Deshpande, J.:— This is plaintiff's second appeal. The plaintiff has filed this suit for declaration that he is the adopted son of the defendant and for perpetual injunction restraining the defendant permanently from selling, mortgaging, gifting or alienating the suit property. The suit-land is Survey No. 11 admeasuring 20 acres 19 gunthas situated at village Dhanora Bhogaori Tarfe Aral Taluka Bamtnagar and the house as mentioned in the plaint. The plaintiff claims to be the adopted son of the defendant under a registered Deed of Adoption as well as the Kararnama which is executed by the defendant in his favour. The Kararnama is Exhibit 61 and the registered Deed of Adoption is Exh. 58. The plaintiff avers that, according to the Kararnama Exh. 61, adoption took place after performing necessary ceremonies by the defendant and under the said Kararnama it was agreed by the defendant that she will enjoy the property belonging to her till her life-time and she also agreed that she will have no right to mortgage or sell or alienate or in any manner deal with the property in dispute.
2. The plaintiff says that the defendant executed a deed on 25th June, 1966, admitted the adoption of the plaintiff. There is an allegation in the plaint in regard to the custom. According to the plaintiff, the boy above the age of 15 years could be taken in adoption and such a custom is continued in the family. The plaintiff says that his adoption was performed by the defendant accordingly and he has acquired the status of an adopted son. He sued for declaration of adoption and perpetual injunction as stated above.
3. The defendant resisted the suit of plaintiff disputing the Kararnama Exhibit 61 and stated that the Kararnama is not binding on her. There was no necessity of any such agreement to be executed in writing. She did not admit that any such agreement was executed by her as incorporated in the said Kararnama Exhibit 61. She disputed all other contents and the alleged custom also. However, she admitted that she has executed a registered deed of adoption on 25th June, 1966 although she stated that no religious ceremonies were performed and, therefore, no adoption has actually taken place in pursuance of the deed. The defendant disputed that the alleged Kararnama is on the simple paper and unless the stamp duty is paid it is not admissible in evidence. The defendant disputed that the plaintiff cannot be the adopted son as she has not taken him in adoption and she disputed the contents regarding the adoption in presence of the witnesses.
4. On the basts of these pleadings, the learned trial Judge framed the following issues:—
“(1) Does plaintiff prove that on 6th May 1966 defendant has adopted him?
(1A) Does plaintiff prove that there is a custom or usage in Brahmin community of giving and taking of a boy above the age of 15 years in adoption?
(2) Does he further prove that at the time of adoption, defendant had executed a Kararnama agreeing that she will not transfer her property in any way?
(2-A) Whether adoption deed dated 6th May 1966 is admissible in evidence without registration?
(3) Whether plaintiff is entitled for the relief sought?”
5. The learned trial Judge after, examining the record and discussing the evidence found that the alleged Kararnama (Exh. 61) is executed by the defendant. He also held that the custom alleged by the plaintiff is proved in accordance with his finding on Issue No. 1A. He, therefore, granted the decree in favour of the plaintiff declaring that he is the adopted son of the defendant. He also consistent with this finding made a decree for perpetual injunction restraining the defendant permanently from mortgaging, alienating or gifting the suit property creating encumbrances on the property. This decree was passed on March 27, 1978.
6. The learned trial Judge also found that the Kararnama was not on a stamp paper and stamp penalty is paid, the document was accepted. This document was treated by the learned trial Judge as the adoption deed and he held that this adoption deed is admissible in evidence without registration. So he answered Issue No. 2-A in favour of the plaintiff.
7. It may be mentioned here that the learned trial Judge made a finding in para 8 that the ceremony of adoption was performed and he disbelieved the say of the defendant disputing the same. He relied on the evidence led by the plaintiff as discussed by him in para 8 of his judgment. He also noticed the details of adoption ceremony.
8. In para 12 of his judgment the trial Judge made a reference to the adoption deed which is exhibited as Exhibit 58. This adoption deed was discussed by the learned trial Judge and he held that the adoption deed was governed be the Hindu Adoptions and Maintenance Act and registered deed was also held to be admissible in evidence. On the basis of these findings the learned trial Judge made a decree in favour of the plaintiff as stated above.
