1. The Judgment of my learned brother which I have had the advantage of reading has so fully set out the facts and issues for determination in this case that I do not propose to repeat them. I am in complete concurrence with all his conclusions on the issues of fact and I propose to add nothing with regard to points 2 and 3 which relate to the question whether in the case of item 1 of schedule C the property concerned is that of the first plaintiff or of Deivanai and in the case of items 1 to 4 of schedule D whether the properties belong to Deivanai or to the joint family. With regard to the question of fact as to whether the adoption of Subramaniya by the first defendant has been proved, I consider that apart from the oral evidence the documents support the allegation that the adoption was carried out
[After reviewing the evidence on this question His Lordship proceeded]
2. With regard to the question of law involved, it is important, first to consider whether the learned Judge's conclusion relating to the custom alleged by the plaintiff is correct. That conclusion is to be found in paragraph 84 of the judgment and reads as follows:
I find that the custom of reverter alleged by the plaintiffs in paragraph 21 is true and valid to the extent that presents and moneys proved to have been given by the members of the parental family and their relatives revert to the parental family and the presents and moneys given by the husband's family and their members revert to the husband's family.
3. But was that custom pleaded in paragraph 21 of the plaint? The effect of the authorities seems to be that a custom must be proved to be certain, reasonable, immemorial and without interruption and each of these circumstances should be alleged in the plaint. It is convenient to set out that part of paragraph 21 of the plaint which purports to plead the custom on which the plaintiffs rely. It is as follows:
According to the custom of the Nattukottai Chettiar community to which the plaintiff and defendants 1 to 3 in particular, belong, the first plaintiff has become entitled at the moment of said Deivanai Achi's death to all the things left by her and referred to in schedules E and F as well as the properties mentioned in G and D schedules if for any reason they also can be said to have belonged to or have been left by her as her effects when she died and all other properties which may hereafter be established or proved to have been left by her by the right or the principle of reverter. According to the binding and immemorial custom of Nattukottai Chettiar community, if a Nattukottai Chettiar woman dies leaving behind her no child or children born to her or any son adopted to her and her husband prior to her death or any lineal descendant or descendants by any such child or children or adopted son, the stridhanam, seermurai and other siruvattu monies and properties of whatever nature they may be whether jewels, vessels, cloths, etc., presented or given to her either at the time of the marriage by her parents' family or relatives or on subsequent numerous occasions in accordance with the general usage, practice or custom of the community or acquired by her from her parents house or other relations in any manner whatsoever except any property that might have been acquired or got directly from her husband's family and all accumulations descend and go to her father or the father's child or children adoptive or natural or his or their lineal descendants, if any, surviving her by right of reverter.
4. I omit the rest of the paragraph as it is more in the nature of an argument than in the nature of a pleading. The important allegation is that, according to the binding and immemorial custom of the Nattukottai Chettiar community, if a Nattukottai Chettiar woman dies leaving behind her no child or children born to her or any son adopted to her and her husband prior to her death or any lineal descendant or descendants by any such child or children or adopted son, the stridhanam and other properties given by her relatives or by per parents or it would seem by anyone at any time other than her husband's family descend and go to her father or his family. The only exception is property derived from her husband's family. I again stress the words ' or any son adopted to her and her husband prior to her death ' and especially the words ' prior to ' which of course raised the all important point in this case. The plea seeks to exhibit an important addition to the custom of descent of property among Nattukottai Chettiars as recognised by this Court and I do not consider that the evidence is such that the addition to the custom pleaded has been proved. In so far as the customs amongst this community have been accepted, two decisions of this High Court are in point. Madha-van Nair, J., (as he then was) delivering the judgment of the Bench held in Official Assignee of Madras v. Muthayee Achi (1937) M.W.N. 493, that the following custom had been proved by unimpeachable evidence:
The amounts of the gifts are handed over to the senior male member of the bridegroom's family in the shape of hundies drawn in favour of the bridegroom by the senior male member of the bride's father's family for the amounts. They are so handed over to him for his making them accumulate by lending them out for interest. He invests them in the money-lending shop of his family if that family has one, and in some other shop if his family has none or if the shop of that family is not financially sound or if the bride's father's family so desires. Interest is allowed on them at the rate current in Rangoon adding it to the principal amounts and interest, is payable to the bride on demand during her lifetime and is taken by the children of the marriage if any are left when the bride dies and by her father's family otherwise.
5. Wallace and Jackson, JJ., in Palaniappa Chettiar v. Chockalingam Chetti : AIR1930Mad109 , stated as follows:
It seems clear that there is a custom having the force of law by that, if the daughter of the family dies issueless, the stridhanam will revert to her parents, but there is at present no clear custom having the force of law by which such reverter occurs when the daughter has issue and dies leaving issue. There is no certain custom in such a case governing the destiny of the stridhanam, and that destiny is apparently being decided by mutual arrangement sometimes one way, sometimes another.
6. The learned Judges were concerned to consider this topic as it was contended before them that the stridhanam reverted to the parents even when the daughter had female issue and that female issue died without issue. I accept the position that these decisions establish the custom therein stated. But neither of these cases nor any of the others cited to us establishes that the reverter to the parents operates so as to exclude a son adopted after the daughter's death. The all important question, namely, whether a son adopted after the daughter's death is to be treated as being in the same position as a son adopted before her death is the very point which we have to decide now. The introduction of the words ' prior to her death ' in the pleading shows that the plaintiffs were fully conscious of the extent of the custom which it was incumbent on them to prove. The written statement of the second defendant explicitly denied the custom and pleaded that according to the custom obtaining among the Nattukottai Chetti community an adoption made to a deceased lady is perfectly valid and will vest all her properties in the, adopted son even if they had vested already in others. This custom also has not been established by the appellants but that does not affect the decision in this case. The ultimate decision will rest on the law and not on custom.
