Charles Arnold White, C.J.
1. This is an appeal by the 2nd defendant against a decree on a mortgage, dated the 11th October 1892, executed by the father of defendants Nos. 1 and 2 on his own behalf and on behalf of the defendants in favour of the plaintiffs' predecessor in title. For the purposes of the appeal the material dates are these. In January 1897 Kumarettu, No. 14 in the pedigree, died. In October 1892, the mortgage in question was executed by Sivathaiya, No. 18 in the pedigree. In 1896, No. 18 died and his estate devolved upon defendants Nos. 1 and 2. In December 1904, the present suit was instituted. In January 1905 the widows of No. 14 adopted the 1st defendant. It seems clear (in fact the appellant did not seriously contend otherwise) that the exercise of the power to adopt was the counter move on the part of the widows and the 2nd defendant to the suit on the mortgage. For the purpose of the appeal, I assume that a valid power to adopt was given and that this power was duly exercised by the widows of Kumarettu (No. 14 in the pedigree).
2. The questions for consideration are:
(1) In whom was the estate in the property comprised in the mortgage vested at the date of the adoption ?
(2) What was the nature of this estate ?
(3) Did (sic) Exsercise of the power to adopt divest the estate?
(4) If the, dose the adopted son take the property subject to the mortgage which had been executed by the holder of the estate before the power to adopt was exercised ?
3. As to (1), the appellant has contended that No. 18 took no estate at all (though he was entitled to possession during the lifetime of the widows by an arrangement with them), and that at the date of the adoption a widow's estate was vested in the widows of No. 14.
4. Their case is that at the time of his death No. 14 held the property in question as his separate estate, and that a widow's estate therein devolved on his widows at his death.
5. Even in this view, the widows being still alive, on the authority of Sreeramulu v. Kristamma I.L.R. (1902) M. 143 the plaintiffs would be in the position of mortgagees of an interest which would be a subsisting interest during the life-time of the widows.
6. In Sreeramulu v. Kristamma I.L.R. (1902) M. 143 it was held that when a Hindu widow alienates part of the immoveable property belonging to her husband's estate and then adopts a son, the son cannot sue to recover possession of the property until the termination of her widowhood. It was urged that this decision was wrong. It is no doubt inconsistent with the view expressed by Mr. Mayne--see Section 197 of his book (Edition No. 7). It does not seem to be reconcileable with the decision of the Privy Council in Rai Bonomali Roy Bahadur v. Jagat Chandra Bhowmick I.L.R. (1905) C. 669 and it was expressiy dissented from in Ramakrishna v. Tripurabai I.L.R. (1908) B.88 I do not propose to discuss the question whether the decision in Sreeramulu v. Kristamma I.L.R. (1902) M. 143 is good law. The Subordinate Judge finds against division between the branches represented by No. 14 and No. 18, and I am not prepared to differ from his conclusion. In the view that No. 14 did not hold the property as separate estate, the question considered in Sreeramulu v. Kristamma I.L.R. (1902) M. 143 does not arise for determination in this case.
7. I am of opinion that on the death of No. 14, subject to the widow's right to maintenance, the estate vested in No. 18. It is clear that this was the view taken by the widows (see Exhibit X). The case sought to be made in the court below, that this document was procured by coercion, was not pressed on appeal. On the death of No. 18, before the adoption, the estate vested in defendants Nos. 1 and 2 as sons of No. 18 and at, the time of the adoption the estate was vested in them.
8. As regards the second question, the Subordinate Judge found that the property was impartible and that on the death of N0.14 it devolved as an impartible estate on N0.18--see paragraphs 56 to 91 of his judgment. I agree with this finding. In certain litigations in 1864 (see Exhibits N and N1) this court held that the property was impartible, and the view that it is impartible is strongly supported by the terms of Exhibit X. I need not refer to the other evidence on the question.
9. It was urged that as there was no specific allegation in the pleadings as to the impartibility of the estate, the Judge was wrong in allowing the plaintiffs to raise the question at the trial. The Judge deals with the point in paragraphs 93 to 95 of his judgment.
10. I am not prepared to say the Judge was wrong in allowing this question to be raised, or in declining to allow the defendant to recall two of his witnesses after his case had been closed (see the Subordinate Judge's order of October 17th, 1905) or in admitting the documents referred to in the Subordinate Judge's order of November 21st, 1905.
