@JUDGMENTTAG-ORDER
M.N. Rao, J.@mdashThis appeal and cross-objections are from the judgment and decree in O.S. No. 2 of 1980 on the file of the Sub-Court, Bhimavaram. The plaintiff is the appellant. Claiming himself to be the adopted son of the first defendant -- Jupudi Keshava Rao -- the plaintiff asked for partition and separate possession of 1/4th share in the plaint schedule properties. The second defendant is the minor son of the plaintiff. The parties belong to Vysya community.
2. In brief, the case set up by the plaintiff was that on the request of the first defendant and his wife, Sesharatnam, his natural parents agreed to give him in adoption and from 1957 onwards, he has been living with the first defendant and his wife as their adopted son. The actual adoption took place in the presence of friends and relatives on 24-3-1962 in accordance with Hindu custom and tradition. Before the adoption, he was known as Gudivada Venkatarathnam and his name was changed to Jupudi Venkata Vijaya Bhaskar at the time of the adoption ceremony. His wife, Ammaji alias Hemasundari, the daughter of one of the brothers of the first defendant''s wife, Seshrathnam, was brought up by the first defendant after her father''s death and they performed her marriage with the plaintiff on the very same day of adoption i.e., 24-3-1962 as per Hindu custom and rites. He and the first defendant have been enjoying and paying taxes treating the plaint schedule properties as joint family properties. When Sesharathnam, the first defendant''s wife, fell ill, one Damayanthi, daughter of one of her (Sesharathnam''s) brothers came to live with them attending on the ailing Sesharathnam. After the death of Sesharathnam on 9-6-1966, the first defendant developed illicit intimacy with the said Damayanthi and unable to tolerate that, he left the family house. When he demanded the first defendant to render account in respect of the plaint schedule properties, the tatter refused and, therefore, he laid the suit. The suit was instituted originally in the Court of the Subordinate Judge, Narasapur as O.S. No. 36 of 1969 and later, on transfer to the Sub-Court Bhimavaram, it was numbered as O.S. No. 2 of 1980.
3. Resisting the suit, the first defendant admitted in the written statement that the plaintiff was fostered by him and his wife.but the proposed adoption did not take place on 24-3-1962 and the same was cancelled one day before that on the advice of astrologers. Alternatively, he pleaded that even if the adoption was true, it was invalid since by the date of adoption, the plaintiff was aged more than 15 years and so, the same is hit by Section 10 of the Hindu Adoptions and Maintenance Act (for short "the Act"). He admitted having fostered Ammaji alias Hemasundari and getting her married subsequently to the plaintiff. He pleaded specifically that as there was a petition for maintenance filed by a woman by name Puvvala Vajram, with whom he had extramarital relations prior to 1941, and apprehending that she might file a suit for maintenance and obtain a charge on the properties, he executed a nominal settlement deed on 16-5-1941, (Ex. B-48) in favour of his wife --Jupudi Sesharathnam -- and the said document was never intended to be acted upon nor was it ever acted upon. His wife, Sesharathnam, never had any rights in respect of the properties covered by the settlement deed and whenever required, he used to sell the properties and his wife, Sesharathnam, used to execute documents but the consideration always was received by him. However, in order to clear the cloud over his title, he got his wife, Sesharathnam, executed three settlement deeds -- Exs. B-24 Dt. 18-12-1952, Ex. B-46, dt. 17-11-1956 and Ex. B-44 dt. 12-9-1957 -- in his favour. Even if the settlement deed, Ex. B-48, is held to be valid and binding, by virtue of the three settlement deeds, the properties became his separate and self-acquired properties. One important plea raised by him is that at the time of contemplation of adoption of the plaintiff, an ante-adoption agreement, Ex. B-16 was executed on 14-3-1962, "whereunder, the plaintiff agreed not to claim any share in the properties" set out in the schedule attached to that document''. Therefore, in respect of the properties covered by the ante-adoption agreement, Ex. B-16, the plaintiff had no manner of right or claim. The plaintiff, he alleged, in consultation with the auditor, was submitting the Income Tax and wealth tax returns as if they constituted Hindu undivided properties and that was done with a view to obtaining higher exemption benefit. He signed the tax returns without going through them or understanding their legal import. Even otherwise, the properties were held by him as sole surviving coparcener and, therefore, they were subjected to tax as Hindu undivided family income. Emphatically denying the allegation that he developed illicit intimacy with Damayanthi, he asserted that he married her on 16-2-1968 after the death of his first wife, Sesharathnam.
4. The second defendant, who is the son of the plaintiff, filed a wrilten statement supporting the stand of his father. A rejoinder was filed by the plaintiff taking the plea that the ante-adoption agreement, Ex. B-16, is a forged document.