9. This decree was challenged by the defendant-adoptive mother in the District Court, Parbhani,. The learned Assistant Judge who heard the appeal raised the following points for determination:—
“(1) Whether respondent-plaintiff has proved that there is a custom or usage applicable to the parties to the adoption in question permitting persons who have completed the age of 15 years being taken in adoption?
(2) Whether the adoption of the plaintiff/respondent is valid?
(3) Whether the respondent/plaintiff has proved that appellant/defendants has executed the document dated 6th May, 1966 Exh. 61?
(4) Whether the said document Exhibit 61, is inadmissible in evidence for want of registration?
(5) Whether the respondent/plaintiff is entitled to the relief of declaration and injunction as sought by him?”
10. The learned Assistant Judge disagreed on the point of validity of adoption and the alleged custom having been proved by the plaintiff. He had discussed this question in detail and he held that the adoption was invalid and there is no such custom and relying on some judgments of this Court to which I need not make any reference, he held that the plaintiff has failed to prove the custom and adoption.
11. In this Court, the learned Counsel for the appellant-plaintiff first of all contended that this finding of the learned Assistant Judge cannot be sustained in view of the admission of the defendant herself that such a custom was prevalent and a boy above the age of 15 years could be taken in adoption. He relied on the Full Bench decision of this Court in 1(Anirudh Jagdeorao v. Babarao Irbaji), A.I.R 1983 Bombay 391. The question before the Full Bench was whether the words ‘custom’ or ‘usage’ occurring in section 10(iii) and section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, read along with section 3(a) of the said Act includes within its sweep the rules of the Bombay School of Hindu Law (Mayukha) or interpretation of the text thereof by the Courts. The Full Bench concluded the controversy on this point that the adoption on the basis of such custom especially when it is alleged and proved is valid. The Full Bench observed as follows: (p. 396)
“The custom or rule of Hindu law prevailing in these territories permitting adoption of males over the age of 15 years is expressly saved by section 10(iv).”
12. In this particular case at least, custom is supported by the admission of the defendant herself in her written statement in para 12. In view of this clear position it is not possible to sustain the finding of the learned Assistant Judge that the adoption is invalid and the custom is not proved.
13. I, therefore, disagreeing with the learned Assistant Judge reverse his finding on the point of adoption and hold agreeing with the learned trial Judge that the plaintiff has proved his adoption in accordance with law and on facts he has been able to give evidence of a prevalent custom also. The adoption is, therefore, held to be valid. So this issue does not survive for further discussion.
14. The main contest in this appeal centres around the efficacy of Exhibit 61 which is the Kararnama executed by the defendant. The learned Counsel for the appellant contended that the findings of the learned Assistant Judge on this point holding that the Kararnama is not proved to have been executed by the defendant is not correct. He challenged the finding on the ground that the approach of the learned Assistant Judge in disputing the contents of this Kararnama is contrary to the evidence led by the plaintiff. The plaintiff has examined necessary witnesses in regard to this Kararnama and execution of this Kararnama was duly proved by the witnesses of the plaintiff. The plaintiff himself has given evidence and the Kararnama which is on the simple paper was sought to be proved by the evidence of other witnesses of the Kararnama. The learned Assistant Judge has discussed the evidence in regard to Kararnama in para 28 of his judgment. He held that the evidence of Ambadasrao who was an advocate is contradicted by other witnesses. From his evidence he inferred that at the material time the other witnesses must not have been present at the time of execution of the Kararnama. Therefore, he did not accept the evidence of witnesses of the plaintiff. He also found some discrepancy in regard to the draft being prepared. So he held that the circumstances which are disclosed by the evidence of Ambadasrao and Laxman Salunke create a doubt about the execution of the document Exh. 61 at the instance of the defendant. He also further doubted the genuineness of Exhibit 61 on the ground that this document was not produced by the plaintiff before 9th June, 1975, before the filing of the suit. It is this finding which has been challenged by the learned Counsel for the appellant-plaintiff in this case.