7. I am concerned with the question of law as I do not agree with the finding of the learned Judge relating to the plaintiff's alleged custom. With all respect to the learned Judge I consider that his finding in paragraph 84 does not deal with the very precise pleading in paragraph 21 of the plaint. There is no allusion to the position which arises in the case of an adoption after the daughter's death. I need not repeat in full the analysis by my learned brother of the evidence to prove the plaintiff's alleged custom.
8. Of the nine witnesses called, the learned trial Judge expressly states that he derived no assistance from the evidence of P. Ws. 2, 4, 6 and 7. I entirely agree that the very slender evidence which remains does not prove the custom alleged. Indeed, it hardly touches it, if at all. There was no evidence as to what was the custom on facts such as are now before us. In paragraph 41 of his judgment the learned Judge expressed the view that:
On the question of the custom of devolution set up by the plaintiffs there is no difficulty in holding on the evidence adduced, that the custom is that whatever has been given to the bride at the time of the marriage and thereafter by the members of the parental family and their relatives reverts to the parental family, and that whatever has been given by the husband's family and their relatives reverts to them.
9. But this does not decide the point as it disregards the words ' adopted. . prior to her death.' I am unable to find in the record evidence proving the custom pleaded by the plaintiffs and accordingly must differ from the finding on this topic by the learned Judge. It is necessary therefore to approach the legal position on the basis that no custom has been proved which assists me in determining the point of Hindu Law involved which seems to me to be this : In the case of an adoption after the death of the adoptive father's wife, does the stridhanam and other properties acquired by the latter other than from her husband's family revert on her death to her father's family or descend to the adopted son. It follows too that it is necessary to decide whether property vested in members of her father's family becomes divested in the event of an adoption after her death by her husband, which is what happened in this case.
10. So far as the position of an adopted son in the family of the adopter is concerned, there is an authority of the Judicial Committee in Padmakumari Debi Chowdhrani V. Court of Wards :
An adopted son occupies the same position in the family of the adopter as a natural-born son, except in a few instances, which are accurately defined both in the Dattaka Chandrika and Dattaka Mimamsa, the authorities that govern the decision of questions of adoption arising in the Bengal School. And no text has been produced to show that an adopted son cannot succeed to the estate of such relatives of his father as are sprung from a different family.
11. In the absence therefore of any special custom, which has been negatived in this case, the adopted son will have the same rights of inheritance, his existence as a son taking effect as at the time of his adoptive father's death. Mr. Ameer Ali delivering judgment in Pratap Singh Shiv Singh v. Agarsinghji Rajasangji (1918) 36 M.L.J. 511 : 1918 L.R. 46 IndAp 97 : I.L.R. 43 Bom. 778 observed
Now it is an explicit principle of the Hindu Law that an adopted son becomes for all purposes, the son of his father, and that his rights unless curtailed by express texts are in every respect the same as those of a natural born son.
12. In Sankaralingam Pillai v. Veluchami Pillai : AIR1943Mad43 , Leach, G.J. delivering the judgment of the Full Bench summarised the arguments in favour of a right in the adopted son to demand his share in the family estate, notwithstanding that the other coparceners have already partitioned, and they are as follows:
(i) It is a rule of Hindu Law that an adoption dates back to the date of the death of the father.
(ii) There is no reason why an adopted son should be placed in an inferior position to that of the posthumous son, the heir of a disqualified person and the absent coparcener.
(iii) The right of the adopted son to demand re-partition has been recognised in two cases; Krishna v. Sami I.L.R. (1885) Mad. 64 and Bqji Rao v. Ramakrishna I.L.R. (1941) Nag. 707.
(iv) There is support to be found for the proposition in Strange.
(v) As an adoption divests an estate of inheritance it would be unjust to deny to the adopted son the right of claiming a re-partition when the rule of survivorship applies.
13. Holding that an adopted son was entitled to re-open a partition made by the members of the family after the death of the coparcener but before the adoption, the Full Bench held that the adoption was the over-riding factor and restored the position so far as the partition was concerned, subject to lawful alienations in the meantime. That the adopted son is bound by such alienations appears to be the only limitation of his rights and all other properties which had come into the hands of those who took part in the partition reverted to the adopted son. The legal position of the adopted son is therefore established by the highest authority so Jar as his position vis-a-vis his adoptive father is concerned. It is, however, argued before us that the position is not the same vis-a-vis his mother, or to put it in another way, the wife of his adoptive father. In the case before us, no complication arises from the fact that Subramaniam had more than one wife. Deivanai who died on 28th August, 1938, was his sole wife. Subramaniam, the first defendant, adopted the second defendant, whose name is also Subramaniaya, on 7th of June, 1939, and it is argued that the second defendant although having a father never had a mother and therefore could not succeed to Deivanai's estate.