11. If the property was impartible, although the line of succession is governed by the same rules as if the property were joint family property, No. 18 had unrestricted powers to deal with it. See Sartaj Kuari v. Deoraj Kuari I.L.R. (1887) All. 272 Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards I.L.R. (1898) M. 383 Rajah of Kalahasti v. Achigadu I.L.R. (1905) M. 454 and Zamindar of Karvetnagar v. Trustees of Tirumalai, Tirupati &c.; Devastanams I.L.R. (1908) M. 429 His sons could not question an alienation made by him and, if the estate divested, it could only divest subject to any alienations which had been made by the holder of the estate for the time being. No question as to the purpose for which the alienations had been made would arisen
12. If the estate is partible, the estate which devolved upon No. 18 on the death of No. 14, was the ordinary estate by survivorship in a joint Hindu family.
13. As to the 3rd question, the question whether the adoption of the 2nd defendant had the effect of divesting the estate which was vested in No. 18 when the adoption took place, was elaborately argued. Here the adoption did not take place until after the death of No. 18, i. e., after the interest which No. 18 took, whether he took it by survivorship or as the successor to an impartible estate, had passed from him. It may be said to be now settled law that an adoption made to the last male holder of the interest claimed by the adopted son would divest an already vested interest whether the estate was partible see Sri Varada Pratapa Raghunada Deo v. Sri Brozo Krishoro Palta Deo I.L.R. (1876) B. 51 or impartible see Bachoo v. Mankuverbai I.L.R. 1 M. 174. But I think I am right in saying it has never been held that an adoption, except where the property has reverted to the adoptive mother herself see Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi (1865) 10 M.I.A. 279 which was not made to the last male holder of the interest claimed by the adopted son, operates so as to divest an estate already vested when the adoption was made ; or, in other words, it has never been held that where the interest claimed by the adopted son had, at the time of the adoption, passed from the person on whom it had devolved from the original owner to some other person, that person would be ousted by the adoption. Here the adoption was made to No. 14, and at the time it was made, the last male holder of the interest claimed by the adopted son was No. 18. At the time of the adoption the interest claimed by the adopted son had passed from the person on whom it had devolved from the original owner.
14. It may be that the language of the judgment in Mussummat Bhoobun Moyee Delia v. Ram Kishorc Acharj Chowdhry I.L.R. (1876) M. 69 is not altogether appropriate to a case where the party whose estate is said to be divested has taken by survivorship as a member of an undivided family, but there is no authority to show that the principle of that decision does not apply in the case of a joint Hindu family. In fact, the authorities would seem to be all the other way--see for instance Chandra v. Gojara Bai I.L.R. (1890) B. 463.
15. In that case their Lordships observe that an adopted son, as such, takes by inheritance and not by devise, and they point out (page 311) that the rule of Hindu Law is that in the case of inheritance the person to succeed must be the heir of the last full owner. In the present case, at the time of the adoption, the last full owner was No. 18, but the 2nd defendant claims to succeed as ' the heir ' of No. 14.
16. The tendency of recent decisions would seem to be in the direction of limiting rather than extending the conditions in which an adoption can be made which has the effect of divesting estates or interests already vested when the adoption is made. In Manikya Mala Bose v. Nandakumar Bose I.L.R. (1905) C. 1306 the rule that, where the widow of an adopted son is alive, the widow of the original owner cannot make an adoption which would oust the adopted son's widow, was extended to a case where the widow of the adopted son had died when the adoption was made by the widow of the original owner and the estate had become vested in her. The same view was taken by this court in Adivi Suryaprakasa Rao v. Nidamurty Gangaraju I.L.R. (1908) M. 228.
17. As regards this question the view which I should be disposed to take is that, in the case before us the adoption of the 2nd defendant did not operate so as to divest the estate which had vested in defendants Nos. I and a at the date of the adoption. It is not necessary, however, to decide this point because, assuming the estate was divested by the adoption, I think there can be no doubt that the adopted son would take the property subject to the mortgage. The rights of an adopted son do not relate back to a period earlier than the date of his adoption Bamundass Mookerjee v. Mussamat Tarinee (1858) 7 M.I.A. 169 and Harek Chand Babu v. Bejoy Chand Mahatab (1905) 9 C.W.N. 795. As Mr. Mayne points out (Section 197, Hindu Law, 7th Edition) 'till he was adopted it might happen that he never would be adopted; and when he was adopted, his fictitious birth into his new family could not be antedated.' Mr. Mayne goes on to observe that an adopted son would not necessarily have to acquiesce in all the dealings with the estate between the death of his adoptive father and his own adoption. He points out that when the estate has been held by a female the estate is limited by the usual restrictions which fetter an estate so held, and that, if she has created any incumbrances or made any alienations which go beyond her legal powers, the adopted son can set them aside.
