MANORAMA BAI Vs. RAMA BAI

JUDGEMENT

(1.) THIS is an appeal preferred against the decree and judgment of the learned subordinate Judge of South Kanara in O. S. No. 118 of 1950.

(2.) THE facts are :--Ramakrishnaya, a retired District Registrar, and Ananda Rao, a retired Sub-Assistant Surgeon, were brothers governed by the Mitakshara Law. Both had divided themselves from the other members of the family and from each other. In 1934 Ramakrishnaya, the retired District Registrar, owned a house and garden and also some money and investment (mentioned in schedule A of the plaint) and Ananda Rao owned immovable properties described in item 2 of the plaint B schedule which he had got at partition and items 1 and 3 to 6 therein which were his self-acquisitions, and also large investments of moneys of his own. It is common ground that Ananda Rao was a rich brother and Ramakrishnaya was a poor brother. This Ramakrishnaya was childless though he had married twice. His childless second wife Radhamma alias Kaveri is even now alive and she is the 7th defendant in the suit. Ananda Rao's wife had died by 1934 and by her he had two sons living Nagasayana then aged about 13 and Hayavadana, then aged about 11, who is the husband of the plaintiff and the plaintiff after her widowhood is now pursuing her career as a, medical internee. This Ananda Rao had also five daughters and are defendants l to 5 in this suit. All of them have been married and some are well-to-do and some are ill-to-do. The 6th defendant is the husband of Ananda Rao's daughter Tara Bai, who is the 4th defendant. This was the state of things in 1934 when Ramakrishnaya has been pressing his brother Ananda R0o to give him his younger son Hayavadana in adoption.

(3.) IT is amply established in evidence that Ananda Rao, though willing to oblige his brother for whom he seems to have had great affection, did not want to be unjust to Hayavadana as he, Ananda Rao, was a rich man and Ramakrishnava was comparatively poor and by giving Hayavadana in adoption and cutting him off from the family of his birth, Nagasayana would get his entire properties and hayavadana would only get the small portion of Ramakrishnaya. The brothers consulted the then leading advocate in Madras coming from their district viz. , the late well-known Government Pleader Sri B. Sitarama Rao. This correspondence is set out in Ex. A 2 dated 13-5-1934. The brothers have solved for themselves this problem of giving Hayavadana in adoption and at the same time ensuring to Hayavadana one half of the properties of Ananda Rao by the legitimate Hindu Law legal device of re-union. On 15-5-1934 the brothers entered into a registered family agreement (Ex. A 3)which runs as follows:-"under the Palu Nishoodi (partition deed) jointly entered into and got registered in the year 1894 by the first and second individuals among us, and their other brothers viz. , Srinivas Upa-dhyaya and Krishna Rao and also our father, the first individual got himself divided from the other members of the family. Further, in the year 1916, he retired on pension from the District Registrar's post; and in the year 1918, when his first wife Munamma died, he married again (a second wife) named Kaveri alias Radhamma and he has been living with her in a separate house at the said place, Kambala. After the death of father of individuals Nos. 1 and 2 in the year 1903, the second individual and the two individuals mentioned above, who were living together, jointly entered into a partition deed. The second individual who acquired a share under the same has been from the date of his retirement in 1932 on Government pension from the Assistant surgeon's post, residing in a separate house in the said place, Alke, along with his minor sons. His wife Padmavathi, has died and his five daughters have also been got married. All the properties such as movable, immovable and cash belonging to the nrst individual are his self-acquisitions and they belong to him as his own. Out of the properties belonging to the second individual, only a small portion thereof has been got by him by way of share and a major portion of the same has been his own self-acquisition and it can be utilised by him as he pleases. The first individual who has no issue has become old and is past 73 and it has become impossible for him to carry on the entire management of his family affairs and properties in future in the same manner as up to now; and his wife Radhamma is not competent to take up the entire burden of such management. For relief of such difficulties and also the purpose of performing regularly the karmas according to Sastra for future welfare of the first individual and his wife, Radhamma, after their death, the first individual wanted and also made attempts to adopt a son. But as it was not possible to get one from outside, the nrst individual wanted the second individual to give him in adoption the second individual's minor second son Hayavadana. The second individual could not make up his mind in this matter either by way of satisfying the desire of the flrst individual or to allow his great family to become extinct for the following reasons i. e. in case Hayavadana is given in adoption to the first individual, the second individual would have for himself only one son viz. , Nagasayana; further, till the time, Hayavadana attains age and becomes able to carry on the management of the properties and family affairs of the first individual, he himself, i. e. , the second individual himself, shall have to undertake the burden of conducting that management also and shall have to keep separate accounts and records in respect of the same; and for that, it is not possible for him at present at this age; and further, the shares of properties got by his two sons would not be equal. Hence, in order to overcome these objections of the second individual who could not make up his mind and in order that both the families also may prosper alike, we have decided to mingle the properties of the first individual with the properties under the possession of the second individual and to live from now onwards jointly. All the movable and immovable properties which belonged separately to individuals Nos. 1 and 2 up to now shall from now onwards be joint properties. With regard to realisation of the amounts of pensions of the first and second individuals and the geni, house rent and interest etc. , due to us and also with regard to payment of tirva, tax etc. payable to others, although any one out of them could have done the same without the other's objection, the rights and responsibilities for profit and loss relating to management shall belong to our joint family only. Further, the immovable properties belonging to us should be alienated by us only jointly and should not be alienated by each of us separately. After the lifetime of the individuals Nos. 1 and 2, if the first son of the second individual, viz, Nagasayana and the second son of the second individual who has been decided to be taken in adoption by the first individual do not like to live jointly, they shall be entiled to get all the movable and immovable properties of this joint family of ours partitioned as a whole. After the death of the first Individual, if his wife Radhamma does not like to live jointly in the family or after Hayavadana attains majority, if his adoptive mother Radhamma does not like to live jointly with him and if she wants to live separately, the ejaman of the family at the respective times shall be bound not only to provide with conveniences, such as buildings, etc. , required for her residence but should at the beginning of each respective month make payment at the rate of Rs. 15 per month towards the expenses of her maintenance up to her death with security of the properties of the family. In case, a separate building is left for her maintenance, the tirva and the tax relating to the same should he paid from the family itself and the responsibility of payment of the same should not be placed upon her. Although the cold jewels worn by her belong to her as her stridhana, it is proper that she should sell so much of them only as would be sufficient for purposes of charity by her and for making suitable presents to such of the persons as would be helpful to her in her difficult times and to save the remaining portion and give the same for use by his son's wife".