Bombay High Court
Kashibai Ramchandra Ghatge vs Tatya Genu Pawar on 10 August, 1916
Equivalent citations: (1916)18BOMLR740, 36IND. CAS.546, AIR 1916 BOMBAY 312
JUDGMENT Stanley Batchelor, Kt., Acting C.J. 1. The circumstances giving rise to this appeal are these. The plaintiff is the daughter of one Nana, who was the son of Bapurao bin Vithalrao. On Nana's death, his father Bapurao took an absolute estate in the property by survivorship. Bapurao, however, survived his son only four days. On his death, his widow Laxmibai became entitled for a widow's estate. Bapurao before his death recommended Laxmibai to adopt the Ist defendant, who is Bapurao's brother's son. At the same time there was a grand-daughter, the present plaintiff, to be provided for. Thus at one and the same time Laxmibai by two documents made the adoption of the Ist defendant, and also executed what is termed a will, devising certain property to the plaintiff. The Ist defendant did not appear at the trial of the suit, and the contesting defendants now are alienees from the Ist defendant. 2. In the Court of first instance, Mr. V.P. Raverkar, in a careful judgment decreed the plaintiff's suit. That decree was reversed on appeal to the First Class Subordinate Judge, Mr. Kanekar. But of his judgment it will be enough to say that no one before us has relied upon it, and it has appeared extremely difficult to extract from it any intelligible principle. 3. The question before us is whether the plaintiff is entitled to the property that she claims. The claim in the plaint is based upon the provisions of the will of Laxmibai. But in reality what we have to consider and determine is the effect of the two contemporaneous documents executed on the 10th June 1895 in the presence of many witnesses. It appears to me indisputable that these two documents must be read together and that, so read, they constitute a single family arrangement disposing of the properties to which they refer. Certain of those properties are specified in the instrument in the plaintiff's favour, while the others are similarly specified in the deed of adoption of the Ist defendant. In this latter deed it is made quite clear that the Ist defendant as the adopted son of Bapurao bin Vithalrao will be entitled, not to the whole property of his adoptive father, but only to that particular portion of it which is described in the document. 4. The will in favour of the plaintiff is attested by the Ist defendant, by his father, and by his brother, that brother being a qualified pleader, who was the Ist defendant's legal adviser in these transactions. It must, therefore, in my opinion, be inferred that the Ist defendant, who was then of full age, deliberately accepted this family arrangement, and that he took the advantage which the arrangement conferred upon him. That being so, it appears to me that in this appeal we are not concerned with that class of cases which consider the position when a bargain made between the adopting widow and the guardian of an adopted infant diminishes the estate which the adopted son would otherwise take. The essential fact here is that the adoptee at the time of his adoption was of full age. There appears no particular authority in which the legal position of such an adopted son is formally considered, but in Visalakshi Ammal v. Swaramien (1904) I.L.R. 27 Mad. 577, 582 Sir Subrahmania Ayyar, Offg. Chief Justice, and Mr. Justice Benson in making the reference to the Full Bench expressed the following opinion upon the point: "Except where the person given in adoption is of full age and assents to the conditions and agreements between the parties giving and receiving, a case which would be very rare, and in which such assent would preclude any question like the present being raised, the transaction would take place without any reference to the adopted son's will and consent." This expression of opinion favours the view which I am taking, that the Ist defendant having deliberately accepted the family arrangement and its advantages must now be held to it. It appears to me no answer to say that the widow Laxmibai was not empowered to bequeath her husband's property to the plaintiff, and that if she had no such power in law, she certainly did not obtain it by reason of the adoption. It must be admitted that Laxmibai had no such power. But the disposition in the plaintiff's favour seems to me to be good, not because it was a bequest by Laxmibai, but because it was part of the single family arrangement which all the parties accepted, including the Ist defendant. The ground of the plaintiff's successful claim seems to me in other words to be, not Laxmibai's will, but that of which this will is evidence, namely, the family arrangement. Mr. Rao has called our attention to the well-known decision of their Lordships of the Privy Council in which it was laid down that the mere attestation of a document must not be taken to import any concurrence in the provisions of that document. But our decision is far from infringing this pronouncement. For in this case we have, in order to prove the Ist defendant's acquiescence in the arrangement, not only the attestations of himself and his legal adviser on Laxmibai's will, but also the more eloquent fact that he was content to accept the deed of adoption, which in terms restricted the property to which he was entitled. 5. On these grounds it appears to me that the trial Court's decision is right, and that the plaintiff under the arrangement made is entitled to the property which she claims. I would, therefore, reverse the decree under appeal and restore that of the Subordinate Judge of trial with costs throughout. Shah, J.
6. I agree.