1. The judgment of the District Judge is not so full as might be desired, but there is a clear finding by the District Munsif in favour of the adoption and the District Judge accepts the finding. It is then argued that the adoption is not valid, because defendant No. 2 was the father's brother's son of defendant No. 1, and that, under the law of Niyoqa, the nephew could not be appointed to beget issue on his paternal aunt. Our attention is drawn in this connection to the cases of Sriramulu v. Ramayya I.L.R. 3 Mad. 15 and Minakshi v. Ramanada I.L.R. 11 Mad. 49. In these cases the law of appointment was referred to explain and account for the existing usage and law in regard to adoption. But in the case before us no exception was taken to the adoption in either of the Courts below on the ground that it was contrary to the usage obtaining among the people, nor was any evidence recorded on the point. Having regard to the observation of the Privy Council in Collector of Madura v. Mootoo Ramalinga Sathupathi 12 M.I.A. 397 we are not at liberty to refer to the ancient practice of Niyoga, which is obsolete, or to engraft a rule on the Hindu law as evidenced by the usage of the people. We cannot, therefore, allow the contention to prevail. Another contention is that defendant No. 10 died pending the suit, and that therefore the plaintiff became entitled to a moiety instead of quarter only of the property. But we observe no additional issue was recorded after the tenth defendant's death as to whether the instrument of gift set up by defendant No. 11 was valid, and if not, whether with reference to Section 43 of the Transfer of Property Act, a moiety would pass to the plaintiff under the instrument of sale sued on. The District Judge must be called upon to return a finding within six weeks from the date of the receipt of this order, and seven days will be allowed, after the posting of the finding in this Court, for filing a memorandum of objections.
2. In compliance with the above order, the District Judge returned a finding as follows:
The High Court call for a finding upon the issue whether an instrument of gift set up by defendant No. 11 was valid, and, if not, whether, with reference to Section 43 of the Transfer of Property Act, a moiety would pass to plaintiff under the instrument of sale sued on.
In this suit it is not alleged by the plaintiff that the instrument of gift set up by defendant No.11 is not genuine. The defendant No. 10 filed his answer in this suit in November 1886, and he filed the deed of settlement giving his share to defendant No. 11, which was dated in March 1886. It is therefore not contended that the document is fabricated. The only question is whether it is valid.
The findings in the suit show that defendant No. 10 was a co-parcener with defendant No. I in a united Hindu family. He alienated his share to his daughter, not for value, but in consideration of natural affection. Bearing in mind the Full Bench decision, in Baba v.Timma I.L.R. 7 Mad. 357 and its application in Ponnusami v. Thatha I.L.R. 9 Mad, 273 to a gift made to daughter's children, I am compelled to find that this alienation is invalid.
The effect of Section 18 (a) of the Specific Relief Act and Section 43 of the Transfer of Property Act is that this moiety claimed by defendant No. 11 must pass to defendants Nos. 1 and 2, and that the plaintiff is entitled to recover one-half of the property instead of one-fourth which was given him by the decree of the District Munsif.
3. This second appeal coming on again for final hearing, the Court delivered judgment as follows:
4. It is urged that the respondent had no notice of the day on which the further hearing should take place. But it is not alleged that notice of the day was not affixed to the notice board in the ordinary way. He had notice of the order referring the case. We accept the finding, and must modify the decrees of the Courts below by substituting one-half for one-quarter of the lands mentioned. Proportionate costs in this and in the Courts below.