GULAB KUNWAR Vs. ASKRAN

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Mst. Gulab Kunwar in a suit for arrears of rent and ejectment. My order dated the 7th January, 1955, shall form part of this judgment. 2. The facts out of which this appeal arises have been narrated at length in that order and need not be repeated fully. It is enough to state that the plaintiff's case was that Jethmal, father of the defendant respondent, had taken the suit shop on rent from the plaintiff by a rent-note dated the 22nd February, 1932, the rent settled being Rs. 5/p. m. After Jethmal's death, his son, who is the defendant respondent, continued to pay the rent for some time but thereafter failed to pay it with the result that the plaintiff gave him a notice on the 25th June, 1946, asking him to quit within seven days of the receipt of the notice and in default to be liable to pay rent at an enhanced rate of Rs. 20/- per mensem. The defendant did not comply with the notice and, therefore, the plaintiff brought the suit, out of which this appeal arises, on the 17th December, 1946. The defendant contested the suit on all possible pleas and I have already disposed of all of them except one by my order dated the 7th January, 1955. I have held that there can be no question at this stage as to the execution of the rent-note by the defendant's father, which has been held by the two courts to have been so executed; that the rent-note covered not only the shop on the ground floor but the malia or the room on the roof thereof and the defendant was a defaulter having not paid rent from 17th Jan. , 1946 to 17th Dec. , 1946, and, was, therefore liable to be evicted. It has also been held by me that the plaintiff could claim enhanced rent at the rate of Rs. 12/8/-per mensem from the date of the notice but no more. The main question which now remains to deal with and which had prevailed with the lower appellate court resulting in the dismissal of the plaintiff's suit is whether the plaintiff had any locus standi to bring this suit as she had admittedly taken one Misrilal in adoption to her husband before the suit was filed. For the reasons which I have stated at length in my earlier order and which it is entirely unnecessary to re-iterate, I considered it necessary to frame a specific issue on this question and remitted it to the trial court for a finding thereon. That issue was as follows Whether the plaintiff Mst. Gulab Kunwar was divested of her right as regards the suit property by force of the adoption made by her of Misrilal, and whether she had no right to bring the present suit? The finding of the trial court is that Mst. Gulab Kunwar has not been divested of her right with respect to the suit property on account of the adoption of Misrilal and that the had a right to bring this suit. The question for determination, therefore, is whether this finding is correct. Learned counsel for the respondent tenant has strenuously opposed it and his contention is that the deed of adoption executed by Mst. Gulab Kunwar in favour of his adopted son Misrilal and by which the rights of the latter were curtailed was entirely of no effect in so far as the rights of the adopted son were diminished by it. THIS brings me to a consideration of the terms of the deed of adoption. In the introductory part of the deed Mst. Gulab Kunwar stated that she was an old woman of 61 years of age and that she had no son and that she was desirous of continuing the line of her deceased husband by an adoption and, therefore, she was taking Misrilal son of Milap Chand, who was a relation of her, in adoption to her husband. The lady then went on to state that Misrilal would thenceforward be the malik of the entire estate of her husband, movable and immovable, and that Misrilal would do business in the name of Milapchand and that Misrilal would have all the rights of a born son in the new family. If the adop-tion-deed had ended here, there would have been no trouble whatsoever as to the import of this instrument. But Mst. Gulab Kunwar was obviously anxious to safeguard her own rights in her old age and she deed went on further like this,

(2.) VKSJ esjs ifr dh dqy leifr eky eudwyk o xsjeudwyk tk;nkn ij esjh ftunxh rd rks esjk gh ekydkuk gd jgsxk VKSJ esa tl tkrjk /kjeiqu oxsjk tks dqn Hkh islk vpns dk;z esa yxkus esa viuh ejth dk mi;ksx dke esa ykaxh ftlls ph: feljhyky fdlh fdle dk mtj dj. k ikosxk ugha VKSJ gj odr esjs gqde esa jgsxk VKSJ esjs lks cjl iwxus ds ckn dqy leifr eky eudwyk o xsj eudwyk tk;nkn o ysu nsudk ehy ekydkuk gd ph: feljhyky dk gksxka** In other words, the adoptive mother said that so long as she was alive, she would continue to remain the malik of the entire estate of her husband and that she would be free to spend money on charity and other good objects according to her own desire, and Misrilal would have no right to object to this, and after her death the latter would become a full owner (dk fey ekfyd) of the estate. This last-mentioned condition is obviously inconsistent with what Mst. Gulab Kunwar has stated in the earlier part of the deed and introduces therein a substantial curtailment of the rights of the adopted son. The latter signed the deed apparently in token of his consent to the terms thereof. It is common ground between the parties that Misrilal was a major at the time and was about 30 years of age, The important question to decide in these circumstance is what is the true meaning of this deed and whether the limitation as regards the rights of the adopted son contained therein was lawful. The contention of learned counsel for the respondent is that the deed, according to its terms, gave an absolute estate to the adoptive mother and reduced the rights of the adopted son merely to a shadow to whatever might or might not remain after the death of the widow and, therefore, was wholly repugnant to the fundamental principles of adoption as known in the Hindu Law Learned counsel relied in support of his contention on Kishnamurthi vs. Krishna-murthi (1) and the passage at page 146 of that judgment where their Lordships of the Privy Council observed that "as soon, however, as the arrange-' ments go beyond that, i. e. , either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist and that such arrangements are against the radical view of the Hindu law. " Before dealing with this case and its precise effect on and applicability to the facts of the case in hand, the primary question for consideration is whether the deed in this case gave or had the effect or giving an absolute estate to the adoptive mother. Now it is a cardinal principle of interpretation of documents that the proper way to construe a document is to read it as whole and to give each component part thereof due emphasis and attention and thereby ascertain the true intention of the parties to it. I would further point out that where a document contains two sets of recitals therein, which are not absolutely consistent with each other, there is yet another rule which must be borne in mind and that is that in such a case we must give effect to every part of the document if we can and arrive at a harmonious result (See Mathu vs. Meenakshisundaram