18. The question of the effect of an alienation by a man holding a full estate with reference to a subsequent divesting as the result of a subsequent adoption does not seem to have been considered in any reported case.
19. It is obvious that the restrictions which are incidental to the estate of a widow are not incidental to the full estate of a male. With reference to the estate of a full owner, Mr. Mayne observes (Section 198, Hindu Law, 7th Edition): 'Until adoption has taken place he is lawfully in possession, holding an estate which gives him the ordinary powers of alienation of a Hindu proprietor-No doubt he is liable to be superseded, but on the other hand, he never may be superseded. It would be intolerable that he should be prevented from dealing with his own on account of a contingency which may never happen. When the contingency has happened, it would be most inequitable that the purchaser should be deprived of rights which he obtained from one who, at the time, was perfectly competent to grant them.'' The decision in the Berhampore case Sri Varada Pratapa Raghunada Deo v. Sri Brozo Kishore Patta Deo I.L.R. (1876) M. 69 that the brother who was ousted by the adoption to the last holder is? not accountable for mesne profits between the date when he took possession and the date of the suit, supports the view that in the case of a male owner he is not, as Mr. Mayne puts it, ' prevented from dealing with his own on account of a contingency which may never happen.' The decision of the Full Bench of this court in Ramachandra Pillai v. Kalimuthu Chetti : (1911)21MLJ246 that the quantum of the interest taken by the alienee of an undivided co-parcener is to be determined with reference to the number of co-parceners at the date of the alienation, may also be referred to.
20. If the quantum of the interest is not affected by the birth of a natural son, it would not be affected by a fictitious birth by adoption, and, if the interest of the alienee is not affected as regards the quantum, it is difficult to see on what principle it can be contended that he is liable to be deprived of the property altogether.
21. I am therefore of opinion that, in the present case, the adopted son takes subject to the mortgage. Assuming I am wrong in the view I have indicated, and that it is necessary for the plaintiffs to show that the mortgage debt was contracted for purposes which were binding on the estate, I agree with the conclusion at which my learned brother has arrived, for the reasons stated by him in the judgment which he is about to deliver, that the evidence establishes that the debt was binding on the estate.
22. I am also of opinion, for the reasons stated by my learned brother, that, as between the 2nd defendant and his natural father, the 2nd defendant has failed to show that the money was borrowed for immoral or illegal purposes.
23. As regards the question of penalty, I agree with the court below that the provisions as to interest were not of a penal character. I think that this appeal should be dismissed with costs.
24. This is an appeal by the 2nd defendant against a mortgage decree passed by the Tuticorin Subordinate Judge in favour of the plaintiffs (respondents Nos. 1 to 7) on a mortgage bond, dated the nth October 1892, executed by the father of defendants Nos. 1 and 2 in favour of the plaintiffs' predecessors in interest.
25. A very large number of questions, both of fact and of law, have been raised in the lower court and in appeal, and, as the law points depend very largely upon the facts, it will be as well to begin by recording findings upon the facts, as such findings may do away with the necessity for dealing with some of the points of law raised in the case.
26. The plaint bond (Exhibit A) was executed by the father of defendants Nos. 1 and 2, one Sivathaiya, in favour of two Chettis who traded under the designations of R.M.A.R.A.R. and U.A.R. respectively for Rs. 12,000 and the consideration is made up of 7 items, (1) Rs. 4,250 to discharge a prior bond in favour of Vakil Snbbusami Aiyar (2) Rs. 2,930-6-4 for payment of cist due to the Ettiyapuram Zemindari, (3) Rs. 1,000 due on a pro-note executed to R.M.A.R.A.R. alone, (4) Rs. 65 for stamp and registration expenses, (5) Rs. 2,000 for a hundi for household expenses, (6) Rs. 1,500 and (7) Rs. 254-9-8 paid in cash before the Sub-Registrar. The appellant contends that with the exception of item (1) the consideration was borrowed by Sivathaiya for immoral purposes and has adduced evidence in support of his contention.
