therefore, answer the

question referred to us in the affirmative.

Davxes, J.

29.I concur.

Russell, J.

I concur.