15. The learned Counsel for the appellant has read out the evidence of the witnesses and contended that the evidence of these witnesses especially of the scribe Tukaram who had read out and written the document clearly shows that the document was written by him and the witnesses who were present have signed the same. The evidence of this witness is that the defendant has affixed her thumb impression on the document and he has also signed as an attesting witness. Exhibit 63 Vasant is one of the witnesses who has deposed to this fact also. In order that execution of a document may be proved what is required under section 67 of the Evidence Act is that the author of the document must be examined and the witnesses who have seen the executant signing the document must depose that they have seen the executant signing the document. The proof of execution is based on the fact that the document is completed. It is one of the last series of the acts performed by the executant. It can be defined as a formal completion of the document. The execution of the deed is complete either by signing which includes some thumb marks or even consent by a party executing to someone else on his behalf to mark the document or sign it on his behalf. The instrument in such a case is normally completed. The execution consists of signing the documents and also if it is written, to be lead out to the concerned executant. The words ‘to be executed’ itself mean to come into existence’. Especially the scribe and the other witnesses have come and deposed to this fact before the Court According to the Ordinary presumption which applies to the witnesses their statements in regard to the execution must be taken to be truthful. There are large number of witnesses who were examined in this case and unless a conspiracy is attributed to these witnesses it is not possible to displace the finding recorded by the learned trial Judge in regard to the adoption which is a correct finding based on evidence.
16. The learned Counsel for the defendant strongly urged before me that this document was not produced at any time and it is on a simple paper and the defendant was not informed of the contents of this document. A very vital circumstance which is important in this connection is that the defendant herself was residing in the house of Ambadasrao who is the senior advocate. The other witnesses of the document are also respectable persons from the village. They have given evidence before the Court and their evidence has not been shaken in cross-examination to destroy their presence. The document is executed on 6th May, 1966. The witnesses deposed before the trial Court after a lapse of ten years. Even some discrepancies are found they will have to be ignored on the ground that it is quite natural that the lapse of memory is quite, inherent in such Cases. The document it is said, was read out to the defendant. If the document is written by the scribe at the instance of the defendant and the witnesses have stated that they have seen the defendant putting her thumb impression on the document and the witnesses have also signed the document, the execution is completely proved. The finding recorded by the learned Assistant Judge in this regard suffers from basic infirmity that he has not cared to look into the provisions of section 67 of the Evidence Act which deal with the execution and proof of the document. When a document bears a thumb mark as it is in this case, it is not necessary to prove the identity. What is necessary in such cases is the identity of the witnesses stating that this is the same document on which they have signed. In my judgment, this is the document executed by the defendant and it has been duly proved by the evidence of the plaintiff and his witnesses and agreeing with the learned trial Judge. I do not think that there is any infirmity in regard to the execution of this document that the defendant was not informed of its contents. The discussion of the learned trial Judge in this regard is more satisfactory because the plaintiff himself has identified his signature. The document was written one and it is in Marathi and it cannot be said that it is highly improbable that the contents could not have been understood by the defendant while executing the same. It is true that there is cross-examination of Ambadasrao advocate on this point and he has been declared hostile and this fact is very much emphasised by the learned Counsel for the defendant. However, his evidence also establishes that the document was executed and the defendant was a party to it. The learned trial Judge has indicated that the evidence of Ambadas (P.W 8) in respect of the document is worth acceptable. In fact he held that this witness was not able to tell the truth, although he identified the signature on the document which he has written. This statement is voluntary one. However, there is evidence of the scribe. There is evidence of other attesting witnesses especially of Vasant and Laxman Solunke. It is clear that the ceremonies have been performed and the execution of document is duly proved. In my judgment, therefore, the view of the learned Assistant Judge on oral evidence was vitiated because of two features which escaped notice of the learned Assistant Judge and they are that he ought to have remembered that the document was executed in 1966 and after a lapse of ten years, there are bound to be discrepancies in the evidence of the witnesses and failure of memory seems to be natural in such cases. This principle is to be borne in mind while appreciating the evidence. The witnesses cannot be said to be liers in a case where more than four to five witnesses have come forward and deposed. The probability of truth of their depositions cannot be displaced merely on the ground that there are discrepancies. The only one ground on which their evidence can be left out of consideration and that is that they have conspired themselves and manipulated the evidence against the defendant. In the absence of any such suggestion it is not possible to disapprove the evidence given by them. The finding of the learned Assistant Judge, therefore, on this part of the case relating to the execution and proof of Exhibit 61 is set-aside and I reverse the said finding. I am conscious that I am hearing the second appeal but this Court under section 103 of the Civil Procedure Code is entitled to consider the evidence which has not been considered by the Appellate Court in the proper light and circumstances of the case. I, therefore, dis-agreeing with the learned Assistant Judge held that the execution of Exhibit 61 is proved and the defendant has executed that document. The evidence given by the plaintiff and his witnesses is quite sufficient to hold that the document has been executed and its execution is proved and there is no infirmity in regard to the proof and execution of this document.
