Alfred Henry Lionel Leach, C.J.
1. In a suit tried on the Original Side the appellants challenged the validity of the adoption of the second defendant by Lakshmana Perumal, the -half-brother of the second defendant's mother. In the trial Court the factum of adoption was not disputed and in this Court it has been expressly admitted that the second defendant was adopted by Lakshmanaperumal on the 28th January, 1943. The adoptive father died on the 2nd April, 1944. The suit was filed on the 1st August, 1944, by Navaneethammal, the youngest half-sister of Lakshmanaperumal, and her son. Lakshmanaperumal had three half-sisters. The eldest, who is the sixth defendant, is the mother of the second defendant. The second is the seventh defendant, who supports the plaintiffs. The plaintiffs contended that the adoption was invalid because it offended against the rule of Hindu law which says that there can be no valid adoption unless a marriage were possible between the person for whom the adoption is made and the mother of the adopted boy in her maiden state. The rule only applies to the three regenerate classes, ' but as the parties to this suit are Vysias, they are within it. The plaintiffs also averred that there was a custom in the Vysia community prohibiting the adoption of a sister's son. The learned Judge found that there was no such custom, but he held that the contesting defendants had proved that there was a custom by which a Vysia could adopt a son of his sister and therefore the custom set at nought the rule of Hindu law on which the plaintiffs relied. In these circumstances he dismissed the suit. The plaintiffs have appealed.
2. In the Court below the plaintiffs laid some stress on a practice (referred to as Menarikam) which used to be followed in the Vysia community. It implied that a sister's son was regarded as the most suitable person to whom a father could give his daughter in marriage. Stress was laid on this custom because it was said that it in itself negatived the idea that a sister's son could be adopted. In this Court, Mr. Muthukrishna Aiyar, who has appeared in support of the appeal,has very fairly conceded that Menarikam no longer exists as a custom. For twenty-five years and more the Vysia community has not insisted on the practice of a man giving his daughter in marriage to his sister's son. Even if Menarikam still existed, it does not follow that a sister's son could not be adopted. It only means that if a sister's son were adopted, the adoptive father would be precluded from giving his own daughter in marriage to him. But we do not need to dwell on this aspect of the matter because Menarikam is no longer insisted upon and there is abundant evidence on the record in proof of the custom that Vysias do adopt the sons of their sisters.
3.Twelve witnesses were called to prove the custom set up by the contesting defendants that Vysias do adopt the sons of their sisters. Most of the witnesses were people of standing and there was very little in the nature of real cross-examination. Mr. Venkataramayya (D. W. 4),. an Advocate of this Court, deposed to the custom and he was not asked a single question in cross-examination. All the witnesses spoke to the existence of the custom and many of them gave instances where sisters' sons had in fact been adopted. The plaintiffs called six witnesses who gave evidence of a negative character, except one Bysani Krishnayya Chetty (P.W. 3) whose testimony renders support for the contesting defendants. He acknowledged that there was a custom in the Vysia community, of which he was a member, to adopt the sister's son. He denied, however, that it was customary to adopt a daughter's son. This latter statement cannot be treated seriously. If a sister's son can be adopted, there is no reason why a daughter's son should be in a different position. The learned Judge accepted the defendant's evidence in proof of the custom and we consider that he was fully justified in so doing. The volume of evidence in support of the adoption is considerable, and perhaps far more than was necessary. In delivering the judgment of the Division Bench which decided Sooratha Singa v. Kanaka Singa I.L.R. (1920) Mad. 867 where the question was whether an adoption of a brother's daughter's son was allowed by custom, Sadasiva Aiyar, J., said that by reason of an admission the burden of proving the adoption to be invalid was shifted on the shoulders of the other side; but even if this were not so, the custom against the supposed rule based on the text relating to the reflection of a son was so widespread that very little evidence would turn the scale against the rule. In the earliest edition of Strange's Hindu Law, there is this statement--
In practice, the adoption of a sister's son, by persons of all castes is not uncommon.
This statement was quoted with approval in the judgment of the Full Bench which in 1885 decided Vayidinada v. Appu I.L.R. (1885) Mad. 44. The statement in Strange in effect provides important corroboration of the oral testimony given in this case on behalf of the contesting defendants.
4. We may add that it is common ground that the adoption of a sister's son is recognised by custom in the Brahmin and the Kshatriya communities. The question, so far as the Kshatriya community is concerned, was discussed in the judgment of this Court in the recent case of Simhadri v. Satyanarayana : AIR1945Mad487 . It was there expressly held that by reason of custom prevailing in this presidency an adoption by a Kshatriya whose gotra is the same as that of the natural mother of the adopted boy is not unlawful and all the cases in which the rule had been ignored were reviewed. It would indeed be strange if the Vysia community chose to follow the ancient law prohibiting the adoption of the son of a woman whom the adoptive father could not have married in her maiden state when the Brahmin and the Kshatriya communities have overridden the rule by custom; but the Court is not compelled to decide this case on the probability of the Vysia community having chosen to follow the Brahmin and the Kshatriya communities because there is direct and believable evidence that it has done so.
5. The appeal is dismissed with costs in favour of respondents 1 and 2.