VITHAL LAXMAN MUTALIK Vs. YAMUTAI SHRIDHAR TAMBOLI

JUDGEMENT

(1.) This appeal raises an important question of law. Plaintiff sued to recover Rs. 5,000 odd in the following circumstances. Plaintiff is the granddaughter of Laxmanrao Mutalik, whose widow Gangabai adopted the defendant on April 22, 1911. On the same day that the adoption deed was executed, the defendant passed an agreement to Gangabai that out of the estate of the adoptive father he would pay Rs. 5,000 to the plaintiff, Gangabai's daughter's daughter. The defendant was a major at the date of the agreement. The plaintiff was a minor at that date, and the agreement was that the money was to be paid on her attaining majority. The plaintiff, therefore, sued to recover it, and the First Class Subordinate Judge of Satara has awarded her claim. Defendant appeals.

(2.) The learned Subordinate Judge has held that defendant constituted himself a trustee for the payment to plaintiff. Under the same agreement and by the same clause of the agreement, which is Exh. 18, p. 27, at p. 30, the defendant also agreed to pay Rs. 1,000 to Vinayak, the minor son of Gangabai's brother Krishnarao. He also failed to pay that, and Vinayak sued him in 1915. The first Court dismissed his claim. On appeal the District Court granted it, but in Second Appeal No. 983 of 1917, the High Court dismissed the suit. The judgment is at p. 16 of the record. The High Court here were considering the same clause of the same document with which we are now concerned. There is no apparent distinction between the two cases, and the finding of the High Court that the defendant did not mean to constitute himself a trustee for the purpose of carrying out what was agreed in the document is diametrically opposite to the finding of the learned Subordinate Judge in the present case. It has been contended by the learned Counsel for the appellant that adoption is not a contract. He refers to Mulla's Hindu Law, 7 Edition, paragraph 492, in which it is stated that an adoption is not invalid merely because the person giving in adoption receives a consideration for the adoption from the person taking in adoption, though the promise to pay cannot be enforced in law, and refers to Krishnamurthi Ayyar V/s. Krishnamurthi Ayyar (1927) L.R. 54 I.A. 248 where the Privy Council held that with the single exception of an arrangement regulating the right of the widow as against the adopted son, any limitation on the estate of the adopted son is invalid. He also refers to Shri Sitaram Pandit V/s. Shri Harihar Pandit (1910) I.L.R. 35 Bom. 169 Various cases decided by the High Courts have been referred to in Krishnamurthi Ayyar V/s. Krishnamurthi Ayyar, and in referring to the Bombay cases it is stated that while the Courts have always upheld the grant to the widow of her interest for life, when the gift is to outsiders it has been held invalid, and that whether made by the widow or the adopting father himself. But that was the case of a minor, and there is a recent case of this Court, Pandurang V/s. Narmadabai , in which the adopted son was of full age at the time of the adoption, as in the present case, and it was held that he was bound by an agreement made at the time of the adoption with the adoptive father as regards the extent of his interest in the property of the adoptive father, and the learned Chief Justice, after referring to the case of Krishnamurthi Ayyar V/s. Krishnamurthi Ayyar, distinguishes it on the ground that the adopted son in Krishnamurthi's case was a minor, and says (p. 1212): If he agrees to be given in adoption and at the same time agrees that on that event happening he will carry out certain agreements as to the property which he will acquire on adoption, I cannot see why he should be at liberty to accept the adoption and disregard the agreement. I know of no principle in Hindu or English law which enables that to be done and I do not think that their Lordships of the Privy Council intended to hold that such a thing was legal.

(3.) Then the learned Chief Justice goes on to refer to Ramasawmi Aiyan V/s. Vencataramaiyan (1879) L.R. 6 I.A. 196 as an authority in favour of the view that a major is bound by the agreement which he makes on adoption. I am, therefore, of opinion that the defendant would be bound by the agreement made by him on adoption, he being a major at the time, and if the suit had been brought by the person with whom the agreement has been made, the suit would succeed.