1. The facts which have given rise to this appeal are briefly these. Narsingji, Thakor of Mebelol, died in the year 1883, leaving two widows, Dariaba and Bajirajha. Bajiraja gave birth to a son named Raisingji, whose legitimacy was disputed by Dariaba. Bajiraja filed Suit No. 967 of 1886 to establish that Raisingji was the natural son of Narsingji. She succeeded in the suit, but in appeal the High Court reversed the decree of the trial Court and held that Raisingji was not the son of Narsingji. There was an appeal, however, preferred by Bajiraja to "Her Majesty in Council, with the result that the decision of the High Court was reversed and that of the trial Court restored in 1898. The High Court decided the appeal on the 25th July 1892. A few days after that Dariaba adopted Dalpatsingji, the present plaintiff, on the 8th August 1892, before the application for leave to appeal to Her Majesty in Council was made on the 17th November 1892. The estate was managed by the Collector after 1895 as the guardian of Dalpatsingji, and after 1898 on behalf of Raisingji. Even after Raisingji attained majority, the management of the estate remained with the Collector of the Panch Mahals under Section 26 of the Gujarat Talukdars' Act (Bom. Act VI of 1888). The estate among other things consists of Talukdariestate and certain wants lands. The Collector continued to give varying sums by way of maintenance to Dalpatsingji even after the judgment of tins Privy Council. In September 1909, Dalpatsingji made an application to the Collector requesting him to bring about an amicable settlement between him and Raisingji. In this application he put forward his claim to a part of the estate as the adopted son of Narsingji. In 1910 it is said that Raisingji agreed to give to Ualpatsingji certain land known as Kankanpur wanta by way of jivai (maintenance). But Raisingji failed to carry out this agreement, and Dalpatsingji filed the present suit to enforce his rights as Narsingji's adopted son. He claimed one-fifth share in the estate and, in the alternative, the Kankanpur wanta, both according to law as well as under the agreement of 1st June 1910. The defendant, Raisingjij who is the really contesting party, resisted the claim on various grounds. The learned Joint Judge, who heard the suit, decided against the plaintiff on the material issues, and dismissed his claim.
2. The plaintiff has now appealed to this Court. Mr. Coyaji on his behalf has argued two points only in support of the appeal. Firstly, it is contended that even if the plaintiff's adoption be invalid he has a right of maintenance on his adoptive family according to Hindu Law, and secondly, that under the agreement the plaintiff is entitled to the Kankanpur wanta. It is conceded by Mr. Coyaji--and I think very properly conceded--that after the finding of the Privy Council as to the status of Raisingji, the plaintiff's adoption by Dariaba cannot be maintained as valid. Narsingji having a natural son, according to the finding of the Privy Council, at the date of adoption, Duriaba could not be presumed to have any authority from her husband to adopt. The fact that the adoption was made by her at a time when the High Court had decided in her favour and against Raisingji's status, and before an application for leave to appeal to Her Majesty in Council was made in November 1898, cannot affect the question. It is not necessary to deal with this point any further, as it is not contended before us that the adoption of the plaintiff by Dariaba is valid according to Hindu Law.
3. As regards the contention that a boy whose adoption is found to be invalid has a right to be maintained out of the estate of the adoptive family, there is neither text nor precedent in support of it. Dariaba had no authority to adopt. The mere fact that ceremonies were properly performed and that Dariaba thought that she had authority to adopt would not affect the question. As pointed out by Sir Michael Westropp, C.J., in Lakshmappa v. Ramava 12 B.H.C.R. 364 at p. 397,
"An invalid adoption works nothing. It leaves the alleged adoption precisely in the same position which he occupied before the ceremony, no matter how formally it may have been celebrated."
The Madras High Court has taken the same view in
Bawani Sankara v. Ambabay Ammal 1 M.H.C.R. 363 which is referred to with approval by Westropp, C.J., in
Lakshmappa v. Ramava
12 B.H.C.R. 564 at p. 397 Mr. Coyaji relied upon certain observations in
Ayyavu v. Niladatchi
1 M.H.C.R. 45. But they were not necessary for the decision of the case. It is difficult on principle to allow the contention that even though the adoption may be invalid, the adoptee has a legal right to maintenance in the adoptive family. I say this strictly with reference to the facts of this case. There is no question of acquiescence here on the part of Baisingji, apart from the agreement of June 1910. The plaintiff is not proved to have lost his right in the family of his birth. It may be that in consequence of the Mehelol Estate being far more valuable than the estate of his natural father he may have preferred to take his chance, whatever it may be, in the adoptive family. Mere omission on his part to assert his right to a share in the estate of his natural father cannot enhance his rights in the family of adoption. It is not necessary to consider whether the plaintiff would have any right of maintenance in his adoptive family, if it were proved that he had in fact lost his status in the family of his birth, though even then it would be difficult to accept the plaintiff's contention. I hold that having regard to the facts of the case, the plaintiff's adoption is invalid and that he has no legal rights in his adoptive family.
4. Coming to the argument based on the agreement, it is necessary to state a few facts relevant to the point. I have already mentioned the plaintiff's application to the Collector for an amicable settlement. The Collector consulted the Government Pleader of the District, who happened to know the case of Dalpatsingji. The Government Pleader advised that
"in justice, equity and good conscience as well as according to law the petitioner (i.e., Dalpatsingji) had a good cause."