5. On these pleadings, the learned trial Judge, framed necessary issues -- as many as 16 in number. 37 witnesses were examined and 111 documents were marked on the side of the plaintiff. On behalf of the first defendant, 22 witnesses were examined and 84 documents marked. 52 documents were got marked through witnesses and 28 documents through the Court. The plaintiff gave evidence as P.W. 33. The first defendant figured as D.W.21. Sri Kashyap, the handwriting expert, who examined the disputed signatures of the plaintiff on Ex. B-16, ante-adoption agreement, gave evidence as D.W. 22. D.W. I was the scribe of Ex. B-16 and D.Ws. 2 and 10 were the attestors. D.W. 2 also is the father of Damayanthi, the second wife of the first defendant -- Keshava Rao.
6. On the question-of adoption, the learned Judge recorded a finding that the adoption of the plaintiff on 24-3-1962 by the first defendant and his wife, Sesharathnam, was true, valid and binding. The plea raised by the first defendant that as the plaintiff was aged more than 15 years at the time of adoption, he was not eligible to be taken in adoption by virtue of the prohibition contained in Section 10(iv) of the Act was rejected in view of the evidence that in the Vysya community, there has been a custom allowing adoption of boys above the age of 15 years. Ex. B-16, the ante-adoption agreement dated 14-3-1962, was held to be true, valid and binding on Ihe plaintiff. The learned Judge accepted the evidence of the handwriting expert, D.W. 22, and the evidence of the scribe and the attestors, D.Ws. I, 2 and 10 respectively, on the question of the genuineness of the ante-adoption agreement. As regards its validity, he rejected the contention that the document was hit by Section 17 of the Act. The recitals of the document, according to the learned Judge, do not indicate that the plaintiff had received or agreed to receive anything in consideration of the adoption. The contention that as the plaintiff had given up his rights under the document, Ex. B-16, it was not admissible in evidence for want of registration, did not find favour with the learned Judge -- the reason being that the plaintiff did not have any right in respect of the properties covered by Ex. B-16, Sesharathnam, the first wife of defendant No. 1, had executed two wills -- Ex. B-17 dated 13-12-1952 and Ex. A-30 dated 4-8-1965 --and the latter will did not revoke the earlier will. The properties covered by Ex. B-17 were bequeathed by Sesharathnam in favour of her husband, the first defendant, and the properties covered by Ex. A-30, in favour ,oMhe plaintiff. And so, both the wills -- Ex: B-17 and A-30 -- were held to be valid. On the issue as to whether the suit properties were ever treated as joint family properties, by the plaintiff and the first defendant, the learned Judge held against the plaintiff taking the view that the filing of Income Tax returns showing the properties as joint family properties for the purpose of getting some advantage under the law relating to income tax could not be evidence of an unequivocal intention on the part of the assesses to waive his interest in the self-acquired property. Dealing with the issue as to whether the suit properties were available for partition, the learned Judge expressed the opinion that the first defendant -- Jupudi Keshava Rao -- after the death of his father, became the sole surviving coparcener of the joint family and the plaintiff, by virtue of Section 12(c) of the Act, could not divest the first defendant of the properties which were already vested in him before the adoption. In view of the two findings that the ante-adoption agreement, Ex. B-16 is true, valid and binding and that the first defendant, as the sole surviving coparcener, had full authority to deal with the plaint schedule properties by virtue of Section 12(c) of the Act, the learned Judge dismissed the suit.
7. The first defendant preferred cross-objections in respect of the findings of the trial Judge which are adverse to him viz.., the validity of the adoption, the binding nature''of settlement deed, Ex. B-48 dated 16-5-1941, executed by him in favour of his first wife, Sesharathnam, and the settlement deeds, Exs. A-42 and A-19, under which Sesharathnam settled certain properties in favour of the plaintiff and Exs. B-49 and B-50 whereby some properties were settled by Sesharathnam on Ammaji, the wife of the plaintiff. The first defendant executed a will on 30th August, 1986 bequeathing all his properties in favour of his. second wife -- Damayanthi. During the pendency of the appeal, the first defendant died on 11-12-1989 and his second wife, Damayanthi, came on record as his legal representative and arrayed as third respondent in the appeal. The plaintiff also filed an application to be shown as the legal representative of the first defendant and that was ordered by this Court on 5-2-1990.
8. Before taking up the main appeal, we arc inclined to dispose of the cross-objections. In view of the voluminosity of the evidence regarding the adoption and the surrounding circumstances relating to the execution of the settlement deeds by Sesharathnam, the first wife of the first defendant in "favour of the plaintiff and his wife, Sri P. Ramchandra Reddy, learned counsel for the cross-objec- tor, has fairly conceded that it is difficult, for him to challenge the findings recorded by the learned trial Judge. The cross-objections are accordingly dismissed.