14. The decisions referred to above assist in solving this difficult question. The case of Sundaramma v. Venkatasubba Ayyar,J. : AIR1926Mad1203 has a direct bearing upon it as the judgments contain important observations by Phillips, J. and Madhavan Nair, J. (as he then was) respectively which discuss the general position of a son adopted by the widower after his wife's death Phillips, J., discussing the decision of the Privy Council in Narasimha v. Parthasarathy (1914) 26 M.L.J. 411 : 1914 L.R. 41 IndAp 51 : 1914 I.L.R. 37 Mad. 199 (pc) took the view that if the son can be deemed to be the natural and legitimate son of his father, by the same fiction he would be the son of his father's wife also, and at page 951 Madhavan Nair, J., observed:
To give full effect to the fiction of adoption and to assimilate the fact to an imitation of nature the adopted boy should have a mother. I do not think it is impossible to conceive the deceased wife as the fictional mother of the adopted child. The theory of a ' receiving mother ' being discarded, I cannot find any difficulty in holding that the wife of the adoptive father though she was dead at the time of adoption can be considered as the adoptive mother.
15. There is therefore authority binding upon me which goes some way towards the solution of this case. It seems to me to amount clearly to this, namely, that an adopted son does become the son both of his adoptive father and his adoptive father's deceased wife. When dealing with fictions, I cannot see why decisions arising out of fiction should not be carried to their logical conclusion. In Amarendra Mansingh v. Sanatan Singh which concerned the validity of an adoption, their Lordships at page 656 and 657 emphasised, after consideration of the case law, that it would not be possible to say that the sole test of the validity of an adoption is the vesting or divesting of property and at page 657 observed:
It necessarily follows (their Lordships think) from this decision [Pratap Shivsingh v. Agarsinghji Rajasangji (1918) 36 M.L.J. 511 : 1918 L.R. 46 IndAp 97 : I.L.R. 43 Bom. 778] that the vesting of the property on the death of the last holder in someone other than the adopting widow, be it either another coparcener of the joint family or an outsider claiming by reverter, or, their Lordships would add, by inheritance cannot be in itself the test of the continuance or extinction of the power of adoption.
16. In the present case, there is no question of the power to adopt. It would seem that their Lordships took the view that material considerations should take second place to the spiritual considerations which are the basis of the Hindu Law of adoption. The latest decision of the Judicial Committee relating to divesting is Anant v. Shankar (1943) 2 M.L.J. 599. The following is the genealogical table in that case:
Ponnappa, d. 1901. Hanumantappa.
| | |
Gundappa, d. 1902. Narayan, d. 1908. Ramachandra.
Bhikappa, d. 1905 : Ganga Bai |
| | | |
| Shankar (Deft.). Hanamant. Babu.
Keshav, d. 1917. Anant, adopted 1930 (Plff.).
17. At the time of Keshav's death, his nearest heir was the defendant Shankar, a remote collateral, who obtained possession from the Collector in 1938. The adoption in 1930 of Anant by Ganga Bai resulted in a suit by Anant through Ganga Bai as his next friend. The plaintiff succeeded before the trial Judge and obtained a decree for possession and for a declaration that he was the lawfully adopted son of Bhikappa and as such the heir of Kesha v. The High Court set aside the order for possession and mesne profits and qualified the declaration by adding the words ' except as regards the watan property which has already vested in the defendant' The High Court took the view that as the coparcenary had come to an end on the death of Keshav in 1917 and the family property had then vested in his heir the subsequent adoption in 1930 though valid would not revive the coparcenary or divest Keshav's heir, the adopting widow not being herself Keshav's heir. Their Lordships allowed the appeal and in the course of the judgment observed as follows at page 675:
If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his more remote than a natural brother would have been and to constitute the adopted person the next heir of the last male owner, no distinction can in this respect be drawn between the property which had come to the last male owner from his father and any other property which he may have acquired. Keshav's separate watan property devolves not on his mother who would be his heir at the general law but on the nearest male in the line of heirs; and if the plaintiff's adoption as son to Bhikappa puts him in that position, his right to succeed cannot be limited to such watan property as Keshav derived from Bhikappa. On this ground the appellant's suit succeeds as regards the two parcels of land which Keshav inherited from Narayan.
18. The whole subject of divesting is discussed by the learned editor of Mayne's Hindu Law, 1938 Edition, at pages 234 and 235. As already stated, the exact position before us now has not been the subject of judicial determination but from a consideration of the authorities, if it is correct to premise that the second defendant is the son of Deivanai for all purposes, I feel constrained to hold that by his adoption he was entitled to the properties of the deceased Deivanai and that any properties which vested in the plaintiff become divested. I would add my agreement with my learned brother's view that, with regard to the properties other than those which are clearly stridhanam in character, there is no evidence to show from what source Deivanai derived the funds. I am also in general agreement with the conclusions arrived at by my learned brother and the order proposed.
Kuppuswami Ayyar, J.
19. The appellant is the second defendant. The first respondent is the first plaintiff and the second respondent is the father of the appellant and the first defendant in the suit. The second plaintiff, the wife of the first plaintiff (first respondent) is not a party to this appeal, and her claim as set forth in the plaint was disallowed. She has not filed any appeal. The third defendant the adoptive mother of the first plaintiff, is dead and no legal representatives have been brought on record as the first plaintiff claimed to be her heir. The names of defendants 4 to 13 who were some of the debtors in respect of the outstanding which were the subject-matter of the litigation were struck off on the ground that they were unnecessary parties and they have not been made parties to this appeal. The subject-matter of the suit consisted of several items of moveable and im-moveable properties and outstandings described in Schedules A to F of the plaint
20. The suit so far as the items described in Schedules A, B and E of the plaint except item 6 of schedule B as also the suit in respect of items 5 to 8 of schedule F of the plaint has been dismissed. A decree was passed only in favour of the first plaintiff and that in respect of item 6 of Schedule B, items 1 to 4 (a) of F schedule and the items shown in schedules G and D. In the memorandum of appeal, it is specifically stated that item 2 in schedule G is not in dispute in this appeal. With regard to item 6 of schedule B, the decree was passed against the first defendant; he has not filed any appeal, nor has he filed any memorandum of cross-objections. Thus, the appeal relates only to item 1 of Schedule G, the four items in Schedule D and items 1 to 4 and 4 (a) of schedule F.
