1. The father of Lakshminarasa Reddi (grand-father of 1st plaintiff and 1st defendant) was taken into the family of 2nd defendant's father as Illatom son-in-law. Lakshminarasa Reddi died without male issue leaving two daughters, 1st plaintiff and 1st defendant. 1st plaintiff and her son claimed both by virtue of wills said to have been executed by Lakshminarasa Reddi and his wife and also by Hindu Law.
2. As no evidence was adduced on either side, the claim - so far as it was based upon the alleged wills - failed, and the only question now is whether 1st plaintiff is entitled to one-fourth (i.e.) half of the half-share of her late father. Both courts have decreed in her favour and defendants have appealed.
3. For the purposes of the present appeal it may be taken that the property was the property of 2nd defendant's father's family in which plaintiff's grand-father was an Illatom son-in-law. He was therefore entitled to equal rights therein with 2nd defendant's father, and the question is whether on the death of Lakshminarasa Reddi these rights passed by survivorship to the 2nd defendant. Ordinarily under Hindu law the relation of coparcenary of which the right of survivorship is an incident is only possible between descendants of a common paternal ancestor. In the case of Hanumantamma v. Rami Reddi, I. L. R 4 M 272 it was considered unsafe (p. 283) to infer, that the affiliation by Illatom is analogous to adoption in any other respect save in the circumstance that the Illatom son-in-law is regarded for purposes of inheritance as a member of the family into which he is admitted. In Ghenchamma v. Subbaya, I. L. R 9 M 114 an issue was sent as to whether there can be coparcenary between an adopted son and an Illatom son-in-law, but no evidence being produced it was held that in the absence of proof that the right of survivorship is an incident of custom it cannot be treated as such. The decision of Scotland C. J, and Innes J, in Mopur Audemma v. Dhamavarapu Subba Reddi, S. A. No. 103 of 1868 is no doubt in conflict with the later decisions, but no evidence was taken in that case, and it was inferred that there was coparcenary because the Illatom custom was a mode of affiliation.
4. We think it is not safe to attach to the usage all the incidents of adoption without specific evidence. We shall therefore ask the District Judge to try the following issue:
Whether according to Illatom custom the 2nd defendant excluded the daughters of Lakshtminarasa Reddi from succession and their father's undivided interest survived to the 2nd defendant?
6. In compliance with the above order the District Judge submitted his finding to the effect that the 2nd defendant had not proved that the right of survivorship was an ordinary incident of Illatom custom.
7. On return of the above finding of the District Judge the court (Collins C.J. and Parker J.) accepted it and dismissed the appeal.