9. The arguments advanced by both sides are confined to (i) the right of the first defendant to deal with the plaint schedule properties as his self-acquired properties on the/ground that his rights as the sole surviving coparcener after the death of his father remained unaffected even after the adoption of .the plaintiff on 24-3-1962 by virtue of Section 12(c) of the Act; and (ii) the truth and validity of the ante-adoption agreement, Ex. B-16. No other point was urged.
10. Gangaiah, the father of the first defendant, died in 1932. The adoption of the plaintiff was on 24-3-1962. After the death of his father, Gangaiah, it is undeniable that the first defendant became the sole surviving coparcener and continued to be so till the date of the plaintiffs adoption. What are the effects of a valid adoption are dealt with by Section 12 of the Act. The main provision lays down that for all purposes, an adopted child shall be deemed to be the child of his adoptive parents with effect from the date of adoption and all his ties with the family of his birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. Three exceptions to this are engrafted in provisos (a), (b) and (c). We are concerned with proviso (c), which reads:
"The adopted child shall not divest any person of any estate which vested in him or her before the adoption."
Relying-upon a decision of this Court in Narra Hanumantha Rao v. Narra Hanu-mayya 1964 (1) AWR 156, the learned trial Judge ruled that the absolute right of the first defendant in respect of the plaint schedule properties as the sole surviving coparcener remained unaffected even after the adoption of the plaintiff because of the operation of Section 12(c) of the Act. This view is plainly incorrect. The aforesaid decision of this Court was overruled by the Supreme Court in
"...............the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously. Under the Shastric law, if a child was adopted by a widow, he was treated as a natural born child and, consequently, he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the proviso to Section 12 and Section 13 of the Act were incorporated. In that respect, the rights of the adopted child were restricted".
D. S. Agalawe (supra) now clearly lays down the rule that there is no difference in the matter of enjoyment of property rights between a natural born son and an adopted son. While referring to the above extracted observations in Sawan Ram (supra), it was held by Venkataramaiah, J. (as he then was) in D.S. Agalawe:
"............these observations were not necessary for deciding the case which was before the Court. They have to be held obiter dicta".
The learned judge, while dealing with the specific aspect of the rights of an adopted child, expressed the opinion:
"The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenery property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the caparcenery property even though there is no legal necessity or family benefit or may even make a gift of the coparcenery property. If a son is subsequently born to or adopted by the sole suviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted".
The contrary view taken by this court was overruled by specifically observing:
"The decision of the Andhra Pradesh High Court in Narra Hanumantha Rao''s case 1964 (1) AWR 156 which takes a contrary view is not approved by us. It, therefore, stands overruled."
11. The legal position as it now stands is that i) A sole surviving coparcener can dispose of the coparcenary property as if it were his separate property as long as he remains the sole surviving coparcener but not thereafter; and ii) any alienations made before a son is born to or adopted by him remain unaffected and the same cannot be objected to or challenged by the new coparcener.
12. Judged by this legal position, it is clear that when the plaintiff was adopted by the first defendant and his wife, Seshara-thnam, on 24-3-1962, he became a coparcener and the first defendant ceased to be the sole surviving coparcener and so, the alternative plea raised by the first defendant that he still retained his erstwhile rights over the coparcenary property as the sole surviving coparcener is clearly unsustainable. On this point, we, therefore, hold against the first defendant.
13. The most crucial question for decision in this appeal concerns the truth and validity of Ex. B. 16, the ante-adoption agreement. It is admitted by both sides that the family of the first defendant was very affluent and influential owning vast properties not only in his native district of Andhra Pradesh but also in the city of Madras. It is not in controversy that the properties covered by Ex.B.16 and the plaint schedule are one and the same except four insignificant items.