27. As regards item (2), there is no evidence as to its application for immoral purposes, but it is contended that the plaintiffs have not proved that the sum of Rs. 2,930-6-4 was actually paid for cist. We have, however, Exhibit J, an irasalnama or chellan, which shows that Rs. 2,930-6-4 was paid to one Subramania Aiyar. This chellan bears an endorsement ' credited,' which is signed by some illegible initials, but this endorsement has not been proved. No doubt Subramania Aiyar was an employee of the mortgagees' firm, but in Exhibit J he is described as the ' Kattalankulam Kattuguthagaidar's man,' i. e., the mortgagor's man, and the 1st plaintiff, as the plaintiffs' witness No. 8, proves his signature. The accounts, Exhibits E and K, also show the payment of this sum. Although there is no direct evidence that the money was actually paid into the Zemin treasury, it is proved that the money was paid to the mortgagor's man and that formal chellan for payment into the treasury was filled up. The mortgagees have therefore every right to conclude that the money was paid for the purposes for which it was borrowed.
28. Item (3) is Rs. 1,000 borrowed by Sivathaiya on a pro-note executed to R.M.A.R.A.R. on the 8th October 1892 (Exhibit B).
29. The pro-note recites 110 purpose, but the defendants' witnesses Nos. 14, 15 and 16 say that the money was borrowed in Madura and that it was paid over by Sivathaiya to one Sub-bammal in the presence of the lender, Adappa Chetti. This Subbammal is admittedly a dancing woman who was kept by Sivathaiya. The evidence of these witnesses is not satisfactory, for they are interested in defendants Nos. 1 and 2 and the defendants' witnesses Nos. 14 and 15 cannot explain why they accompanied Sivathaiya to Madura. The plaintiffs' witnesses No. 5 and 7 say that the money was paid in the Chela's shop whereas the defendants' witnesses say it was paid in the Saptur bungalow, where Sivathaiya and Subbammal were staying. Item (5) is a hundi for Rs. 2,000 for the expenses of a suit. The defendants' witnesses Nos. 7, 14, 15, 18 and 19 all say that this hundi was handed over to Subbammal, but there are many discrepancies in their evidence. Exhibit A shows that the hundi was drawn upon one Vairavan Chetti of the firm of R. M. M. of Tinnevelly, and that he was to pay the expenses of the contemplated suit. His accounts, Exhibits E and E 1, show clearly that payments were made by him to Vakils and for the expenses of O.S. No. 50 of 1894 on behalf of the Kattalangulam Kattuguthagaidar, i. e., the mortgagor. These payments together with an excess payment of Rs. 382 due to Vakil Subbusami Aiyar make up the Rs. 2,000 due on the hundi. These accounts, together with the oral evidence of the plaintiffs' witnesses Nos. 3, 4 and 6, completely falsify the evidence of the defendants' witnesses as to the payment to Subbammal, for they are unable to show that Vairavan Chetti had any other funds belonging to Sivathaiya from which the payments in the accounts could have been made. Sivathaiya's accounts have not been produced by the defendants, although it might be expected that they would give useful information. As regards item (6), we also have oral evidence that the money was paid to Subbammal. These same witnesses have given false evidence about item (5), and there is no reason why they should be believed as regards items (3) and (6). No doubt the money was borrowed in October, 1892, and O.S. No. 50 of 1894 was not filed until July 1894, but the delay has been satisfactorily explained. The Subordinate Judge has given additional reasons for disbelieving the defence evidence in regard to these items, and there is no reason to differ from his opinion. The letters, Exhibits XVI and XVII series, which tend to show that Sivathaiya wanted to give Rs. 4,500 to Subbammal, cannot have much weight in this case, for they were produced in a former suit, O.S. No. 68 of 1897, to show that the money lent by another Chetti in March 1893 was borrowed by Sivathaiya to give to Subbammal, and in that suit the plea was upheld (Exhibits XLI and XLIa). If. therefore, the Rs. 4,500 referred to in Exhibit XVII (j) was obtained from the lender in the former suit, it cannot have been borrowed under Exhibit A. Further, Exhibit XVII (j) is undated, and the recital in it is inconsistent with the circumstances attending the execution of Exhibit A. Exhibits XXVI and XXVII are not shown to be in any way connected with the plaint transaction. As regards the last item (7), there is no evidence except that of the defendants' witnesses that it was paid into Subbammal's hands. The Subordinate Judge's finding that the defendants have failed to prove that the money borrowed under Exhibit A was for immoral purposes, must be upheld.
