First Appeal No. 207 of 1932. Case: Pemraj Mulchand Marwadi Vs Rajibai Fulchand. High Court of Bombay (India)

Case NumberFirst Appeal No. 207 of 1932
JudgesRangnekar and Macmillan, JJ.
IssuePersonal Law
CitationAIR 1938 Bom 63, 1937 (39) BomLR 1069, 173 IndCas 367
Judgement DateMarch 04, 1937
CourtHigh Court of Bombay (India)

Judgment:

Rangnekar, J.

  1. This is an appeal in a mortgage suit brought by the respondents against the appellant. The mortgage was not denied, but the defendant pleaded that he was an agriculturist and prayed for installments. His principal contention, however, was that at the date of the mortgage he had no interest in the property which he could mortgage. The learned Judge accepted the plea of the defendant being an agriculturist and ordered accounts to be taken under the Dekkhan Agriculturists' Relief Act. He rejected the contention that the defendant was not entitled to mortgage the property. This last contention is based upon certain facts which may now be shortly stated.

  2. The appellant who was the natural son of one Laduram Lachchimandas was taken in adoption during his minority by one Mulchand Dulraj on June 15, 905. On the same day a deed was executed by Laduram and subsequently registered. After reciting the fact of adoption, the deed was in the terms following:--

    Between you and me it is agreed that-- As long as both yourself and your wife Sirubai, wife of Mulchand or one of you two is alive, the adoptee has no right whatever on your property. As long as you or the said Sirubai is alive, the adoptee should live in your house and you should bring him up. If the adoptee happens to quarrel with you or Sirubai, you or Sirubai should give as you please for the adoptee's maintenance. You had a brother named Sidakran Mulraj; his widow Ruipabai stays with you. The adoptee should maintain her after your death. If the adoptee happens to quarrel with her after your death, the adoptee should pay Rs. 10 per month for her maintenance. I have made the above agreement on behalf of the adoptee and it is binding on him. This adoption deed is passed.

    Mulchand died in 1907. The mortgage was executed by the appellant in: the year 1929 long after he attained majority. According to his evidence, he was managing the property for a long time and admittedly had executed another mortgage also.

  3. The learned Judge of the Court below held that apart from anything else the agreement did not bind the mortgagee as he was not a party to it nor was he aware of it when the mortgage was made. He further held that the agreement was not valid and did not in any way bind the appellant, and this is the only question which now falls to be decided.

  4. Now, it is quite clear on the authorities that an adoption confers upon the adoptee the same rights as the legitimate...

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