14. For the appellant-plaintiff, it is argued by Sri Veerabhadrayya, learned counsel, that the signatures of the plaintiff were forged on the document, Ex,B.16, and the evidence of the scribe, D.W. 1 and attestors, D.Ws. 2 and 10, being tainted with interestedness, does not merit acceptance. Even if Ex.B. 16 is found to be true, it deserves to be ignored since it lacks legal validity: it is hit by Section 17(1) of the Act on the authority of the decision in
15. In opposition to these submissions, it is urged by Sri P. Ramchandra Reddy, learned counsel for the third respondent, the legal representative of the first defendant, that Ex.B.16, being an ante-adoption agreement, is recognised by custom as ruled by the Privy Council in
16. Jupudi Keshava Rao, the first defendant, as far back as 16-5-1941, under Ex.B.48 settlement deed, settled all his properties in favour of his first wife, Sesharathnam. We are not concerned with the validity of Ex.B.48 --whether it was a nominal one or really intended to be acted upon -- as we have dismissed the cross-objections on this. Sesharathnam executed three settlement deeds between 1952 and 1957 -- Exs. B.24 dated 18-12-1952, Ex.B.46 dated 17-11-1936 and Ex.B.44 dated 13-9-1957 -- conveying certain properties in favour of her husband, the first defendant. The plaintiff was being fostered by the first defendant and his wife, Sesharathnam for five years prior to the date of adoption and in the year 1957 itself, Sesharathnam executed two settlement deeds conveying considerable immovable properties -- above which we shall refer later --under Exs.A.42 dated 10-9-1957 and A.19 dated 12-9-1957 in favour of the plaintiff. Ammaji, the wife of the plaintiff was brought into the family fold even when she was a small girl of 7 years and in her favour, two settlement deeds were executed in 1957 by Sesharathnam conveying, with absolute rights, vast extents of immovable property Exs. B.19 dated 31-7-1957 and B.50 dated 15-8-1957. Sesharathnam executed two wills -- Ex. B.17 dated 30-12-1952 bequeathing certain properties in favour of her husband, the first defendant and another will Ex.A.30 dated 4-8-1965 (Ex.B.30 and Ex.A.30 are one and the same) whereby she bequeathed vast immovable properties in favour of the plaintiff and his children. As the disposition under Ex.B. 17 was not revoked by the latter will -- Ex.A.30 -- the learned trialjudge held both of them valid and on this aspect, the cross-objections preferred by the first defendant were not pressed. It is thus clear that the properties covered by Ex.B.16, the ante-adoption agreement, in respect of which the plaintiff had undertaken to give up all his rights and not to raise any future disputes, are those which the first defendant got from his wife - -Sesharathnam.
17. Ex.B. 16, the ante-adoption agreement, was executed on 14th March, 1962. It is in Telugu. Neither side has filed its English translation. The plaintiff and the first defendant are the signatories to Ex.B.16, which runs into 7 pages and contains seven sets of their signatures, it clearly mentions that it is an ante-adoption agreement executed before the adoption of the plaintiff. In the preamble part, it is recited that as the first defendant has no children, he and his wife, Sesharathnam; had brought the plaintiff with the consent of his parents five years prior to that date and have been fostering him with an intention to take him in adoption. On the second page of the document (Ex. B.I6), it is mentioned that Sesharathnam, at the instance of the first defendant, had settled more than Ac. 39-00 of land and some other properties with absolute rights in favour of the plaintiff under two settlement deeds dated 10-9-1957 (Ex.A.42) and 12-9-1957 (Ex. A.19). It also recites likewise that Sesharathnam, at the instance of her husband, the first defendant, had already conveyed -- with absolute rights -- an extent of Ac.60-00 of land and some other properties in favour of Ammaji alias Hemasundari (the wife of the plaintiff) under two settlement deeds dated 31-7-1957 (Ex. B.49) and 15-8-1957 (Ex. B.50). It further says that it was already agreed upon by the first defendant and his wife Sesharathnam and their relations that Ammaji should be married, to the plaintiff. One of the significant recitals in Ex.B.16 is that the natural parents of the plaintiff had very little property and so with a view to enriching him, the first defendant was instrumental in the execution of the four settlement deeds under which vast extents of immovable property was conveyed to the plaintiff and Ammaji. In view of the advantages secured to him, it is recited in Ex.B. 16, the plaintiff agreed for the terms incorporated therein for his adoption by the first defendant and his wife. The recitals show that the plaintiff agreed -- in respect of the properties shown in the schedule to the ante-adoption agreement, Ex.B.16 -- not to advance any claims or raise any disputes in regard there to and that in respect of that property, the first defendant shall have absolute rights without any limitations and that the plaintiff shall have no manner of right or interest. In regard to the rest of the properties, the document (Ex.B. 16) says thai the plaintiff will have, subsequent to the adoption, some rights as an aurasa son. One more significant recital in the document is that the natural parents of the plaintiff, keeping in view his welfare and after consulting their relations, whole-heartedly agreed for this arrangement. The concluding part of the document says that'' it was arranged that a regular release deed would be executed in due course by the plaintiff.
