PARVATIBAI SHANKAR PATHAKI Vs. ANANDRAO PATHAKI

JUDGEMENT

(1.) THIS appeal arises in execution proceedings and raises a short interesting question as to the proper denotation of the word "avalad". The decree which is the subject-matter of these execution proceedings was passed in 1870 and the respondent is seeking to execute it on the ground that he belongs to the family of the decree-holder by adoption. The claim made by the respondent was resisted by the judgment-debtors on the ground that he is not entitled to the benefit of this decree since he does not fall within the class of heirs mentioned under the sanad. That is how the question of the construction of the said sanad becomes material for the decision of this appeal. The learned trial Judge took the view that the words of the sanad referred only to the natural sons and their progeny, and since the present claimant had come into the family by adoption, he was not entitled to execute the decree. On appeal the contrary view prevailed with the result that the proceedings were sent back by the lower appellate Court for final disposal according to law. The judgment-debtor has come in appeal against this order.

(2.) THE grant is evidenced by two documents, exhibit 70 the sanad in English, and exhibit 59 in Marathi. THE material clause of the English sanad provides that the annual allowance of Rs. 346-11-0 was confirmed hereditarily in the terms of the original sanad to the lineal male descendants of Laxman Pathak bin Moorar Pathak, the original grantee, from generation to generation. THE expression "the lineal male descendants" purports to be the translation of the word "avaladikade" whereas the expression "from generation to generation" is the translation of the word "vanshaparampara". On behalf of the appellant Mr. Joshi has contended that the word "avaladikade" excludes adopted sons and their progeny, and he further contended that the said word is a word of limitation which must control the somewhat wider expression "vanshaparampara" i. e. from generation, to generation, which follows it. In support of the contention that the word "avalad" should exclude an adopted son, Mr. Joshi has relied upon the meaning of the word as given by Molesworth. THE word "avalad" according to Molesworth means "lineage, race; especially understood of the male descendants", and he makes a reference to the word "afalad" which according to him is used in contradistinction to the word. This latter word denotes descendants or lineage of the female branch. It is also applied to the descendants of an adopted son, to offspring through a kept mistress, or female slave, or woman in her second marriage. It would thus appear that the word "afalad" according to Molesworth may in a secondary sense be applied to the descendants of an adopted son. I apprehend that that may be no justification for holding that the said word includes the adopted son himself. Mr. Joshi seeks to derive some assistance for this interpretation of the word "avalad" by reference to the decision of this Court in Mahadev v. Secretary of State (1899) 1 Bom. L. R. 528, In the said case the Court was dealing with a grant under which certain lands were to be continued so long as there would remain in existence any lineal male descendants of the original grantee. An adopted son having claimed to be such a lineal male descendant and on that basis having resisted the Government's attempt to levy assessment on the ground that the land had passed out of the hands of the lineal male descendants of the original grantee, it was held by this Court that the adopted son, who was defendant No.2, "is not a lineal descendant of Ramchandra, but has been brought into the family by an unrecognized adoption, and as such is a third person, holding the same position as a purchaser, donee or assignee would. " THE finding that defendant No.2 was not a lineal male descendant of Ramchandra must, I think, be read in connection with the decision as to the position of defendant No.2, namely that he was a person whose adoption had been unrecognized and as such was no better than a third person, and his position on that basis was compared to that of a purchaser, donee or assignee. This decision would not, therefore, be of much assistance since the person whose rights were being adjudicated upon was not a validly adopted son. In any event, that was the view which this Court took about his status in view of the fact that his adoption was unrecognized.

(3.) THE result is that the appeal fails and must be dismissed with costs. .