PURSHOTTAM MUKUND SAMANT Vs. RAKHMABAI MUKUND

JUDGEMENT

(1.) This is a case the determination of which depends upon whether a certain agreement, Exhibit 61, in the case, can or cannot be given effect to. The agreement is one of a kind that has often been the occasion of litigation. It was made on the occasion of an adoption and it gives to the adoptive mother, her husband being dead, a certain control over the property which would otherwise immediately pass to the adopted son. This was with the consent of the natural father who gave his son in adoption.

(2.) Mr. Jayakar has argued the case from the side which maintains that the agreement cannot be given effect to. He has not asked us to go into the general question, an attempt to do which was very recently made and the result of which appears in the judgment in the case of Vyasacharya v. Venku bai . All he asks us to do is to find that the agreement is not fair and reasonable and must, therefore, be set aside.

(3.) Now I speak of this document as an agreement, because it has been so termed. Whether technically it is an agreement or not, does not matter in the view which we take of it. It provides, to summarize it, that the widow is to continue in management of the property, that she is to retain all the rights she had of managing as long as she lives, of receiving the income, of recovering money &c, and it further provides that she is to retain all the rights which she had in the absence of a son, and that the adopted boy is to get after her his rights. Now if effect is given to that agreement, it would mean that the widow had not only the management of the property but the unfettered right of disposing of the income. She could turn the boy out of her house and refuse to give him a single pie. I do not for a moment say that she would do this, she certainly has not done it. But if the rights of the parties were to be regulated by this agreement, she could do it and it seems to me to be very clear that a document which would make this possible cannot be regarded as a reasonable provision as between the adoptive mother and the boy whom she has taken in adoption. Therefore applying the test which we are asked to apply as to whether these provisions are fair and reasonable, I come to the conclusion that they are not, and that consequently this agreement must be regarded as non-existent. That being so, the lad , who is the plaintiff in the case, has no right to succeed in her suit. She has prayed amongst other things for possession from her son and the effect of making a decree in her favour would be to uphold the agreement which, as I say, is neither fair nor reasonable. Consequently the decree of the lower Court must be set aside and the claim must be dismissed.