18. The schedule to Ex. B. 16 mentions eight items of property: Item No. 1 is a rice mill -- Raja Rajeswari Rice Mill -- within the limits of Bhimavaram Municipality. Item No. 2 is a tobacco shop bearing Dr. No, 147 in Govindapu Naik Street, Madras. Item No. 3 is Maruthi Cinema hall in Bhimavaram town. Item No. 4 is a rice mill in Bhimavaram town. Item No. 5 is a terraced house bearing Dr. No. 8/3247 in Bhimavaram town. Item No. 6 is land admeasuring Ac.30-50Y2 cents in Narasimhapuram of Bhimavaram taluq. Item No. 7 is Ac. 1.62 cents of land in Yenamaduru village of Bhimavaram sub-division. Item No. 8 comprises two extents of land admeasuring Ac. 7-01 and Ac. 6.55 cents in two villages of Bhimavaram taluq.
18A. As against these properties covered by Ex.B.16, in respect of which the plaintiff had given up his rights before his adoption, we may notice the properties the plaintiff and his wife got from late Sesharathnarn at the instance of the first defendant as recited in Ex.B. 16. The total extent of land the plaintiff got under Exs. A.42 and A.19 from Sesharathnarn is Ac. 37-10 cents (Ac. 31-10 cents Under Ex.A.42 and Ac.6-00 under Ex.A.19). His wife, Ammaji, got under Ex.B.49 from Sesharathnarn Ac.27-54 cents and a vast extent of house site admeasuring 9,656 sq. yards and under Ex.B.50, Ac. 30-00 of land and a house-site admeasuring 578 sq. yards in Bhimavaram town. Thus, even before their marriage, the plaintiff and his wife became absolute owners in an extent of Ac.94.64 cents of agricultural land and house-sites admeasuring 10,234 sq. yards in the Municipal town of Bhimavaram. Apart from these properties, which the plaintiff and his wife got from Sesharathnam at the instance of the first defendant, the plaintiff also got Ac. 29.93 cents of land as bequesl under the will Ex. A.30 dated 4-8-1965 executed by Sesharathnam. In addition to this Ac.29.93 cents under Ex.A.30, the plaintiff also was given a terraced building with appurtenant site admeasuring Ac.0-10 cents in Ward No. 5 of Bhimavaram town and also Ac.0-03 cents of house-site in Ward No. 7. In addition to these bequests to the plaintiff under Ex.A.30, Sesharathnam also had bequeathed under Ex.A.30, in favour of the children of the plaintiff, agricultural land in Bhimavaram taluq admeasuring Ac.31-25 cents, 5 shop rooms, 8 paddy godowns and dry land admeasuring Ac. 10-00. Besides these, the plaintiff''s children also got under Ex.A.30, vast extent of land admeasuring Ac.1-00 useful for house sites.
19. A mere comparison of properties covered by Ex.B. 16 with the properties secured by the plaintiff, his wife and their children would show that the first defendant and his wife had been more than generous towards the plaintiff and his family. Looked at from this point of view, we find it impossible to agree with the comment of Sri Veerabha-drayya, learned counsel for the appellant, that if Ex.B.16 properties are excluded, nothing was left for the plaintiff.
20. The plaintiff was a major aged 19 years when the ante-adoption agreement, Ex.B.16 was executed. The document is in seven pages and the plaintiff denied all his seven signatures alleging that they were forged . In the plaint, there was no reference to the ante-adoption agreement but it was only when the first defendant, in his written statement, relied upon this document, the plea of forgery was taken by the plaintiff in the rejoinder. In his chief examination, as P.W. 33, the plaintiff did not say anything about Ex.B.16. In the cross-examination, he said that he did not remember to have filed any rejoinder (it was actually filed) and he denied his signatures in Ex.B.16. D.W. 22 is the hand-writing expert and his testimony is to the effect that the disputed signatures of the plaintiff marked as Exs. D.I to D.7 in Ex.B. 16 are genuine. The specimen signatures of the plaintiff marked as S. 8 to S. 16, in the opinion of the hand-writing expert, are disguised and distorted. Several cogent reasons he has given for the conclusion reached by him. Although, it is open to the Court to reject the testimony of a hand-writing expert, no single facet of his evidence has been shown 16 have been afflicted with any infirmity warranting rejection.