30. Under Exhibit A seven villages are mortgaged and these are ' Kattuguthagai' villages held in perpetuity at a low rent, and it will now be necessary to determine (1) the nature of Sivathaiya's estate in these villages, and (2) whether they are partible or impartible property. Up to 1878, the villages were held by one Kumarettu, and he died leaving two widows (defendants Nos. 6 and 7) and no sons. He is No. 14 in the pedigree (Exhibit XXXI). He was succeeded by the mortgagor Sivathaiya No. 18 who was his paternal uncle's son, their respective fathers being Nos. 7 and 8 in the pedigree. The appellant sets up a division between the ancestor of Nos. 7 and 8, i. e., No. 2, and his brother No. 3, and a subsequent division between Nos. 7 and 8. No document is available to prove either partition, and the appellant relies on documents (Exhibits II, V, XII, XIII, XIV and XLII) which show that the junior members of the family dealt with certain lauds as their ancestral property and an attempt has been made to show by oral, evidence that the lanis dealt with by the respective branches are equal in value. It is suggested that in the division between Nos. 7 and 8, the former took the Kattuguthagai villages, and the latter an equivalent extent of other ancestral property. The finding of the Subordinate Judge, that the Kattuguthagai villages are impartible, is not seriously controverted in appeal, and it is supported by ample documentary evidence dating back to 1857 (vide paragraphs 58 to 66). It is, however, urged that the defendants were not allowed an opportunity of meeting the plaintiffs' evidence as to the impartible nature of the estate. The B diary and C.M.P. No. 399 show that the question was raised before the defence closed, and although no specific issue was framed on the point it is clear that the question was present to the minds of the parties. As the Kattuguthagai villages are impartible and held by only one member of the family at a time (this latter fact is not disputed), it is most improbable that one branch would take only the impartible property and leave all the partible property to the other branch. The oral evidence by which it is sought to prove that property in possession of the members of No. 8's branch is equal in value to the impartible property belonging to No, 7's branch must be rejected, for, the valuation given by the witnesses is very materially opposed to the valuation given in several documents (Exhibits II, XIIa and XLII). The separate possession of the junior members is easily explained when we consider that the family held a valuable impartible estate, the holder of which would have to make allotments for maintenance. The non-execution of a partition-deed in the case of a family holding such large properties, partible and impartible, is so improbable that very good extraneous evidence would be required to prove partition, and such evidence is not available. The presumption, therefore, that Nos. 14 and 18 were undivided must prevail, and this is also supported by the admission of No. 14's widows (defendants Nos. 6 and 7) in Exhibit X that No. :8 was the rightful heir of No. 14. The lower court's findings that the estate was impartible and that Nos. 14 and 28 were undivided must, therefore, be upheld.
31. After this suit was filed, and after issue but not service of notice on the defendants, the 2nd defendant was adopted by the 6th defendant with the consent of the sapindas as expressed in Exhibit I, and it is in virtue of this adoption that the 2nd defendant, the appellant, seeks to evade the plaintiff's claim. The adoption is said to have been made not only with the consent of the sapindas, but also with the authority of the deceased Kumarettu (No. 14) to whom the adoption was made. The point is not of great importance in this case, but the authority of Kumarettu is not proved. There is only oral evidence to prove the authority, which must have been given 25 years before the trial of this suit. No such authority was set up before the date of this suit, and the recital in Exhibit I goes to show that the sapindas who authorised the adoption did not believe that any authority had been given by the husband. It must, therefore, be held that the adoption was made with the consent of the sapindas. The question of whether this adoption is or is not valid has been the one most hotly contested in appeal, but before proceeding to decide that question it will be advisable to see whether the appellant can succeed, if the validity of his adoption be accepted. If his adoption be valid and effective, he would be entitled to succeed to his father's estate, but inasmuch as his adoption only took place in January 1905, the estate of his father did not vest in him until that date, and he would be bound by any legitimate alienations made by the intermediate holders of the estate, and he would be bound by the plaint alienation, if Sivathaiya had authority to make it. Taking the lowest view of the case, Sivathaiya would be entitled to make the plaint alienation in order to satisfy valid antecedent debts ' for family necessity.' Items 1 and 3 are antecedent debts; although the latter was only incurred 3 days before the execution of Exhibit A, it cannot be considered part of one and the same transaction, for, in the prior loan, the lender was only one of the lenders concerned in the plaint transaction. Item 2 was applied to the payment of cist due to Ettiyapuram. No doubt a careful man ought to have been able to pay the cist out of his current revenue, but Sivathaiya was not a careful man and incurred many debts, and a lender need be guided not by what ought to be the