21. The first plaintiff was taken in adoption by the third defendant, the widow of the late Shanmugam Chetty alias Palianiappa Chetty on 27th May, 1936. The second plaintiff is his wife. Shanmugam Chetty died in October 1928, leaving behind him his widow Egammai Achi, the third defendant, and a daughter by name Deivanai Achi. The first defendant (the second respondent) married Deivanai more than thirty years prior to the suit. Shanmugam Chetty was blind of both eyes and the first defendant, the son-in-law, was helping him in writing the accounts, etc., and was generally in management. After his death, as Egammai was an illiterate woman, the first defendant, the husband of Deivanai, her only daughter, was practically managing the properties and investing the income at his will in the names of Deivanai and Egammai. After the first plaintiff was adopted by Egammai he and his wife lived in the family house for some time; but misunderstandings arose and when the plaintiffs were away, defendants 1 and 3 and Deivanai closed the front door of the house and locked it and removed all the valuables, account books, etc., to the house situated in item 1 of Schedule C which was behind the family house. Subsequently, Deivanai fell ill and died on 28th August, 1938 leaving no children. It is the plaintiff's case that on the death of Deivanai, all stridhanam properties given to her by her parents and their relations devolved, by a custom of reverter prevailing in the Nattukottai Chetty community to which they belonged, on the paternal family. The plaintiffs, therefore, claim that all the properties which are the subject-matter of litigation which stood in the name of Deivanai were either the properties of the first plaintiff's family or if they were the properties which had their nucleus in the gifts by the parents and their relations to Deivanai, they reverted to the family of the first plaintiff on Deivanai's death. The properties mentioned in schedules C, D, E and F which were claimed to be properties of Deivanai were settled on the second plaintiff by the first plaintiff under a document, dated the 6th June, 1939, Exhibit P-12, which has not been printed. The plaintiffs, therefore, prayed for a decree directing defendants 1 to 3 to render a true and proper account of the management of the properties of the first plaintiff's family and to furnish a true inventory of all the properties and other documents relating to the family and for recovery of such properties as may be found to be family properties and the properties described in schedules A and B of the plaint. There was also a prayer for a declaration that the properties mentioned in schedules G and D of the plaint were part of the family properties of the first plaintiff and for a decree for recovery of item 1 of schedule C and for an injunction restraining defendants 1 to 3 from obstructing the plaintiff in his possession and enjoyment of item 2 of schedule G. Schedule D consisted of four items of outstandings, and the prayer was for a declaration that they were the joint family properties of the first plaintiff and for an injunction restraining defendants 1 to 3 from realising or dealing with any of the outstandings or securities or shares referred to in schedule D of the plaint. With regard to the properties mentioned in schedules E and F of the plaint, the prayer was for a decree declaring that the properties and investments mentioned in Schedules E and F belonged to the first plaintiff as having been obtained by him by the communal custom of reverter on the death of Deivanai leaving no issues at the time of her death, and for directing the first and third defendants to render a true and proper account in respect of those items.
22. The third defendant, Egammai, supported the plaintiff's case but pleaded that she was entitled to the properties of Deivanai in preference to the first plaintiff and that the first plaintiff would be entitled to them only after her death. She denied having had any hand in the management, pleaded that it was the first defendant alone that was liable to account and denied her liability to account to the plaintiffs.
23. Defendants 1 and 2 pleaded that the second defendant was taken in adoption by the first defendant on 7th June 1939, in accordance with the wishes of Deivanai expressed on the eve of her death. The custom of reverter pleaded was denied and it was further pleaded that it was the second defendant who would be entitled to the properties of Deivanai on her death as her adopted son. Items 1 and 2 of schedule C, the four items of schedule D and items 1 to 4 (a) of schedule F were claimed as properties of Deivanai inherited by the second defendant as her adopted son. With regard to item 1 of schedule C their case was that the western portion of it was given by the third defendant to the first defendant in 1914 with the con-currence of Shanmugam Chetty; that the building was put up on it by Shanmugam for the use of the first defendant the expenses of construction having been debited against him by Shanmugam in his account and that ever since then he had been in possession and enjoyment of it. The eastern portion of that item belonged to the first defendant, and he had enclosed it by a compound wall and put up a tiled shed on it. It was denied that any jewels were presented to Deivanai by her parents at the time of the marriage. The jewels made and purchased from out of the funds of the first defendant save those worn by her were all left with the mother Egammai Achi and the keys of the rooms which were all kept by the first defendant were with the plaintiffs and the third defendant.
