SHIVRAM PANDURANG PRABHU DESAI Vs. RAMKRISHNA SHIVRAM PALSULE

JUDGEMENT

(1.) On October 7, 1912, one Pandurang made a will, Exhibit 18, during his last illness in which he announced his intention of adopting the defendant-appellant and directed him to redeem the lands of the plaintiff-respondent and his mother Krishnabai, the daughter of Chewubai the sister of the testator. Chewubai, Krishnabai and the plaintiff-respondent had apparently all been living with the testator. The appellant was at the time absent in Benarea but returned soon afterwards. On October" 16, nine days after the will, he was formally adopted by the testator. The testator died a few days later.

(2.) In 1924 the respondent filed the present suit to compel the appellant to carry out the directions in the will and to redeem the mortgaged property belonging to the plaintiff-respondent. The defendant-appellant resisted the claim on three grounds: firstly, that the will was in respect of ancestral property and the testator had no power to make it; secondly, the directions therein were not mandatory but at the most recommendatory; and, thirdly, these directions were void for uncertainty. Both the lower Courts held in favour of the plaintiff-respondent and decreed the claim, directing that the plaintiff's costs of redemption should be recoverable from the appellant. The defendant appeals.

(3.) It is argued for the appellant that, according to the latest pro of their Lordships of the Privy Council in Krishna- murthi Ayyar V/s. Krishnamurthi Ayyar (1927) L.R. 54 I.A. 248 s. c. 29 Bom. L.R. 969 with the single exception of an arrangement regulating the right of an adopting widow as against an adopted son, any limitation on the power the estate of the adopted son is invalid. For the respondent, reliance is placed on Kashibai V/s. Tatya that the adoption and the will together constituted a family arrangement by which the appellant is bound. In regard to the Privy Council case cited above, it is argued that it only lays down the law where the adopted boy is a minor and not where, as here and in the Bombay case, he is a major.