21. The direct evidence consists of the testimony of D.W.I, the scribe and D.Ws.2 and 10, the attestors of Ex.B. 16 besides that of D.W.21, the first defendant. D.W.I, the scribe, at the relevant time, was working as a clerk in the office of Sri G. Venkaiah Naidu, a leading advocate of Bhimavaram. His evidence is that in the house of the first defendant, on 14-3-1962, Ex.B.16 was prepared. The draft was dictated to him by the advocate -- late Venkaiah Naidu -- and after he read over the draft and the same was agreed to by the first defendant and the plaintiff, he prepared two fair copies and when he read out the same, both the first defendant and the plaintiff agreed. On both the fair copies, the first defendant and the plaintiff signed and the documents were attested by D.W.2 --Mamidi Krishna Murthy and D.W.10 --Madunuri Venkata Rama Raju -- in his presence after the first defendant and the plaintiff signed on both the fair copies. In the cross-examination, nothing was elicited to doubt the credibility of the version given by him. He denied the suggestion that Ex.B.16 was forged. D.W.2 is the father of Dama-yanthi, the second wife of the first defendant. By the date of his evidence, i.e., 7-12-1976, his daughter, Damayanthi, was the second wife of the first defendant. Sesharathnam, the first wife of the first defendant, was one of his sisters. He testified that the first defendant and the plaintiff signed the document, Ex.B.16, in his presence on all the pages and thereafter, he attested. His testimony corroborates the version of D.W.I, the scribe. In the cross-examination, he said that in his presence, the plaintiff informed late Sri Venkaiah Naidu, the advocate, that he (the plaintiff) was going in adoption voluntarily and he would not claim any properties. He also said that when the advocate dictated the rough draft, no documents were referred to but the advocate had some points noted on a paper. His evidence does not suffer from any infirmity. The fact that he is a close relation of the first defendant is no ground to reject his testimony. D.W.10, the other attestor, was the Manager of Maruthi talkies, owned by the - first defendant. In his presence, he said, the first defendant and Sesharathnam, (the first defendant''s wife) had talked about the ante-adoption agreement and they felt that the agreement must be executed. He denied the suggestion that Ex.B. 16 was forged. Although when D.W.10 attested the document, Ex.B.16, he was an employee of the first defendant, he ceased to be so by the date of his evidence. In our view, no interestedness could be attributed to D.W.10.
22. It was commented by Sri Veerabha-drayya that when Ex.B.16 was executed, the natural parents of the plaintiff were not present and this circumstance wouid go to show that it was not a genuine document. We are not inclined to agree. By the date of Ex.B. 16, the plaintiff was a major. More than five years prior to that, he has been staying with the first defendant''s family as his foster son. By that date, vast immovable properties were already settled in his favour and in favour of his would be wife -- Ammaji -- by Sesharathnam, the wife of the first defendant, about which there are specific recitals in Ex.B.16. Ex.B. 16 also recites that the natural parents of the plaintiff had agreed for the execution of that document, which impresses us as very natural having regard to the advantages conferred on the plaintiff by the first defendant and his wife by the date of Ex.B.16. One more aspect which we would like to mention in this context is that there is a reference in the evidence of P.W. 28, the natural mother of the plaintiff, about the execution of some adoption deed, which obviously is referable to Ex.B. 16. The learned trial judge has adverted to this aspect in his judgment as one of the circumstances to draw the inference about the genuineness of Ex.B. 16 and we do not find any good reason to take a different view. At seven places, the disputed signatures of the plaintiff are found in Ex.B. 16. Had it been a forged document, it would not comprise seven pages with seven sets of signatures. This is yet another circumstance, as rightly pointed out by the learned trial judge, in favour of the conclusion that the document is a genuine one.
23. Coming to the question of the validity of Ex. B. 16, the first contention urged for the appellant is that the document is hit by S. 17(1) of the Act, which is in the following terms:
"17(1). No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person and no person shall make or give or agree to make or give to any other person, any payment or reward, the receipt of which is prohibited by this section."
Contravention of sub-section (1) is made a penal offence punishable with imprisonment extending up to six months or with fine or with both by sub-section (2). The recitals in Ex.B.16 do not show that any payment was made or agreed to be made in regard to the adoption of the plaintiff. The first defendant could not be said to be a recipient of any payment or reward in consideration of the adoption of the plaintiff. The will of the legislature to prevent trafficking in children is reflected in S. 17. It is not intended to cover cases of the present type where a major had agreed, after receiving considerable properties from the family into which he was to be taken in adoption, not so set up any claims with regard to certain items of the property belonging to the adoptive family.
24. The decision of this Court in Commissioner of Gift Taxes, A.P. (supra) is of no help to the appellant. In that case, one P.V. Subbarayudu adopted his brother''s grand son -- Rajendra Prasad -- on June 14, 1963. He (Rajendra Prasad) was by then aged 22 years. On 20th July, 1963, Subbarayudu executed a registered deed of adoption. On the same day, by another deed styled as settlement deed executed by him in favour of his adopted son, he settled certain properties which were his self acquired, upon his adopted son. Prior to the date of adoption on II June, 1963, he executed a gift deed in favour of his daughter, Shantamma, whereby he gave some lands to her and on the same day, by another deed, some other lands he gave in favour of his grand-daughter. Three gift deeds he executed on 11 -6-1963 -- one in favour of his daughter, another in favour of his daughter''s daughter and the third in favour of his great grand-son, who was then a minor. On the next day, i.e., 12th June, 1963, he made a gift of an amount of Rs. 42,966/- in favour of his wife. Subbarayudu died on January 20,1965. After the death of Subbarayudu, the question arose as to whether the properties covered by the settlement deed were assessable to estate duty. The settlement deed was in the following terms:
"It has been already arranged between your natural parents and ourselves prior to the adoption, that you cannot exercise right over any other property except those that are specifically set out in the deed. If at any time you were to deal with them, then this settlement deed will not be operative and my properties are to be vested in my legal heirs. This was also agreed to by us before the adoption."
