P SUBBARAJU Vs. INARAYANARAJU

JUDGEMENT

(1.) This second appeal arises in a suit instituted by the plaintiff-appellant to set aside the razinamah decree in Original Suit No. 52 of 1911 on the file of the Additional District Munsiff's Court of Tanuku. The facts of the case are not seriously disputed. The father of defendants Nos. 1 and 2, Thammiraju, Gangaraju the third defendant, and Venkatraju, father of defendants Nos. 7 and 8 were brothers. Their father Subbaraju took Appalaraju, his nephew, into his family for helping him in cultivation and gave him his daughter in marriage. The plaintiff- appellant is the son of Appalaraju. He (appellant) lived and worked in the family as one of its members, disposed of his own properties and increased the family properties with the proceeds thereof. Later on, the three brothers and Appalaraju effected a partition of all the family properties into four equal scares, but continued joint cultivation till about-twelve years ago. In 1911, defendants Nos. 1 and 2 instituted a suit against Subbaraju, the present plaintiff, for the recovery of 9 acres of land viz., one-third share of the properties allotted to Appalaraju on the ground that Appalaraju had no right to get a share at the partition. All the other members of the family were parties to the suit. When the suit came on for hearing, it was compromised between the plaintiffs, i.e., the present defendants Nos. 1 and 2 and the first defendant therein, Subbaraju, who is the present plaintiff and a razinamah decree was passed. The material portion of the decree runs as follows: "... The total extent of 27 acres 79 cents of the land and the house relating to the share of the first defendant's father mentioned in the plaint schedule which devolved on the first defendant, should be enjoyed by the first defendant as rightful owner, that the first defendant should adopt Thammiraju, who was the second son of the plaintiff, within two months, that the first defendant and the said adopted son should remain as joint members of the family and enjoy the entire property mentioned in the plaint schedule, that is, 27 acres 791/2 cents and the house according to Hindu Law; that, if for any reason the first defendant should fail to make an adoption in the said manner, the first defendant should enjoy as rightful owner only one-half out of the entire property mentioned in the plaint schedule, that is, 27 acres 79 cents and the house, according to good and bad qualities, that the first defendant should deliver possession of the remaining half of the property to the plaintiffs for being enjoyed by them as rightful owners, that if the possession is not delivered so, the plaintiffs should obtain possession through Court warrant (execution) after getting it partitioned, that the plaintiffs should give up other reliefs asked for by them, that each party should bear his respective costs and the plaintiffs should give up the other defendants in this suit." The proposed adoption of Thammiraju not having taken place, the defendants would be entitled to get about 14 acres of land according to the razinamuh decree.

(2.) The plaintiff who, as already mentioned, was the first defendant in Original Suit No. 52 of 1911, now seeks to set aside the razinamah decree on the ground that it is illegal and invalid as its provisions are against law and opposed to public policy and as it contains also a penal clause. Issue No. 6 which related to this ground of attack against the decree was not considered by the lower Appellate Court for reasons which it is unnecessary now to discuss, as the respondents learned Vakil has very fairly stated that the appellant is by right entitled to urge this ground. As the question now raised m one relating to the interpretation of the razinamah decree, it is agreed by both the parties that it may be disposed of here in second appeal.

(3.) The compromise decree quoted above contains two terms (1) "that the first defendant should adopt Thammiraju who was the second son of the first plaintiff within two months.... (2) that, if for any reason the first defendant should fail to make an adoption, the first defendant should enjoy as rightful owner only one-half of the entire property.... and that the first defendant should deliver possession of the remaining half to the plaintiffs...." It was urged on behalf of the appellant that the first term of the compromise decree is opposed to public policy and is unenforceable as it holds out an inducement to the first defendant in that suit, viz., the present plaintiff, to make an adoption and that it is opposed to Hindu Law, that if the first term is thus unenforceable, the second term depending on the first is also unenforceable, that the second term embodied a penal clause and that generally, the razinamah in its entirety is bad as its object obviously is to compel the first defendant in that suit to make an adoption. In support of his argument that the first term of the razinamah decree is unenforceable. Mr. Krishnaswamy Iyer, the learned Vakil for the appellant cited two classes of cases; class (1) showing (a) that a contract to give a son in adoption in consideration of an annual allowance to parents is void. See Eshan Kishore Acharjee Chowdhury V/s. Haris Chandra Chowdhury 13 B.L.R. App. 42, (b) that a promise to pay, or payment of money for the purpose of inducing a man to part with his son to another for adoption cannot but be reprobated see Murugappa Chetti V/s. Nagappa Chetti (1906) 29 Mad. 161, and class (2) showing (a) that a contract to make a payment to a father in consideration of giving his daughter in marriage is immoral and opposed to public policy see Kalavagunta Venkata Krishnayya V/s. Kalavagunta Lakshmi Narayana (1909) 32 Mad. 185, and (b) that an arrangement between A and B that B's daughter shall marry A's son and that, if she fails to do so, B shall pay a sum of money to A is opposed to public policy and void see Devarayan Chetti V/s. Muthuraman Chetti (1913) 37 Mad. 303. In applying the latter class of decisions, it must be remembered that one of the reasons suggested for not enforcing agreements to reward parents for giving their children in marriage is, that such agreements tend to a conflict of interest with duty, (see Pollock and Mulla's Indian Contract Act, p. 145). Generally stated, it may be said that this principle explains the decisions in all the eases above quoted. Tin question for consideration, therefore, is whether the agreement embodied in the first term of the razinamah decree should, be considered to be bad on account of a conflict between the interests and the duties of the x arties to it. In my opinion, the agreement to adopt contained in the first term is above reproach if we realise the full significance of all the circumstances relating to it. It will be remembered that the father of the plaintiff lived as a member of an undivided Hindu family, married a lady of that family in the circumstances already mentioned and got for his share one-fourth of the properties which are in the enjoyment of the plaintiff. As mentioned in. the plaint, a sister of defendants Nos. 7 and 8 was given in marriage to the plaintiff himself. If the plaintiff was persuaded to adopt the first defendant's son, it was thought by the patties that the vexed question of the plaintiff's father's right to the property, would not be agitated, and that the property would also devolve on the first defendant's son and would not go to a stranger. Instead of showing any conflict of interest and duty, this agreement to adopt contained in the first terra of the compromise-decree shows, in my opinion, that the parties to it intended once for all to bring about a reasonable and equitable family settlement without in any way jeopardising the interest of the family and also without injuring the interest which the plaintiff bad acquired in the famrily properties . I do not, therefore, think that the first term of the razinamah decree should be considered to be bad as opposed to public policy; if so, the second term depending on the first should not also be considered objectionable.