17. Now the sole question for determination in this appeal remains in regard to the term which is mentioned in this document. The plaintiff in this case wants this Court to grant him perpetual injunction restraining the defendant on the ground that she has agreed in this document that she will have no right to alienate, mortgage, gift or sale the property. The relevant words in this document Exhibit 61 which are important for the decision of this case are as follows:—
18. The English translation is that according to Hindu Law, religious ceremonies were performed today. Now Hanumanta (plaintiff) should put the name of Ramrao as his father. Hanumanta will be the Aurasputra He will have rights like Aurasputra. Till my death my immoveable and moveable property will be in my enjoyment and I myself till my death will enjoy the same. I will have no right to mortgage or sale the immoveable property Son Hanumanta should maintain her like Aurasputra and so this adoption I have written with my Will, voluntary Will and pleasure and it is true.
19. The learned Counsel for the appellant contended that the stipulation in this deed constitutes an agreement which is contrary to section 13 of the Hindu Adoptions and Maintenance Act (“Act of 1956” for short) and subject to that agreement the rights of the adoptive mother are quite absolute in regard to the property of immoveable as well as moveable. It was contended by the learned Counsel for the appellant that such a binding stipulation not to mortgage or sale the immoveable property amounts to a stipulation and agreement which is a restrain on her right to dispose of the property. This term involves a curtailment of the right of disposal which a true owner has got. Such a curtailment of the right is permissible in law. It is a stipulation of negative character. The plaintiff in fact is entitled to rely on this stipulation which is incorporated in the adoption deed by the defendant saying that she will have no right to mortgage or sale the immoveable property belonging to her. It was, therefore, contended that on the basis of this agreement which is incorporated in the adoption deed itself it is possible to infer that the defendant while admitting the adoption also accepted that she will not deal with the property and this restraint which she has put on her own power of disposal of the property is the foundation for claiming the relief of perpetual injunction.
20. Section 13 of the Act of 1956 is as follows:
“13. Flight of adoptive parents to dispose of their properties:—
Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or the mother of the power to dispose of his or her property by transfer inter vivos or by Will.”
21. The main provision of this section contemplates that the power of disposal over the property belonging to the adoptive mother or father is absolute. Unless there is an agreement to the contrary effect, the adoption by itself does not operate as a deprivation of the power of disposal vested in the adoptive mother or father. There are three things which are implicit in this section. The adoptive parents must have power of disposal of the property; there must be an agreement to the contrary and this power of disposal is not liable to be curtailed or defeatad by mere fact of proof of adoption. The factum of adoption itself does not involve any such agreement at all. However, it does not, in my judgment, contemplate an agreement to be separately recorded. For instance, in this case such agreement is found in the adoption deed itself. The adoption deed in this case is dated 6th May, 1966. It is Exhibit 61 which is styled as Kararnama and the parties in the pleadings have also referred to it as Kararnama. The present terms of the agreement can be severable. I have not quoted the first part which deals with the factum of adoption after performing the ceremonies and describing that the adopted son is to be treated as a son of the family of the adoptive parents and from that time ceremonies have been performed and the adoption has taken place. The other part which deals with the declaration and enjoyment of right in regard to the property belonging to the adoptive mother has been extracted and quoted by me above. The learned Counsel for the appellant contended that if this part of the document as I have stated earlier is severable it constitutes an agreement to the contrary as provided by section 13 of the Act of 1956. Section 13 itself permits that such an agreement can be arrived at between the parties. The learned Counsel for the appellant therefore, relied on this part of the stipulation in the agreement which deals with the description of the right over the property stating that the adoptive mother will enjoy the property during her life-time and further stipulation that she will have no right to mortgage or sale the property.
