MITTAR SAIN Vs. DATA RAM

JUDGEMENT

(1.) This was a suit by two brothers for a declaration that the defendant was liable to pay them Rs. 15,000 within 15 years from the 14 of December 1918 in accordance with the terms of two documents of 12 of December 1918 and 14th of December 1918 respectively. There was a difference of opinion between Lindsay, J., and Lal Gopal Mukerji, J.,with the result that this case has come before us for decision. About the year 1912 one Dalip Singh died childless, leaving a widow, Mt. Manohri. Ha was a Vaish Jain Agarwal. The case, as put by the plaintiffs, is that Mt. Manohri had been given an express authority to adopt, and shortly before or on 27 of October 1918, that is some six years after her husband's death, she agreed to adopt the plaintiff, a man of full age, provided he would consent to pay according to her directions sums inter alia amounting to Rs. 20,000 and an annuity of Rs. 360 a year to a certain person. The defendant was a penniless man, and these sums of money were to be paid out of the estate which would come to him on adoption; in particular the Rs. 15,000, which is the subject matter of this suit, was a sum which the defendant had to agree to pay to Mt. Manohri's brother as a condition of being adopted. On 12 of December 1918 the lady executed a document, which has been termed a Will, and a deed of adoption and on the 14 of December the defendant executed a document, which in effect promised to carry out the conditions that she had imposed. The action has been brought now, because it is said that the defendant is making away with what undoubtedly was the ancestral property of Dalip Singh; and the plaint contains a prayer also for relief against the property on the ground of an alleged charge contained in the document of the 14 of December.

(2.) The defendant attacks the validity of the transaction on a number of grounds. His principal contention is that he is entitled to the benefit of the adoption freed from any conditions. He says that the conditions were not such as a Hindu widow could legally impose. It has been conceded by the defendant that a Hindu widow, when making an adoption can impose stipulations which are reasonable and proper for her own protection, and that agreements of this character for maintenance, and at times, management of the property have been upheld. But it is urged that there is no case in which a widow has been permitted to benefit her own relatives and friends and has bargained for money or property to be made over to them as a condition of the adoption. The plaintiff contended that as regards a Vaish Jain Agarwal, there is a custom by which the widow could impose any conditions she liked. But custom was not pleaded nor was any evidence given of it. I think that the case must be governed by the general principles of law applicable to Hindu widows, and that this Court would be setting up a dangerous precedent if it accepted the view that Mt. Manohri had power to make any bargain which was pleasing to her, advantageous to her relatives, and detrimental to the ancestral estate. The ancestral property left by Dalip Singh is probably in the neighbourhood of two lakhs in value. The defendant contends that the lady had unlimited and unfettered power and could have made such an agreement as would have given a few thousand or a few hundred rupees only to the man whom she was adopting to her husband, and that she could have required in return for the adoption the payment over by the son of practically the whole balance of the estate to her nominees.

(3.) I am of opinion that a Hindu widow be she a Jain or of any other caste, possesses no such power, and that though she was negotiating with a man of full age, she was not entitled in law to propose any arrangement which could diminish the value of the ancestral estate in favour of her relatives. Lindsay, J. has referred to the case of Venkappa V/s. Fakir gowda , and I am in agreement with his view that this was an unlawful bargain for the widow to make. I am also in complete agreement with him on the other matters of argument which arose during the hearing of the case. The objection as to the legality of the conditions sought to be imposed in the adoption is, in my opinion, fatal to the claim of the plaintiffs. I would therefore allow the appeal with costs and fees on the higher scale. Sulaiman, J.