Chief Justice Obul Reddy speaking for the Division Bench, interpreting the settlement deed, observed:
"Nowhere in this deed of settlement is there any mention that there was an oral agreement between the adopted son and his adoptive father as to the manner in which the properties should be settled in the event of his being adopted. It is manifest from the above recital in the deed that the natural parents of the adopted son were parties to the agreement. The ante-adoption agreement, therefore, undoubtedly, attracts the vice of Section 17 of the Act."
The facts of the case in hand are totally different from the above one. The oral ante-adoption agreement which was the foundation for the settlement deed in the aforesaid case was concluded between the natural parents and the adoptive parents of Rajendra Prasad, as a consequence of which, certain properties were settled upon Rajendra Prasad. As the ante-adoption agreement was patently by way of consideration for adoption, the Division Bench held that it was hit by Section 17(1) of the Act. The consequence of the decision of the Division Bench in the above case was not to divest Rajendra Prasad from the properties obtained by him under the settlement deed but the consequence was to bring the same within the net of estate duty, Barring that, the decision does not appear to have adversely affected any of the rights of the settlee -- Rajendra Prasad.
25. The second contention urged for the appellant relates to the invalidity of Ex;B. 16 arising out of want of registration and absence of consideration. Under Ex.B. 16, the plaintiff did not part with any of his private properties which were already settled upon him by his would be adoptive mother --Sesharathnam -- who was already by then his foster-mother. He had no claim by the date of Ex.B.16 to any of the properties standing in the name of the first defendant since the adoption did not take place. As the status of coparcener was yet to be acquired by him, it could not be said that in respect of any of the coparcenary property, he had parted title. An ante-adoption agreement is recognised by custom. The validity of such an agreement cannot be tested on the touch-stone of the provisions of the Contract Act. We are, therefore, of the view that Ex.B. 16 does not require any registration nor is it hit by S. 25 of the Contract Act on the ground of want of consideration.
26. A controversy is raised as to whether an ante-adoption agreement is supported by custom? The decision in Krishna Murthi (supra) recognises the existence of a custom as to the practice of executing ante-adoption agreements. The custom recognised in that case was held to regulate the. right of the widow as against the adopted son. Adverting to the views prevailing by then --- i) the natural father would give the son in adoption if it were reasonable i.e., for the boy''s benefit; and ii) the adoption would put the boy in a reasonable position i.e., "not subject him to the duties of a son to do worship for his adoptive father without giving him sufficient advantage to enable him to do so" -- Lord Viscount Dunedin said in his speech :
"But the consensus of judgments seems to solve these two questions in this way, namely, that the consent of the natural father shows that it is for the advantage of the boy, and that the mere postponement of his interest to the widow''s interest, even though it should be one extending to a life interest in the whole property, is not incompatible with his position as a son. Their Lordships are, therefore, prepared to hold that custom sanctions such arrangements".
27. In
"But it seems to me that where a major is adopted he has an election whether he will be adopted or not. No doubt, he is given in adoption by his natural father if he has one, and, if he has not, then by his mother. But obviously, if he is a sui juris, he is entitled to say that he refuses to be given in adoption. If he agrees to be given in adoption and at the same time agrees that on that event happening, he will carry out certain agreements as to the property which he will acquire on adoption, I cannot see why he should be at liberty to accept the adoption and disregard the agreement. I know of no principle in Hindu or English law which enables that to be done and 1 do not think that their Lordships of the Privy Council intended to hold that such a thing was legal."
Broomfield, J., who agreed with the learned Chief Justice, in his separate opinion, said :
"I am unable to see how an adult person who is given in adoption can be said to have no election. He can presumably elect that he will not go in adoption at all if the conditions are not satisfactory to him".