22. In answer to this contention, the learned Counsel for the respondent, first of all, contended, that this agreement was disputed by the defendant. It was said that this agreement is not at all executed and, therefore, any term in this agreement is not binding on her. It was contended that this agreement in fact did not come into existence at all. It is on a simple paper and it does constitute an agreement which would vest any right in the plaintiff to curtail the absolute power of disposal of the owner. Under the Hindu Adoptions and Maintenance Act 1956, the parents are the absolute owner of the property which they possess.
23. As far as the attack on the execution of the agreement is concerned and disputing the correctness of the document, I have already held that this agreement was duly proved. In order to ascertain the true intention of the transaction embodied in a deed it is not the name or the style in which it is stated is to be taken into consideration but the deed has to be read as a whole and by express words used in the deed we have to find out the true transaction embodied in the deed. Although the parties have chosen to call it as Kararnama it is in fact an adoption deed and as a part, it also deals with the certain restrictions on the right of the adoptive mother. This deed is itself an adoption deed and in this deed the term relating to the restrain which is put on the power of disposal of the owner is in dispute before me. Therefore, the contention of the respondent that this deed is not executed cannot be accepted and is rejected.
24. The learned Counsel for the respondent then contended that stipulation stating that the adoptive mother will have no right to mortgage or sale the property amounts to the creation of or limiting the interest and so it is liable to be registered and if it is not registered, this document is inadmissible in evidence. It was contended by the learned Counsel for respondent that under section 17(b) of the Registration Act, the kind of restrain which has been put expressly in the words that the adoptive mother will have no right to mortgage or sale the property constitutes a declaration and limiting of her right to or in immoveable property and so it is to be registered compulsorily. He invited my attention to the decision reported in 2(Ganesh Singh v. Sitla Baksh Singh), A.I.R 1931 Oudh 110. This case deals with a right to hold the market at a particular place. Reliance placed by the learned Counsel for the respondent on this judgment was to the effect that inasmuch as there was a restriction on holding of the market and such a restriction is also put by the express, words in the present document Exhibit 61, the decision is of assistance to the respondent and so the clause restraining the right to dispose of the property requires registration and so it is inadmissible in evidence.
25. I am afraid, this contention is not based on a proper view of section 17(b) of the Registration Act section 17(b) of the Registration Act to the extent it is relevant for our purpose is as follows:
“Documents of which registration is compulsory;
(1) …….…….
(a) …….…….
(b) Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or immoveable property;”
26. This clause came up for interpretation before the Privy Council and the words “declare, assign, limit or extinguish” have got a definite connotation. The decision is reported in 3(Thakur Bageshwari Charan Singh v. Thakurain Jagarnath Kuari), A.I.R 1932 Privy Council 55. The Privy Council observed:
“The word ‘declare’ in section 17 Implies a definite change of legal relation to the property by an expression of Will embodied in the document referred to and does not contemplate a mere statement of fact. Consequently a document containing an admission direct or inferential, that an alienation once took place does not declare a right within the meaning of section 17 and is exempt from registration. It only amounts to an acknowledgment.”
order that the instrument may come within the prohibition the stipulation ??? itself create, declare, assign or limit or extinguish some right title and ??? There must be an extinguishment or creation of an interest. In this case, the restraint is put in a negative way. The adaptive mother as the owner has stated and expressed that she will have no right to sell or Mortgage the property. Such a stipulation does not either create, declare, assign, limit or extinguish any interest. The interest which is to be created must be by the document itself. The stipulation must relate to or in immoveable property. This connotation does not answer the prohibition enacted in section 17(b) of the Registration Act and also it does not require any registration as such because it does not affect the immoveable property. In fact, it is something which is external to the dealing with the property. It is curtailment of a right of disposal.