necessity of a borrower if he were a prudent manager, but what were his necessities at the time of the loan. The recital in Exhibit A and the appropriation of the money towards the cist are therefore sufficient to discharge the burden on the lender of proving the necessity. The Rs. 65 for stamp and registration, item (4), were also for the family necessity as well as item (5), the hundi for Rs. 2,000. The fact that the suit for which the Rs. 2,000 was required was dismissed cannot affect the case. Even if the suit was based on a false claim, the creditors were not in a position to know the fact. That the claim was not patently false is shown by the fact that defendants Nos. 1 and 2 continued the litigation after their father's death. The only other items are Nos. (6) and (7), and of the application of these there is no evidence adduced by the plaintiffs. As regards the item of Rs. 1,500 (6), the bond Exhibit A recites that it was borrowed for 'household expenses;' but as to item (7), Rs. 254-9-8 paid in cash, there is no recital at all. When a lender is dealing with a borrower who is not absolute owner of the estate mortgaged as security for the loan, it is, no doubt, incumbent on the lender to satisfy himself by reasonable enquiry that the loan is for the benefit or the necessity of the estate, for, otherwise, his charge on the estate in the hands of the next holder is liable to be defeated, but it has been remarked by their Lordships of the Privy Council in Hunooman Persaud Panday v. Mussummat Babooee Muuraj Koonwaree (1856) 6 M.I.A. 393 'Their a Lordships think that the question, on whom does the onus of proof lie in such suits as the present, is one not capable of a general and inflexible answer,' and later on, ' the representations by the manager accompanying a loan as part of the resgestm and as the contemporaneous declarations of an agent have been held to be evidence against the heir and as their Lordships are informed that such prima facie proof, has been generally required * * * * * they think it reasonable and right that it should be required * * * It is obvious, however, that it might be unreasonable to require such proof from one not an original party after a lapse of time and enjoyment and apparent acquiescence.' Later on in the same judgment, their Lordships lay down the principles which should govern the case, and remark : 'The lender is bound to enquire into the necessities for the loan * * * but they [i. e., their Lordships] think that, if he does so enquire and acts honestly, the real existence of an alleged and reasonably credited necessity is not a condition precedent to the validity of his charge * * * and he is not bound to see to the application of his money.' The case under consideration by their Lordships was one of a charge created by a mere manager or de facto owner of an estate, and their remarks would apply, with even greater force, to the present case where the borrower was full owner of the estate charged and only liable to be divested of his estate by an adoption. It is clear that the representations of the borrower are evidence of the necessity for the loan and may in certain cases be treated as prima facie proof as between the lender and the heir. The question was recently considered by Abdur Rahim and Krishnasawmi Aiyar JJ. in Maharaja of Bobbili v. Raja Kaminayini Bangaru (1910) 21 M.L.J. 593 and they remarked that the representations of the borrower ' may in particular circumstances be sufficient to shift the onus from the lender to the person impeaching the alienation.' This view certainly appears to be warranted by the dictum of the Privy Council in Hanuman Persaud's case (1856) 6 M.I.A. 393. In the present case, the plaintiffs are not the actual lenders but merely their heirs, and some 13 years have elapsed between the execution of the bond and this suit. The recitals in the bond are, in themselves, evidence as to the necessity for the loan, and the plaintiffs have been able to show that a large portion of the loan was borrowed for the family necessity and therefore, so far as the remainder is concerned, I think it may fairly be held in this case that the proved or admitted facts throw the onus of proof on the defendants. A large proportion of the loan was borrowed for purposes binding on the family, and it would therefore be only reasoneable to presume that the balance was also borrowed for the same purpose on the strength of the recitals in the mortgage-deed and the absence of satisfactory evidence to the contrary. Even if I am wrong in this view, I agree with the conclusion of the learned Chief Justice that an adopted son cannot defeat an alienation made before his adoption by a full male owner of the estate. The further plea taken for the plaintiffs that, as Sivathaiya was the holder of an impartible estate, his alienations cannot be questioned by the 2nd defendant, must also be upheld in view of the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari I.L.R. (1882) A. 272 which was affirmed in the Pittapur case I.L.R. (1899) M. 383 in both of which cases it was held that inalienability of an impartible estate must be proved by custom. No such custom has been proved in the present case and not much weight can be attached to the appellant's vakil's objection that this point was not taken in the lower court. The question of impartibility was raised in the lower court and consequently all legal incidents attaching to the tenure set up must be held to have been in issue. The appellant must be presumed to have been aware of the law laid down in regard to impartible estates, and cannot now plead his ignorance on the point.