24. The learned Judge found that the first defendant was not in management of the properties of the first plaintiff's family and that he was not bound to account. He also found that except item 6 of Schedule B which belonged to the first plaintiff and was handed over to the first defendant and which he was hence bound to return, the other items of schedules A and B were not in the possession of the first defendant. The two items in schedule G were found to belong to the joint family of the first plaintiff. With regard to the four items in schedule D, the finding was that they belonged to the late Deivanai and that on her death by the custom of reverter they devolved on the first plaintiff. He also found that the adoption of the second defendant by the first defendant as the adopted son of the late Deivanai was true and valid, but held that the adoption would not divest the first plaintiff of the estate of Deivanai and that therefore he, the first plaintiff, was entitled to the items shown in schedule D and to items 1 to 4 (a) of schedule F. It was found that the first defendant was not in possession of any of the items mentioned in schedule E of the plaint or of items 5 to 9 of schedule F. It was further held that items 1 to 4 and 4 (a) of schedule F were the properties of Deivanai and that the first plaintiff became entitled to them on her death. The learned Subordinate Judge found that the settlement deed in favour of the second plaintiff was not valid and that it would not operate as a bar to divesting Deivanai's estate by the second defendant if it be found that he will be entitled to divest the intermediate heir and obtain possession of her estate from him.
25. As already stated above, the second plaintiff has not filed any appeal, nor is she a party to this appeal. The finding of the learned Judge that item 1 of schedule C belongs to the joint family of the first plaintiff is disputed by the appellant. The first respondent disputes the findings of the learned Judge that D schedule properties belonged to Deivanai. The correctness of the finding about the truth and validity of the adoption of the appellant, the second defendant, is also disputed by the first respondent (the first plaintiff).
26. The main points for consideration in this appeal are:
(i) Whether the adoption of the appellant as the son of Deivanai is true and valid;
(ii) whether item 1 of schedule C belonged to the first plaintiff or was it the property of Deivanai;
(iii) whether items 1 to 4 of schedule D belonged to Deivanai or to the joint family of the first plaintiff;
(iv) whether the custom pleaded in paragraph 21 of the plaint is true and valid to any and what extent;
(v) whether the adoption of the appellant would divest the first plaintiff of the properties of Deivanai which vested in him on the death of Deivanai and vest them in the appellant; and
(vi) which of the properties described in schedules D and F of the plaint would vest in the first plaintiff on the death of Deivanai under the custom of reverter.
Point No. 1.--The learned Subordinate Judge has found that the adoption of the appellant by the second respondent on 7th June, 1939, is true and valid.
[His Lordship then discussed the evidence and proceeded.]
27. We therefore agree with the learned Subordinate Judge that the first defendant did take the second defendant in adoption on 7th June, 1939, and that there was the giving and taking by the natural parents and by the adoptive father respectively.
28. In Sundaramma v. Venkatasubba Ayyar : AIR1926Mad1203 , it was held that an adopted son of a Hindu whose only wife had died before the adoption became the son of that wife so as to inherit as such to the relations of her father's family. In Sounthara Pandian Ayyangar v. Periaveeru Thevan : AIR1933Mad550 , a Full Bench of this Court approved the above decision and held that such an adopted son of a Hindu widower became the adopted son of his predeceased wife. It was averred that the first defendant had a Vaduga wife and a son by her, but this was not proved. The first defendant, at the time of the adoption, was a widower with no children and he had married only one wife, the late Deivanai Achi. The learned Judge was hence justified in finding that the second defendant was validly adopted by the first defendant on 7th June, 1939, and that by the adoption he, the second defendant, became the adopted son of the late Deivanai Achi as well.
29. [The discussion on points 2 and 3 are omitted here as unnecessary for the purposes of the report.]
30. Points 4 to 6.--The next question for consideration concerns the person on whom the properties that belonged to Deivanai devolved on her death. Under the rules of Hindu law, the property of a Hindu woman devolves on her death in the following order: (i) Unmarried daughter, (ii) Married daughter who is unprovided for, (iii) Married daughter who is provided for, (iv) daughter's daughter, (v) daughter's son, (vi) son, (vii) son's son. If there be none of these, her stridhanam would go to her husband if the marriage is in an approved form and after him to the husband's heirs in the order of their succession to him. If she was married in an unapproved form it would go to her mother, then to her father, then to the father's heirs and then to the husband's heirs in preference to the Crown. In this case, there is no evidence that Deivanai was married in an unapproved form. She had no children. There were only her husband, her mother, and her adopted brother surviving. But her husband after her death adopted a son who became by the adoption her adopted son as well, as found above. Consequently, her husband would be, according to the general rules of Hindu law, the heir entitled to the properties if there had been no adoption subsequently. In any view of the case under the general rules of Hindu law when her husband survived her, her adopted brother, the first plaintiff, would have no rights to her properties. ' But it was pleaded in the plaint that among the Nattukkottai Chettiars to which community Deivanai belonged, there is a custom known as ' reverter ' under which,
If a Nattukkottai Chettiar woman dies leaving behind her no child or children born to her or any son adopted to her and her husband prior to her death or any lineal descendant or descendants by any such child or children or adopted son, the stridhanam, seermurai and other siruvattu monies and properties of whatever nature they may be whether jewels, vessels, cloths, etc., presented or given to her either at the time of the marriage by her parent's family or relatives or on subsequent numerous occasions in accordance with the general usage, practice or custom of the community or acquired by her from her parent's house or other relations in any manner whatsoever except any property that might have been acquired or got directly from her husband's family and all accumulations descend and go to her father or the father's child or children adoptive or natural or his or their lineal descendants, if any, surviving her by right of reverter.