27. In this connection it may be noted that the ownership is a bundle of rights which can be broadly divided in three categories such as; right of possession, right of enjoyment of a thing and right of disposition. In this case the possession and enjoyment of the property rests with the original owner. It is the right of disposal which also is one of the essential elements of ownership that is curtailed by the owner in this case. The curtailment of right of disposal does not in any way affect the right to or in the immoveable property as such. If the owner himself puts some restrain on his enjoyment and agrees not to deal with the property it is not possible that any interest or title is created, the stipulation of this nature will have to be considered on its own wording and the express words used in a particular document. The restrain which is put by the owner in this case has to be now understood whether it is an express covenant made or the mere expression of Will. The words in the document clearly show that the defendant agreed that she will have no right to sell or mortgage the property in question. The contention of the learned Counsel for the defendent that this wording indirectly affects the right, title and interest in the property and comes within the prohibition of section 17(b) of the Registration Act, is, therefore, rejected.
28. The learned Counsel for the respondent contended that the stipulation, curtailing the right does not find place in Exhibit 58 which is a registered deed of adoption executed by the defendant. It is not found from the pleadings that a specific plea was raised in the alleged agreement that Exhibit 61 was revoked by reason of the execution of the registered deed of adoption Exhibit 58. Exhibit 58 is also the adoption deed which is on the record. Although Exhibit 61 is styled and named as ‘Kararnama’. I have held it to be an adoption deed by its terms and language employed therein. It is not nomenclature of the document which decides the nature of the transaction embodied in it. The substance of the transaction is also to be seen. I agree with the view of the learned trial Judge that Exh. 61 itself is an adoption deed by its terms and language. The learned Counsel for the respondent contended that the registered adoption-deed will prevail over the unregistered deed of adoption as far as this stipulation, is concerned and it should not be given effect to as it does not find place in Exhibit 58. Both the deeds are adoption deeds. They are not competing with each other. Exhibit 58 itself recites that the adoption has taken place and reference to this particular adoption as having been taken place is embodied in Exhibit 61. The omission of the stipulation in Exhibit 58 itself cannot constitute any infirmity in creating any doubt about the agreement contained in Exhibit 61. The challenge to Exhibit 61 was already given by the defendant on the ground that there was no execution as stated by the plaintiff. I have already discussed and I have held that Exhibit 61 is duly proved and its contents are binding on the defendant. The contention of the learned Counsel for the respondent that the omission of the stipulation in Exhibit 58 destroys the express stipulation in Exhibit 61 is not acceptable and it is, therefore, rejected.
29. Now coming to the merits of the contention whether this particular term or stipulation is consistent with the provisions of section 13 of the Hindu Adoptions and Maintenance (LXXVII of 1956) Act of 1956 and whether it is possible for the plaintiff to claim any injunction on the basis of this stipulation. It is necessary in this connection to observe that injunction is a preventive relief. In India it is granted by following the provisions of the Specific Relief Act (47 of 1963) which are contained in Part II and Chapter (vii) deals with the injunctions generally. Injunction is a preventive relief and perpetual injunction can be granted only at the hearing after the suit is decided. In India a right to injunction is governed by the provisions of the Specific Relief Act. This is a procedural Act. The relief which is a party claims by injunction is granted by the Court on the footing that there an existence of obligation which requires to be fulfilled by a particular party. The words used in this deed (Exh. 61) are:
30. These words are akin to the obligation created by the adoptive mother in writing. There is oral evidence to which I am not referring to show that such an agreement has taken place. This writing embodies an obligation. Obligation is defined in section 2(a) of the Specific Relief Act and it is as follows:
“‘obligation’ includes every duty enforceable by law;”
31. This particular term in the agreement involves that the owner has agreed not to mortgage or sell the property. This is a duty which the owner has made in the agreement and this duty creates a corresponding right in the plaintiff to enforce the same. This agreement, as I have stated was separable and it is proved by the evidence. This agreement is consistent with the object of adoption that ultimately the beneficiary i.e the adopted son must be benefited by this term. This agreement is not unreasonable, harsh or unjust.