It is not unlikely that the Collector and the Assistant Collector were influenced by this opinion, Baisingji was persuaded to settle the matter. Accordingly he undertook on the 1st June 1910 in the presence of the Assistant Collector to give his Kankanpur wanta by way of maintenance to Dalpatsingji and his direct lineal heirs. It is not denied by the plaintiff, in fact it is his case, that a document conveying the wanta to him was to be executed and registered later on by Baisingji and that he (Raisingji) never appeared to execute the document. It is the declaration or the statement made by Baisingji before the Assistant Collector that is relied upon by the plaintiff as an agreement to give him the Kankanpur wanta. There are various difficulties in accepting the said declaration as a final and binding agreement. In the first place,, it is clear that the declaration marks a stage in the negotiations as to the proposed amicable settlement. A document giving effect to the declaration or statement was to be executed later on, though it is not mentioned in the declaration. Baisingji refused to, execute it, and after giving an undertaking never expressed his willingness to carry it out. In form the document is not an agreement. It is neither stamped nor registered. If in effect it creates an interest in immoveable property, it must be registered. The plaintiff contends, however, that it is merely an agreement to convey, and does not by itself create any interest in his favour in the property and that it should be specifically enforced as embodying a fair settlement of the dispute between the parties. The whole conduct of the defendant, Baisingji, shows that he was ready at the time of the declaration to give the Kankanpur wanta, and that he changed his mind when it came to the stage of giving effect to the settlement. Apparently the plaintiff had given no correlative undertaking at the time, and I am unable to see anything in the case which restricted his liberty in the eye of law to assert his claim to a fifth share in the estate, as he has done in the present suit. Of course it may be that, having regard to his own interests, he may not in fact have cared to do so. But that is not the test. Having regard to these considerations it seems to me that it was quite open to the plaintiff, Baisingji, to change his mind. There was no completed contract. An undertaking of this kind marks only a stage in the negotiations, which, unless completed, may be broken off at any time by either side.
5. Secondly, it is clearly an undertaking which no Court would enforce against Raisingji. He was admittedly a man of weak intellect. His estate was managed by the Collector under Section 26 of the Gujarat Talukdars' Act, probably because he was incapable of managing his own estate as stated by the witness (Exhibit 52). He would be under a disability to enter into any agreement with reference to any part of his property without the sanction of the Managing Officer under Section 29A of the Act. I do not desire to express any opinion on the question whether this agreement, even if otherwise good, is not invalid for want of the necessary sanction under Section 29A, as the point is not argued and as it is not quite necessary to come to any definite conclusion on the point. But these facts clearly render it necessary to examine closely the promise made by such a man. The promise made by him is practically without any consideration to support it. I am not sure that the defendant fully realised the effect of the expression referring to the direct lineal heirs of Dalpatsingji in the statement, which would apparently include daughters, it is a matter of common knowledge that persons in the position of the Thakor of Mehelol would be ordinarily unwilling to give jivai lauds on terms, which would make it possible for the property to go out of the hands of the male members of the family. The wanta land was selected because, as stated by the Assistant Collector in his evidence, it was not possible to alienate this Talukdars' estate under section 29a of the gujarat talukdars' act. It was hardly realised that the sanction under Section 29A would be necessary not only for the alienation of the Talukdars estate but also for the alienation of waula lands (i.e., for non-Talukdari estate). Even if the reason for selecting the wunta and was to, avoid the necessity of a sanction of the Governor-in-Council under Section 31 of the Act, which is hold by this Court to relate to the Talukdar's estate of a Talukdar and not to any property of the Talukdar held on non-Talukdari tenure, the result was that wanta land was to be given up by the defendant. It is obvious--and in fact it was not denied by Mr. Coyaji--that, generally speaking, the tenure of the wanta land would be more favourable to the holder than the Talukdari tenure. These are several considerations which render it necessary in the interests of justice to hold that Raisingji is not bound by a promise of this character. I would certainly decline to specifically enforce an agreement of this kind, even if the suit were treated as being substantially one for the specific performance of the agreement.
6. Lastly, it may be stated that Mr. Coyaji has discussed the oral evidence relating to the co-called agreement fairly and fully before us, and we have not found it necessary in this case to hear the Counsel for the defendant, Raisingji. It is clear that the Revenue Authorities acted fairly and honestly. They were persuaded by the Government Pleader to believe that Dalpatsingji had a good claim, and the Assistant Collector states that in bringing about this result he did use persuasion but no pressure. I do not think that the learned Judge below means to hold anything more than this, viz., that a man of Raisingji's intellect, if persuaded by the Assistant Collector and Collector, is likely to yield even against his own real wishes, and that a consent given as the result of such persuasion should not be acted upon, if in fact it, happens to be against the interests of the consenting party and if he has retracted it almost immediately after giving it. This appears to be a fair inference from the evidence on the point; and as I have already stated, the defendant cannot be bound by a bare promise of that character.
7. The result, therefore, is that the decree of the lower Court is affirmed with costs. Each respondent is to have a separate set of costs.
Heaton, J.
8. I wish to add only a few words in the matter of the conduct of the Revenue Officers which has been brought to our notice. I wish to say that, in my opinion, these Officers acted with perfect propriety. They obtained the legal opinion of their local advisers. They then endeavoured on the strength of that opinion to persuade this young Talukdar to make some provision for a very unfortunate man and in so doing, it seems to me, that they were acting very properly. But the differment which this young Thakore signed was, it seems to me, merely a written record of a declaration. It was not in its true sense an agreement at all. In so far as it had any formal character, it was merely a declaration made before the Collector. Obviously it was not intended to be a final declaration, because a more formal deed was to follow.
9. I agree in the order proposed by my learned colleague.