31. It was pleaded on the strength of this custom that all the properties of Dei-vanai Achi except those that had been acquired or got directly from her husband's family devolved upon the first plaintiff, the only male member of her parents' family. The appellant and his father, the first defendant, denied that there was any such custom as pleaded in paragraph 21 of the plaint. On issue 9 which runs thus : 'Whether the custom of 'reverter' alleged by the plaintiffs in paragraph 21 of the plaint is true and valid?' the learned Subordinate Judge, gave the following finding in paragraph 84 of his judgment:
I find that the custom of reverter alleged by the plaintiffs in paragraph 21 is true and valid to the extent that presents and moneys proved to have been given by the members of the parental family and their relatives revert to the parental family and the presents and moneys given by the husband's family and their members revert to the husband's family.
32. It is rather unfortunate that the learned Subordinate Judge has not found specifically whether this result will follow only in the circumstances stated in paragraph 21 of the plaint, viz., if the deceased left no children or lineal descendants or no adopted son adopted by her and her husband prior to her death. He has not discussed the evidence with regard to this particular condition as to whether the custom of reverter would come into operation only if there had been no adopted son or descendants of any adopted son adopted before the woman's death. In short, the custom pleaded was that an adoption after her death could in no way affect the inheritance or reversion.
33. The matter is not covered by judicial decision and our attention is not drawn to any instance in which there has been any case of adoption of any son to a woman after her death by her husband whose claim to the properties of his adoptive mother had been denied or refused.
[Then his Lordship discussed the evidence and proceeded.]
34. It cannot therefore be said that the plaintiff has proved there could be any scope for the application of this custom of reverter in cases where there has been an adoption to the woman after her death by her husband. In this view it will be unnecessary to go into the question if the custom as found by the learned Subordinate Judge had been validly established or not.
35. There is one circumstance which goes to disprove the custom pleaded by the plaintiff that there will be a reverter in the absence of an adopted son adopted in the lifetime of the deceased woman. According to D.W. 1, even in her lifetime shortly before her death the late Deivanai. desired to adopt the appellant as her son and requested his father to give the boy in adoption and that the adoption took place only in pursuance of her wish. The learned Subordinate Judge has accepted this version of D.W. 1, and it is also in evidence that it was the appellant that performed the funeral ceremonies of Deivanai. The general trend of the evidence of the plaintiff's witnesses who were examined to prove the custom about the reverter was to the effect, that all disputes relating to the deceased's estate would be raised and settled usually before the removal of the corpse of the woman to the cremation ground and that the properties also will be handed over to the woman's paternal family before the completion of the funeral ceremonies. P.W. 2 in particular has given evidence on this point. If it was a fact that an adoption subsequent to the death of the woman would not vest the property of the woman in such subsequently adopted son, there could have been no difficulty for the first plaintiff to have obtained from the first defendant the properties of Deivanai which would devolve on the first plaintiff by the custom of reverter on her death without issues. There is no evidence to show that there was any talk or any attempt then to obtain the properties of Deivanai from the first defendant or Egammai Achi. It is the consciousness of the fact that the woman had already desired that the second defendant should be adopted and that he would be adopted and that on such adoption the properties would go to him that would account for the first plaintiff not following the usual practice prevalent among Nattukkottai Chettiars of having this matter decided and settled even before the corpse was removed to the cremation ground and obtaining 'possession of the properties and documents before the termination of funeral ceremonies. This is a circumstance which goes to disprove the plaintiff's contention that a subsequently adopted son will not be entitled to succeed to the properties of his adoptive mother.
36. Even if the custom as found by the learned Subordinate Judge is true and valid, the first plaintiff can claim a right only to those properties proved by him to have been given by the parents. The custom as found by the learned Judge relates only to two sets of properties of a Nattukkottai Chetti woman, namely, those given by her parents and their relations and secondly those that are given by her husband and her relations. The first plaintiff cannot succeed to any of the properties which are the subject of this appeal under this custom without proving that they were either given to Deivanai by her parents or their relations or were subsequent accretions of such gifts. As pointed out above, it is only in respect of items 1 and 2 of schedule F that there is evidence to prove that they were stridhanam properties of Deivanai given to her by her parents. In respect of items 2 to 4-0 of schedule F and in respect of items 3 and 4 of schedule D, there is no evidence to show as to how Deivanai was able to get the funds. With regard to items 1 and 2 of schedule D, if they are the properties of Deivanai, the evidence goes to show that the money came in respect of those outstandings from her mother Egammai.
37. It was contended for the plaintiffs that the adoption of the appellant by his father after the death of Deivanai would not divest the property which had devolved on or reverted to the first plaintiff by the custom of reverter referred to above, as this is a case of adoption to a woman after her death and hence the adoption need not be given effect to as if the adoption had taken place in the lifetime of Deivanai herself. In Padmakumari Debi Chowdhrani v. Court of Wards , their Lordships of the Judicial Committee pointed out that an adopted son occupies the same position in the family of the adopter as a natural-born son, except in a few instances, which are accurately defined both in the Dattaka Chandrika and Dattaka Mimamsa. This was followed by the Judicial Committee in Kali Komul Mozumdar v. Uma Sunkar Moitra . In Pratapsingh Shivsingh v. Agarsing Rajasangji (1918) 36 M.L.J. 511 : 1918 L.R. 46 IndAp 97 : 1918 I.L.R. 43 Bom. 778 (P.C.), His Lordship Mr. Ameer Ali who delivered the judgment of the Judicial Committee in that case observed at page 793:
Now it is an accepted principle of the Hindu law that an adopted son becomes for all purposes the son of his father, and that his rights unless curtailed by express texts are in every respect the same as those of a natural born son . Again it is to be remembered that an adopted son is the conti-nuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line.
