TMI Blog1967 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, Karsondas Madhavdas, who died in September, 1921. After the death of the father, Gordhandas and his brother enjoyed the properties obtained by them under the will of their father as undivided co-owners until the 26th of August, 1924, when Gordhandas died. On his death, his share in the properties was inherited by his widow, Bai Ratanbai, since he had no issue. From 1924-25 to 1954-55, Bai Ratanbai was assessed with reference to the income derived by her from her husband's properties in the status of an individual. During the course of this period on or about the 3rd of September, 1937, Bai Ratanbai and her brother-in-law, Pratapsinh had acquired a property called "Kastoorchand Mills Estate" as tenants-in-common with equal shares. Bai Ratanbai had provided her share of the purchase-money from the income of the properties inherited by her from her husband. On the 18th of May, 1954, Bai Ratanbai adopted Ranjitsinh, the son of her brother-in-law, Pratapsinh. The adopted son was born on the 19th February, 1938, and was, therefore, a minor at the date of the adoption, being about 16 years of age. On the 25th of February, 1955, a document came to be executed between Bai Ratanbai, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare of the rents and profits of the said lands hereditaments and premises described in the schedule hereunder written after deducting therefrom all municipal and other rates, taxes assessments expenses and repairs and other outgoings all establishment charges, insurance premia and other expenses relating to the said Kastoorchand Mills Estate and to the further intent that during the lifetime of the said Ratanbai the said Ranjit Sinh shall be entitled to another one-fourth share in the said land hereditaments and premises described in the schedule hereunder written and that the said Pratapsinh shall continue to have and be possessed of and be entitled to the remaining one-half share in the said land hereditaments and premises as hithertofore. It is hereby further agreed and declared by and between the parties hereto that subject to the rights of the said Ratanbai in a one-fourth share of the said land hereditaments and premises as aforesaid Ranjitsinh shall have full rights powers and authority as an adopted son in the moiety or half share of the family of the said Gordhandas Karsondas in the said land hereditaments and premises described in the schedule hereunder written. " Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the said deed dated the 25th February, 1955, and all the terms, provisions, declarations, agreements, covenants, powers and provisos, contained in the said deed shall take effect and be binding upon the said Ranjitsinh and the other parties to these presents in the same manner in all respects as if the said Ranjitsinh has been of full age at the date of the said deed and had executed the same in his own proper person. Clause (2) declared and confirmed the fact of adoption and its having taken place in due conformity with the requirements of Hindu law and religion, and Ranjitsinh getting all the rights of an adopted son of the said Gordhandas Karsondas, subject to the other provisions contained in the said deed. The document thereafter stated : " The parties hereto declare and confirm that the said Ratanbai shall from and after the 18th day of May, 1954, and during her lifetime have enjoy and be possessed of and continue to have enjoy and be possessed of one-fourth share in the land hereditaments and premises known as ' Kastoorchand Mills Estate ' and particularly described in the schedule hereunder written to the Intent that she shall have a Hindu widow's estate and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not assessable in the hands of the Hindu undivided family. The Income-tax Officer did not accept the said claim because, in his view, the agreement was not entered into prior to the adoption but subsequent thereto after the adopted son had become entitled to all the rights of a coparcener. The agreement, therefore, was invalid and not capable of achieving what it sought to achieve, which could only be done by a regular partition in the family. Since there was nothing to show that there was a partition between Bai Ratanbai and the minor, the one-fourth share of the income from the Mills Estate was not capable of being excluded from the income of the joint family. In the appeals against the said assessment orders, the Appellate Assistant Commissioner agreed with the view taken by the Income-tax Officer and dismissed the appeals. The assessee took further appeals to the Income-tax Appellate Tribunal from the assessment orders in all the five assessment years 1955-56 to 1959-60. The appeal against the assessment order for the first year 1955-56 was dismissed by the Tribunal on the ground that since there was no agreement, which was effective during the relevant previous year, which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted and could, therefore, not be treated as having a legal and binding effect. At the date when the said adoption took place, the rights of the adopted son had already come into existence and moreover his natural father had lost all rights to represent the adopted son or to act on his behalf. The natural father of the adopted son, therefore, had no locus standi whatsoever to represent the minor in the said agreement, nor had he any right to agree on his behalf to a curtailment of his rights. The agreement of the 25th February, 1955, therefore, was an invalid agreement. The subsequent document dated the 18th January, 1957, to which the adopted son was a party after attaining majority was not an independent agreement but one that was in pursuance of the earlier invalid agreement. Mr. Joshi referred us to clause (6) of the first agreement which had provided that the adopted son on attaining majority shall execute another document in ratification of the said agreement, and argued that the second document was not executed by the adopted son of his own volition, but because he was enjoined to do so by the earlier document executed by his natural father. Mr. Joshi, therefore, has argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear to us that the document of the 25th February, 1955, had reference to an agreement arrived at between the adoptive mother and the natural father of the adopted son anterior to the date of the adoption or contemporaneously with the adoption. The document in terms spoke of an agreement in connection with the adoption and further stated that it was being executed, as the parties were desirous of recording the adoption and also of recording the agreement between the parties as aforesaid, that is, in connection with the adoption. The agreement purported to be an agreement curtailing the rights of the adopted son in the properties of his adoptive father. Such an agreement would normally be expected to be arrived at anterior or at any rate contemporaneous with the adoption since such agreement normally is an agreement in consideration of the boy being adopted. It is difficult to understand why, after the boy has been adopted and his rights in respect of the family of the adoptive father have already come into existence, the natural father of the boy should enter into an agreement curtailing his rights. It is no doubt true that the first document does not speak of any particular poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the position on the basis that there was an agreement prior to the adoption, which was subsequently recorded in the document dated 25th February, 1955. It appears to us that Mr. Joshi is right in this submission and we must, therefore, proceed to consider the case on the footing that the agreement between the parties first came into existence on the 25th February, 1955, and was not in existence at any time earlier to that date. Now, on the 25th February, 1955, the adopted boy had already been adopted ; he had lost all his rights in the natural family and had acquired the rights of an adopted son in the adopted family. His connection with the natural family having been cut off, the natural father had no right to represent him thereafter. Mr. Joshi is, therefore, right in saying that the natural father, by an agreement entered into by him subsequent to the adoption, could not curtail or affect the rights of the adopted son in respect of the property of the adoptive family. But the consequence of this submission is that the adopted son could ignore and treat as invalid the agreement entered into by his natural father and may refuse to abide by the same. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