Both the learned judges, in coming to these conclusions, had relied upon an earlier decision of the Bombay High Court in
28. From the above precedents, the legal position clearly emerges about the custom regarding execution of ante-adoption agreements ripening into a principle of law. Was the position, in any manner, changed after the enactment of the Act? Sri Veerabhadrayya says that in view of the provisions contained in Section 4 of the Act, there is no justification warranting an inference about the existence of any such custom. Section 4 of the Act reads:
"4. Overriding effect of Act -- Save as otherwise expressly provided in this Act,--
a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
There is no provision in the Act, barring Section 17, about which we have already discussed, dealing with ante-adoption agreements. Clause (a), therefore, has no application. The law in force before the Act came into force permitting ante-adoption agreements concluded by a major at the time of his adoption cannot be said to be inconsistent with any of the provisions of the Act and, therefore, clause (b), in our view, is not attracted. No general proposition can be stated that after the codification of the law relating to adoptions and maintenance, the earlier customary law has ceased to be in operation. The overriding effect of the Act is confined to what is indicated in S. 4. In other respects, customary law still holds the field. As an instance of legislative recognition of custom and usage, we may cite Section 10, under which certain categories of persons arc ineligible for adoption unless custom or usage allows such adoption. We, therefore, hold that the validity of Ex.B. 16 is not affected by S.4 of the Act. The plaintiff, as a signatory to Ex.B. 16, is bound by its terms -- not to claim any share or raise a dispute in respect of the properties covered by it. The validity of the document does not depend upon the execution of a further regular release deed by the plaintiff. His not having done so, therefore, cannot be a ground to declare it invalid.
29. The last contention urged by Sri Veerabhadrayya is based upon the doctrine of Blending. The learned counsel says that in the Income Tax and wealth-tax returns -- Exs. A.43 to A.48 and X.50 to X.52 -- the first defendant had declared his status as "Hindu Undivided Family" and so, it was not open to the first defendant to retrace from that stand. That declaration constitutes an unequivocal intention on the part of the first defendant to treat Ex.B. 16 properties as belonging to the joint family consisting of himself, the plaintiff and the plaintiffs minor son. In support of this, reliance is placed upon the decision in
30. This contention, at first sight, although appears to be impressive, we are not inclined to accept the same after careful consideration. It is true that in the Income Tax and wealth-tax returns, the status of the first defendant was shown as "Hindu Undivided Family". Goli Eswariah (supra) is, undoubtedly, an authority for the proposition that the "separate property of a coparcener could be impressed with the character of joint family property". Hegde, J., speaking for the two-judge Bench stated the legal position thus (at page 1725):
"The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property".
The necessary pre-condition for the application of the doctrine of Blending is the existence of coparcenary property as recognised by the Supreme Court in
"As observed by this Court in
In the case on hand, there was no coparcenary property. The plaint schedule properties which are alleged to be joint family properties are nothing but the properties covered by Ex.B. 16, as admitted by both sides. The plaintiff, his wife and their children had their own separate properties got by them under certain settlement deeds and the will of Sesharathnam as already noticed. The question of the first defendant blending his separate property with, the coparcenary property therefore, did not arise. By declaring his status in the Income Tax and Wealth-tax returns as "Hindu Undivided Family", it could not be said that the first defendant had blended his private properties with that of the joint family properties. No evidence was adduced, at any rate, our attention has not been drawn to the existence of any coparcenary property other than Ex.B. 16 properties.
31. Declaration of status in the Income Tax returns is not always decisive of the real status of the individual. It is always a question of fact which must be decided taking into consideration the entire facts and surrounding circumstances as recognised by this Court in
32. For these reasons, we up-hold the validity of the ante-adoption agreement, Ex.B.16.
33. C.M.P. No. 13576 of 1993 was filed by five persons -- third parties to these proceedings -- seeking to implead themselves as respondents 4 to 9 in the main appeal and respondents 3 to 8 in the cross-objections. They claimed to have purchased item No. 53 of Schedule III to the written statement filed by the first defendant which corresponds to ''D'' schedule to Ex.A.30 dated 4-8-1965, the last will and testament executed by Sesharathnam, the wife of the first defendant. The petitioners also claimed that the properties, they have purchased, are not covered by Ex.B.48 settlement deed dated 16-5-1941 where by the first defendant had settled all his properties in the name of his wife, Sesha-rathnam. The properties in question, claimed to have been pruchased by the petitioners, are not the subject-matter of the appeal or the cross-objections and so, we are not inclined to allow the petitioners to implead themselves as parties to the present proceedings. The C.M.P., is, therefore, dismissed.
34. Our finding that Section 12(c) of the Act is not a bar to the plaintiff to ask for partition of the plaint schedule properties will not enure to the ultimate benefit of the plaintiff in view of our finding that Ex.B. 16, ante-adoption agreement is true valid and binding. The plaint schedule properties and the properties covered by Ex. B. 16 being one and the same, the plaintiff, by virtue of Ex.B.16, has no right to seek partition of the same.
35. For the foregoing reasons, the appeal and cross-objections fail and accordingly, they are dismissed. No costs.
36. Appeal dismissed.