38. In that particular case, the dispute was as between an adopted son adopted after the death of the last owner and the person who claimed a right to the grantors' estate, when the grant of the property terminated on the death of the last male owner without any male issue and the property reverted back to the family of the original grantors. It was not a case of inheritance but a case of reverter, and it was held that a subsequent adoption would divest the original grantor and that the adoption must be considered to have been made in the lifetime of the adoptive father and that there will be a divestment. In Sankaralingam v. Veluchami : AIR1943Mad43 it was pointed out that it was a rule of Hindu law that the adoption dates back to the date of the death of the father, that there was no reason why an adopted son should be placed in an inferior position to that of the posthumous son, and that such an adoption would divest an estate of inheritance already vested. It is only by applying these principles of law it was held in that case that subsequently adopted son could ask for a re-opening of a partition effected in the jiont family before he was adopted. In Anant v. Shankar (1943) 2 M.L.J. 599, which is the latest case on the point, the Judicial Committee, following the decision in Amarendra Mansingh v. Sanatan Singh held that a subsequent adoption would vest the property in the adopted son displacing any title based merely on inheritance from the last surviving co-parcener. In that case, On the death of Keshab, the only son, of the adoptive father of the plaintiff who was adopted. subsequently by the mother of Keshab after his father's death under a power given by Keshab's father, not only the coparcenary property of which he was the sole surviving owner but also property inherited by him from his uncle Narayan devolved on one Shanker the defendant in the suit, a collateral cousin of Keshab. After the adoption of Anant, the plaintiff, he filed the suit not only in respect of the coparcenary property of which Keshab was the sole and surviving owner but in respect of the property inherited by him from Narayan, his uncle. It was held that in respect of both kinds of properties there was a divestment of the estate which vested in Shanker' on Keshab's death and that both properties on adoption vested in the plaintiff. It was also pointed out that the decisions in Bhooban Moyee's case (1865) 10 M.I.A. 279, as interpreted in Faizuddin Ali Khan v. Tincowri SahaiI.L.R. (1895) Gal. 565 was no longer good law after the decision of the Privy Council in Amarendra's case (1933) 65 M.L.J. 203 : L.R. 60 LA. 242 : 1933 I.L.R. 12 Pat 642 (P.C.). The only limitation to this divesting is in respect of properties already alienated before the adoption, as was pointed out in Veeranna v. Sayamma I.L.R. (1928) Mad. 398. Vide also the following observations at the bottom of page 124 in Sankaralingam Pillai v. Veluchami Pillai : AIR1942Mad338 made by Venkataramana Rao, J., after referring to the decisions in Sri Virada Pratapa Raghunatha Deo v. Sri Broso Kishore Patta Deo (1876) L.R. 3IA. 154: I.L.R. 1 Mad. 69, Veeranna v. Sayamma I.L.R. (1928) Mad. 398, and Bamundoss Mookerjee v. Mussamut Tarinee (1858) 7 M.I.A. 169.
The principle deducible from these decisions is that though the title of the adopted son dates back to the death of the adoptive father for inheriting or taking his adoptive father's estate, he takes the estate subject to the dispositions made within the competency of the person who was entitled to hold the said estate until his adoption.
39. In this case, though the adoption to Deivanai of the appellant was subsequent to her death it would take effect as if he had been adopted in the lifetime of Deivanai herself. As already stated above, there is no evidence to prove the custom alleged in the plaint that unless the adoption takes place in the lifetime of a Nattukottai Chetti woman the property will vest in the parents' family according to the custom. Under Hindu Law, the adopted son is in the same position as a natural son and unless there be any custom varying this rule of Hindu law--and in this case there is No. evidence of any such custom--the adopted son will be entitled to divest the estate which had already vested in any intermediate holder. In Pratap Singh v. Shivsingh Agarsingji Rajasingji (1918) 36 M.L.J.511 : L.R. 46 : IndAp 97 : I.L.R. 43 Bom. 778 his Lordship Mr. Ameer Ali, J., made the following observations:
Now it is to be observed that when a hereditary grant of the nature in dispute is made by a Hindu subject to the limitation that it shall be descendible in the direct male line, or, in other words, that it shall enure so long as the gratntees' male line lasts, the existence of the line must be determined' by the rules and provisions of the Hindu law, unless there be any custom varying those rules. The limitation itself is a variation of the Hindu law; where a further custom is alleged confining the line to natural born issue alone, it must be proved affirmatively and conclusively, and not derived from; implications.
40. It is contended that the fiction that the adoption should be considered to have taken place in the lifetime of the adoptive father should be confined to only adoptions by a Hindu widow after her husband's death and not to cases of adoption by a widower so as to make the adopted son the son of his deceased wife. It is true that there are no authorities on this point. But then that is no reason why this distinction should be made. Adoption itself is a fiction, and fictions play a large part in the law of adoption. In Sundararnma v. Venkatasubba Ayyar : AIR1926Mad1203 , Phillips, J., made the following observation:
Wherever possible, therefore, a mother should be found for the boy and the fact that such a mother died before the adoption can be no obstacle in view of the fictitious character of the whole principle of adoption.
41. Madhavan Nair, J., as he then was, in the same case observed at page 951:
As his adoption puts the adopted son in the place of a legitimate son as regards the rights of inheritance in the family of the adopter, he must be considered to be the heir to any rights arising after the adoption from his father's wife's position in his adoptive family, though she was not alive at the time of the adoption. To give full effect to the fiction of adoption and to assimilate the fact to an imitation of nature the adopted boy should have a mother. I do not think it is impossible to conceive the deceased wife as the fictional mother of the adopted child.