32. The validity of the and defendant's adoption is impeached (a) because the consent of the sapindas as given in Exhibit I was not a valid consent as the motive for the adoption Was corrupt, and (5) because the adoption was not to the last male holder.
33. The first objection cannot be supported as it has repeatedly been laid down that so long as the assent of the kinsmen is valid, the adoption is valid--The Collector of Madura v. Mootoo Ramalinga Sethupathy (1860) 12 M.LA. 397 Sri Varada Pratappa Raghunada Deo V. Sri Brozo Kishoro Patta Deo I.L.R. (1876) M. 69 and Vellanki Venkala Krishna Rao v. Venkata Rama Lakshmi I.L.R. (1876) M. 174 respectively. In this case it is not contended that the assent was given from corrupt motives.
34. The second objection is the more important one. It was held by the Privy Council in Bhoobun Moyee's case2 that the adoption by a widow after her husband's estate had vested successively in his son and his son's widow, wag invalid.
35. As explained in the subsequent cases, Thayammal v. Venkata rama I.L.R. (1887) M. 205 and Padmakumari Debt Chowdhram v. Court of Wards I.L.R. (1881) C. 302 not only is such an adoption invalid but the widow's power to adopt is determined on the happening of certain events. The rule to be deduced from these cases appears to be, that, when an estate is divested by an adoption not made to the last male holder but to a prior male holder of the estate, the adoption is not valid and does not divest the existing holder of the estate This rule has been applied by the Privy Council in cases where the parties were governed by Dayabhaga Law and in cases under the Mitakshara Law where the property was separate property and not joint undivided property, but it has not been laid down that it is inapplicable to joint family property under Mitakshara Law and the Advocate General contends that it should also be applied in such a case. It was so applied by this court in Rathna Mudaliar v. Raghunadha Battar : (1898)8MLJ173 and in Adivi Suryaprakasa Rao v. Nidamurty Gangaraju I.L.R. (1909) M. 228 but in the latter case the property had vested at the date of the adoption in the widow of the last male member of the family and was no longer joint family property. In this case, however, the finding that the estate was impartible somewhat alters the case. The succession to an impartible estate is not by survivorship ; for it has been held that a co-parcener in an undivided family has no interest in an impartible estate until the holder's death. Although the successor must be sought amongst the survivors of the undivided family, the succession is not by survivorship but by inheritance. I think, therefore, that the rule in Bhoobun Moyee's case (1865) 10 M.I.A. 279 would clearly be applicable here, for the effect of the adoption to No. 14, if it were effective, would be to divest the present holder (1st defendant) who has succeeded by inheritance to No. 18, Sivathaiya, who himself succeeded No. 14. In this view I am inclined to hold that the adoption would be invalid, but I agree with the learned Chief Justice that the question need not be decided in this case.
36. In view of my finding that the family of Nos. 14 and 18 was undivided, it is unnecessary to consider what would result if the estate had vested in defendants Nos. 6 and 7 on No. 14's death and had been transferred by them to No. 18.
37. The only remaining point for consideration is the question of interest. The plaint bond stipulates for an enhancement of the rate of interest from 12 to 15 per cent, from date of default and also for compound interest with yearly rests. In Abbakke Heggadthi v. Kinhiamma Setty I.L.R. (1906) M. 491 a very similar stipulation was held not to be by way of penalty and the Privy Council ruling in Sundar Koer v. Rai Shorn Krishen I.L.R. (1906) C. 150 lays down no rule to the contrary. The Subordinate Judge has found as a fact that the stipulation here was not by way of penalty, and I see no reason to differ from his finding. I therefore agree that the appeal should be dismissed with costs.