32. In order to find out whether the plaintiff has got an enforceable right we have to see the nature of the transaction and the disputed stipulation in a particular deed. The obligation which is to be enforced may arise out of contract or out of an interest in the immoveable property itself. The remedy of injunction is available in either cases. As I have already stated that this stipulation is by way of obligation and satisfies the requirements of an agreement to the contrary as provided by section 13 of the Hindu Adoptions and Maintenance Act of 1956. It can be a basis to furnish a ground for a claim of injunction in order to enforce the duty created by this stipulation.
33. Under section 42 of the Specific Relief Act such a negative agreement can be enforced despite the prohibitions enacted in section 41 of the Specific Relief Act. Injunction is ordinarily issued to prohibit the violation of right. Whenever a right exists or is created whether by the contract or by the ownership to the property or even otherwise a violation of such right can be prohibited in the circumstances by resorting to this sort of remedy. Under section 38 of the Specific Relief Act it is provided that injunction can be granted to prevent the breach of obligation. Section 38(1) reads:
“(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour whether expressly or by implication.
34. It is further provided that when such obligation arises from the contract, the Court shall he guided by the rules and the provisions contained in Chapter III, Chapter II deals with the contracts and enforcement of the specific performance of the contract. Now, in this case one of the requirements is, as I have stated, that if the defendant is not prevented from acting in any manner in which she has agreed, there is likelihood that she may commit the breach of the obligation. If this obligation is held to be proved in the form of agreement, I see no reason how the relief of injunction can be refused merely on the ground that the plaintiff has no right or interest in the property.
35. It was contended by the learned Counsel for the respondent that the plaintiff has no present interest or right in the property. It is true that he has no right or interest in the property. However, the limited relief which the plaintiff is claiming by way of injunction is founded on an express agreement or stipulation which is in the form of an obligation and it creates a duty and in creating this duty it also gives a corresponding right to the plaintiff to enforce that duty by recourse to law. This agreement is not shown to be against public policy. This agreement or the stipulation was not shown to be vitiated by any such, circumstances by which a contract is vitiated. This agreement is not shown to be unjust. This agreement is not unreasonable. If that be the real position, it is not possible to hold that merely because the plaintiff has no interest in the property such a relief cannot be granted to him.
36. Injunction is a judicial process which requires a party to do or not to do a particular thing. Even a negative agreement of this sort can be enforced by the Court under section 42 of the Specific Relief Act. If the Court is satisfied that such a negative stipulation is separable from the affirmative agreement which is before the Court it can exercise its discretion in granting injunction to enforce that negative stipulation, in my judgment, there is no legal or factual prohibition in this case to prevent the plaintiff from claiming perpetual injunction on the ground that the defendant with her open eyes made a contract to the effect that she will not do a particular thing, in that, she will have no right to sell or mortgage the property. Equity certainly can intervene and by way of injunction the party can be asked to do or not to do a particular thing if it has agreed in a negative way. If the party has contracted to do or not to do a particular thing there is no reason why injunction should not be granted to protect the plaintiff in such cases. In this case the first part of the deed shows that the adoptive mother has accepted the boy in adoption after performing ceremonies according to Hindu Law. In the second part she has expressed about the enjoyment of the property during her life-time and in that context, she has stipulated that she will have no right to mortgage or sell the land. The stipulation that she will have no right to sell or mortgage the property is a negative covenant which is held to be proved. If it is held to be proved, I see no reason why a relief cannot be granted to the plaintiff though he may not have a right or interest in the property which may be involved in such a negative covenant. As I have already stated that the above stipulation does not create any right or interest in the immoveable property. It requires something more in order that an interest may be created or declared within the meaning of section 17(b) of the Registration Act than the mere stipulation as stated in the agreement which is lacking in this case. The covenant is only by way of expression of the Will of the defendant not to mortgage or sell the property.