42. The learned Subordinate Judge has relied on the ruling of this Court in Govindaraja Pillai v. Mangalam Pillai : AIR1933Mad80 . It has no application to the facts of this case. There, a grant had to be construed. The intention of the person who executed the document had to be gathered and in construing in the document the words, 'if there is no issue, after your death, your brothers should take the properties,' were construed as excluding a later adopted son. That decision has therefore no application to the facts of this case.
43. Applying the principles of the above cited ruling, it has to be held that the adoption of the second defendant by the first defendant, must be given effect to as if the appellant was taken in adoption in the lifetime of Deivanai, and that he will divest all intermediate estates which had vested before his adoption subsequent to the death of Deivanai either by inheritance or by the application of the custom of reverter.
44. It is urged however for the first respondent that in this case since there has been an alienation of G to F schedule properties in favour of the second plaintiff, there could be no divestment. There will be some force in this argument if the second plaintiff had filed an appeal. She, the second plaintiff, the person in whose favour the settlement deed was executed by the first plaintiff, has not cared to file an appeal. So far as she is concerned, she cannot be granted any relief in this appeal. The learned Judge found that Exhibit P-14 did not evidence a bona fide alienation but was only a document got up to defeat the rights of the second defendant, and the learned Judge Was of the opinion that if it was a bona fide alienation it might be a good answer in the event of the second defendant being found entitled to divest the estate of Deivanai. He further stated:
But taking the circumstances under which it was executed, I cannot hold that the settlement deed even if true is valid so as to operate as a bar to divesting Deivanai's estate by the second defendant in the event of its being found that he is entitled to divest her estate and obtain possession of her properties from the heirs.
45. The alienation in Veeranna v. Sayamma I.L.R. (1928) Mad. 398 was also a gift and not an alienation for consideration. Whatever it be, that would not justify a decree in favour of the first plaintiff in respect of these properties, the lower Court having granted no relief to the second plaintiff in the suit. If the second defendant had been the plaintiff, and he had to sue for the establishment of his right in the properties, it would be different. The question now in this appeal is whether the learned Judge having found that the second plaintiff could not claim any rights as against the second defendant and others, was justified in finding that the first plaintiff had a valid title to the properties and giving a declaratory decree in his favour. It is therefore not necessary for us to go into this question as to how far the second plaintiff will be entitled to a decree. As already found above, it is only in respect of items 1 and 2 of schedule F there is evidence to show that they represent the properties given by the parents of Deivanai to her at the time of the marriage. That both were stridhanam in the stricter sense in which it is used is not disputed. But in respect of the other properties which have been found by us to belong to Deivanai, there is no evidence to show from whom Deivanai got the funds for making those investments, except in respect of items 1 and 2 of schedule D which we have found to be properties of Egammai. It is therefore not necessary to give any finding in this case as regards the class of properties to which the custom of reverter would apply, whether it would apply to seermurai, siruvattu and other properties as well. The evidence on this point is not only meagre but vague. Though a number of instances were given, there is no evidence as to what the nature of the properties concerned in those instances were, whether any of them can be said to be seermurai or siruvattu properties. Further, the only two cases relied upon to show recognition of this custom are Official Assignee of Madras v. Muthayee Achi (1937) M.W.N. 493 and Palaniappa Chettiar v. Chockalingam Chetti : AIR1930Mad109 . In the former case, the only question for consideration was whether there was a trust in respect of stridhanam given to a Nattukottai Ghetti woman which were invested in the name of her husband. It is true that there are observations therein to show that the trust was for the benefit of the woman and her issues. The question was not who were all the beneficiaries of the trust but whether there was a trust or not, and that case therefore has no bearing on the facts of this case. In the latter case, there is a reference to the custom, and the custom was said to exist only in the case of stridhanam properties presented to a girl by her parents at the time of her marriage. this Court was not prepared to extend that custom to other cases in the absence of sufficient evidence. In the case before us, there can be no doubt that in the absence of any issues or lineal descendants of a Nattukottai Chetty woman, her stridhanam, namely, presents made to her at the time of her marriage by her parents revert back on her death without any children or lineal descendants to the parents of the family. But I do not think that the evidence would justify the extension of this custom to other kinds of property, and further it is not necessary to give a finding on that point in view of our findings as to how and with what funds the properties which are (he subject matter of the appeal were acquired by Deivanai.
46. So far as items 1 and 2 of D schedule are concerned, they have been found to be the properties of Egammai. The plaint is based on the allegation that they were either the properties of Shanmugam or Deivanai. It is only on that basis that the first plaintiff has claimed them. But if they did not belong to Shanmugam or to Deivanai, the suit in respect of the same must necessarily fail. It is true that Egammai died subsequent to the suit and the first respondent is her adopted son. The learned Counsel for the first respondent stated that the appeal on this ground should be dismissed as regards items 1 and 2 of schedule D. But then the parties have not gone to trial on the basis that they are Egammai's properties. The cause of action for the same arose after the filing of the suit, and it is not for us to speculate about the pleas likely to be raised by the parties in respect of a claim based as heir of Egammai. It will not therefore be open to this Court to consider that question in this appeal.
47. In the result, the appealhas to be allowed only in respect of D schedule properties and items 1 to 4 and 4-a of F schedule and the suit in respect of them dismissed
48.The appellant and the first respondent will receive and pay proportionate costs in both the Courts.