KRISHNA MHATARBA TEMKAR Vs. BABAN RAMBHAU TEMKAR

JUDGEMENT

(1.) This is an appeal by defendants 2 and 3 in a suit by the plaintiff to recover possession of certain properties on the ground that he was adopted as a son by one Manjulabai to her deceased husband to whom the properties belonged. The plaintiff's case in substance is that one Rambhau died in 1918 leaving two widows Deubai and Manjulabai. Deubai died in 1932 leaving a daughter Thakubai who was the original defendant 1 but died pending the suit. The other widow Manjulabai who is alive adopted the plaintiff on 23 February 1937. She had a daughter at that time named Dagadubai who was defendant 1A but who, after Thakubai's death, became defendant 1. The plaintiff's natural father Gangaram and defendants 2 to 6 are descendants of Bambhati's two brothers and are thus his agnates. Before the plaintiff's adoption in 1937, Manjulabai had, on 8 June 1927, sold nearly half of the property, which she got from her husband, to defendants 2, 3, 4 and 5 for Rs. 2500. Dagadubai and Thakubai had joined in passing that deed. Thereafter Manjulabai passed a document which is in the nature of a sale deed on 29 June 1929, in favour of her daughter Dagadubai and step- daughter Thakubai. It purported to be a sale of all the remaining properties to them for Rs. 900 which were to be paid to her by annual instalments in the form of corn worth BS. 60 and clothes worth Rs. 15, that is, in all articles worth Bs. 75 every year during her life. The amount of Rs. 900 seems to have been fixed in the deed only for the purpose of stamp. Otherwise the liability to give articles worth Rs. 75 was to continue till her death. It is expressly stated in the deed that both the daughters had been made owners of the property thereby. Eight years thereafter the present plaintiff was adopted by Manjulabai and he now sues to recover possession of all the properties which belonged to his adoptive father on the ground that both the deeds, passed by Manjulabai in 1927 and 1929 were without consideration as well as legal necessity and were not therefore binding on him. The defence in substance was that both tie transactions were supported by consideration as well as legal necessity. It was further contended by the daughters that the deed of 3929 amounted to a valid surrender on the par of Manjulabai of the whole of the property in her hands at that time by which she completely renounced her interest in it and made them owners thereof, with the result that the subsequent adoption of the plaintiff by Manjulabai cannot divest the property of which they had already become owners before the adoption.

(2.) The material issues before the lower Court were as to whether the adoption laid been proved, and secondly, whether the sale deed of 1929 was a valid surrender under tie Hindu law with the result that the adopted son had no right to divest the property in to hands of the daughters as well as the vendees under the deed of 1927. As regards the fact of adoption there is no doubt on the evidence that it did take place. There is a deed of adoption passed four days later on 2T February, and the evidence of the witnesses, Exs. 76 and 77 clearly establishes the factum of the plaintiff's adoption. A photograph of the persons present at the time of the adoption seems to have been taken after the ceremony was over, but unfortunately it could not be put in evidence as the photographer was ill. However, questions have been freely asked about persons who appear in the photograph in the course of the evidence. But apart from the photograph, there is sufficient and reliable evidence to justify the finding which the lower Court has arrived in support of the factum of adoption. We, therefore, agree with the finding on that point. The next question is about the effect of the deed of 1929. There is no doubt that the widow purported to convey therein the whole of the property which was with her at that time to her two daughters, and although the document purports to be a deed of sale, it amounts to a surrender of the estate which she possessed as a Hindu widow, and the learned Judge below has also taken it to be such. He is, however, of the opinion that it is not a valid surrender as the widow purported to retain her interest in the property by stipulating that the daughters should give her corn and clothes worth about Bs. 75 every year out of the income of the lands which did not exceed Es. 100 per year. According to him, this stipulation, even though it may be regarded as for a reasonable amount for her maintenance, was out of proportion to the income, and the deed was not therefore a bona fide surrender. He then discussed the evidence with regard to the legal necessity for passing the sale deed of 1927, and held that that sale deed was not supported by consideration as well as legal necessity. He was, however, of the opinion that if the deed of 1929 be regarded as a valid surrender by which the widow completely renounced her interest in her husband's estate, the question as to whether the sale deed of 1927 was supported by legal necessity would not arise and the plaintiff would not be entitled to challenge it. But having held that both the deeds were not binding against the adopted son, he passed a decree in his favour, and defendants 2 and 3 have now appealed to this Court.

(3.) As I have already stated we hold that the plaintiff has been adopted by Manjulabai as a son to her husband. The only question is whether the plaintiff, by virtue of his adoption, is entitled to recover property which has already been conveyed by Manjulabai to the defendants. Taking the deed of 1929 as a deed of surrender as the learned Judge has done, the important point to examine is whether the learned Judge below was right in holding that it is not a valid surrender because a large portion of the income of the lands conveyed has to be paid to the widow for her maintenance. In coming to the conclusion to which the learned Judge has done, he has relied upon a recent decision of this Court in Gangadhar V/s. Prabhudha ( 32) 19 A.I.B. 1932 Bom. 625 as well as on a decision of their Lordships of the Privy Council in Man Singh V/s. Nowalakhbati ( 26) 13 A.I.R. 1926 P.C. 2. As both these decisions turn upon the previous authorities of their Lordships of the Privy Council in Bhagwat Koer v. Dhaiuikhdhari Prashad Singh ( 19) 6 A.I.R. 1919 P.C. 75 and Sureshwar Misser V/s. Maheshrani Misrain ( 21) 8 A.I.R. 1921 P.C. 107 it is necessary to see first what has been established by these and also the later decisions of their Lordships. In Bhagwat Koer V/s. Dhaiuikhdhari Prashad Singh ( 19) 6 A.I.R. 1919 P.C. 75 it was held that the widow's agreement, in conjunction with her acceptance of maintenance, amounted to a complete reinquishment of the estate to the nephew who was the next reversioner. The conclusion to which their Lordships came has been enunciated as follows (page 271): ...the execution of the two ekrarnamas, followed by the acceptance of thirty years of maintenance under the terms of those documents amounted to a complete relinquishment by Anandi Koer of her estate in favour of Mahabir.