37. The learned Counsel for the appellant invited my attention to certain judgments and they are (1) 4(Ram Baran Prasad v. Ram Mohit Hazra), A.I.R 1967 Supreme Court 744; (2) 5(Moulvi Ali Hossain Mian v. Rajkumar Haldar), A.I.R 1943 Calcutta 417; (3) 6(Mt. Sindhi v. Mt. Partapo), A.I.R 1949 East Punjab 207 and (4) 7(Krishnamurthi Ayyar v. Krishnamurthi Ayyar), A.I.R 1927 Privy Council 139. I have gone through these judgments. They are dealing with some situations which do not directly answer the point which is before me. No direct authority was cited before me dealing with the provisions relating to the interpretation of section 13 of the Hindu Adoptions and Maintenance Act, 1956. I, therefore, do not propose to discuss those authorities as I am deciding this case on first impression and on main principle in regard to the enforceability of obligation by way of stipulation in a particular deed.
38. In this connection it will be useful to refer to the commentary on Hindu Law by N.R Raghavachariar (Vol. II 7th Edn.). The learned Author at p. 1188 observed:—
“Very often this agreement takes the form of adoption deed containing the stipulation that the adopter will not alienate the existing properties and making the adoptee the joint owner thereof with the adopter.”
39. There is no reference to any case as such but I am referring to it only to show that such a stipulation in the deed may not be repugnant to the Hindu Law and such a stipulation may not contemplate any creation of interest in the immoveable property as such.
40. I may also refer to the other commentary on Hindu Law. The learned Author of Mulla's Hindu Law (15th Edn.) at p. 1111 observed:
“An agreement to the contrary made by the adoptive father or adoptive mother, that is, not to dispose of his or her property, in consideration of the gift of his son or daughter by the person giving in adoption is valid and binding on the adoptive father or adoptive mother as the case may be.”
41. I am extracting these observations of the learned Authors to fortify my view. The stipulation which is discussed by me relying on the deed (Exhibit 61) is similar to the observations of the learned Authors mentioned above. It is protected by the section itself because section 13 of the Act of 1956 says “subject to the agreement contrary”. The agreement may be separate or it may be embodied in the deed of adoption itself by way of stipulation, in my judgment and on the interpretation of Exhibit 61 which I have held to be proved, the stipulation of this kind can be enforced by the party concerned by way of injunction.
42. The learned Counsel for the respondent then invited my attention to the fact that the injunction granted by the trial Court is very wide in its scope and the real owner is being deprived of the right to deal with the property which is very harsh. Hardship may also be considered by this Court in its discretion while granting the relief of injunction. It is true that the right of the owner is being curtailed but then it is on the volition of the owner herself. The consideration is obvious that she has adopted the boy in her own family. The plaintiff is claiming injunction to the extent that the defendant should not mortgage or sale the property. In the circumstances of the case as I am inclined to grant injunction in favour of the plaintiff, I do not think that the consideration of hardship to the defendant may be relevant one. In this case the defendant is an absolute owner and in possession of the property. I think that the ends of justice will be served if restrict the injunction to a major portion of the property and leave some margin for transfer to the defendant. 1 think that if the defendant is allowed to enjoy the property fully and permitted to transfer or mortgage a small portion of the property it will not be injurious to the rights of the plaintiff. I, therefore, direct that the defendant shall have a right despite the above injunction to deal with a small portion of the landed property to the extent of 3 to 5 acres as she chooses. The transaction in regard to the portion of the such property must be supported by urgent necessity such as religious or charitable purpose or any dire financial needs to herself. While dealing with this portion of the property it would be desirable that she may also give a prior information or notice to the plaintiff. With these observations, the decree passed by the trial Court for perpetual injunction is confirmed.
43. In the result, the appeal is allowed and the judgment and decree of the learned Assistant Judge is set-aside. No order as to costs. The decree of the trial Court is restored with the above-mentioned modifications.
44. The defendant is entitled to mortgage or sale the property subject to the restrictions which I have mentioned above in regard to the small portion to the extent of 3 to 5 acres of suit land, according to her Will and pleasure after notice to the plaintiff and for urgent financial need or any religious or charitable purpose.
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