1. This appeal raises some questions of law and custom relating to adoption in the Nattukottai Chetti community. They arise in the following circumstances:
2. There were two brothers Pichappa and Somasundara. The defendant is Somasundara's adopted son; Pichappa left a son named Pichaikutti. The two branches had become divided, but, continued to hold some immoveable properties in common, according to the plaintiff's case.
3. Pichaikutti died in 1911 leaving a widow Valliammai who, in 1916, adopted one Arunachala. Arunachala enjoyed Pichaikutti's properties whatever they were, married one Egamai and died in June, 1930, leaving Egamai him surviving. On 7th June, 1931, Valliammai adopted the plaintiff who was admittedly an orphan,) aged about 27 years at the time. As usual amongst Chettis, a Muri (Ex. A) was executed at the time of the adoption and it is attested by the defendant, a circumstance which according to Chetti usage not merely signifies proof of the execution of the document (as in the ordinary acceptation of the word 'attested') but associates the defendant with the act of adoption as the nearest pangali in the adoptive family. Ex. A recited that the plaintiff had become the son of Pichaikutti and 'shall, as son, hold and enjoy'* all Pichaikutti's properties. On the same day, the defendant signed Ex. DD (though it is dated the previous day) which purports to be a decision of certain panchayatdars (of whom the defendant was one) to the following effect:
Within a period of ten years from this day, the son that may be born to Lakshmanan (plaintiff) who is now adopted to Pichaikutti shall be got adopted to Egamai the wife of Arunachala or a son from the outside shall be adopted. The said adopted son of Egamai and Pichaikutti's son Lakshmana shall enjoy in equal halves all the properties.
4. Since the adoption plaintiff has been living with Valliammai and Egamai in a portion of the family house, the other portion being in defendant's occupation. About a month after the adoption, the plaintiff was married, the defendant playing the role which according to the custom of the community is assigned to the nearest agnatic kinsman in that function, particularly the attestation of a document called 'Esaikkudimanam' (Ex. B in this case). Egamai does not appear to have yet taken anybody in adoption.
5. The plaintiff has filed this suit claiming a division of and possession of a half share in the properties of which he alleges he is in possession as a 'tenant in common' with the defendant and which according to him belong in common to the defendant's branch and to Pichaikutti's branch. Defendant disputes the validity of plaintiff's adoption and Contends that at all events it is Egamai that is entitled to Arunachalla's share. Plaintiff relies on custom to validate the adoption and give him a title to the property.
6. The pleadings are open to the criticism that the custom relied on by the plaintiff was never clearly or definitely formulated. Even issue 13 does not make any reference to the results of the adoption, assuming it to be valid. The points at issue between the parties as they finally emerged are (i) whether the adoption of an orphan boy is permitted by the custom of the community (ii) whether custom permits a mother-in-law to make an adoption notwithstanding the existence of a daughter-in-law in whom the son's estate had vested at his death and (iii) if the first two questions are answered in the affirmative, what exactly is the status and what are the fights of the boy so adopted. The second question was raised before this Court on a previous occasion (in A.S. 158 of 1932 and 374 of 1933) but the learned Judges gave no finding on it, as they found it possible to dispose of the case on another ground. It may however be mentioned that in that case the lower Court gave a finding in favour of the existence of the custom. In the present instance also, another Subordinate Judge has come to an affirmative conclusion on the 1st and 2nd of the points above set out.
7. On behalf of the appellant, Mr. T.M. Krishnaswami Aiyar raised before us a contention that in this case there is no proof at all of the plaintiff having, been taken in adoption because nothing is spoken to by the witnesses beyond the execution of a muri. We do not think it right to allow such a contention to be raised at this stage. The plaintiff's adoption as a fact was not disputed in the written statement or in the course of the evidence. The plaintiff's witnesses no doubt speak' prominently to the execution of the muri and to the part that the defendant took in that connection but that is apparently because the defendant attempted to minimise the importance of the part he then took. The defendant was admittedly present at the time, he admits that a number of relatives who had assembled for another function also attended the plaintiff's adoption. The defendant throughout speaks of the adoption as an accomplished fact and has nowhere suggested that any particular act which according to the custom of the community was necessary to constitute an adoption was absent in this caser There was of course no 'giving' of the boy by elders-as plaintiff says, he gave himself, but that is a matter to be discussed when dealing with the first of the questions above set out, namely, as to the validity of the adoption of an orphan. It is clear that in the Chetti community very great importance is attached to the execution of the adoption muri and it has not been suggested that Ex. A was brought into existence with a view to a contemplated adoption which did not in fact take place. We have therefore decided to deal with the case on the footing that the plaintiff went through whatever was according to the custom of the community necessary to constitute the ceremony of adoption. Feasting and making presents are optional and their absence cannot constitute a defect in the necessary ceremonial.
8. The practice of taking orphan boys in adoption may well be said to be established by the evidence in the case. The instances spoken to are no doubt comparatively recent but that is a limitation arising from the very nature of oral evidence. The evidence on the point is all one way and no witness has been called on the side of the defendant either to deny the existence of the practice or even to suggest that such adoptions are looked upon with disfavour in the community. The title of such boys to the properties of their adoptive parents seems to have been admitted in all cases as a matter of course. The conduct of the defendant himself in connection with Ex. A and Ex. D and the induct of the other Panchayatdars who took part in Ex. DD are also hot without significance in this connection : See observation of the Privy Council in Ram Kishore v. Jainarayan (1921) 42 M.L.J. 80 : L.R. 48 IndAp 405 : I.L.R. 49 Cal. 120. We therefore see no reason to differ from the conclusion of the learned Subordinate Judge that the plaintiff's adoption cannot be held to be invalid merely on the ground that he was an orphan at the time of the adoption. We are however not prepared to go so far as his statement would seem to imply when he says that in the Chetti community the motive that operates in connection with adoptions is secular. In other sections of the Hindu community also, the secular motive is not without importance; and even amongst Chettis the religious motive is not absent. We cannot agree that the case could or should be assimilated for instance, to adoptions amongst communities like Jains where the religious motive has no place.
9. The evidence does not however establish what exactly are the rights of an orphan boy taken in adoption. The witnesses speak only to his enjoyment of the properties of his adoptive parents. The adoption will not satisfy the definition of a Dattaka adoption and we do not wish to be understood as deciding that in this community., an orphan boy when adopted will as a matter of law (apart from proof of custom when necessary) acquire all the rights which under the general Hindu Law are recognised in favour of a Dattaka son. It must not be forgotten that when and in so far as Hindu usage recognised other forms of adoption or affiliation besides the Dattaka, it did not always accord to persons so adopted all the rights given to a Dattaka, nor impose on him the same disabilities; cf. Jiwan Mal v. Jamna Das (1910) 10 I.C. 822, Tirath Ram v. Mst. Kahan Devi I.L.R. (1920) 1 Lah. 588, and Kanhaiya Lal Sahu v. Mussammat Suga Kuer I.L.R. (1925) 4 Pat. 824. On the second of the points above set out, the evidence establishes 8 or 9 instances. Out of these, in all except two, adoptions were said to have been made both by the daughter-in-law and by the mother-in-law; and by arrangement between the parties both' the adopted boys are said to have shared the estate. Mr. Krishnaswami Iyer has advanced four contentions in this connection. He pointed out that none of the instances spoken to by the witnesses relates to the Illuppukkudi sub-diviion of the Chetti community to which the parties to this suit belong and he also contended that the instances are after all too few and recent to establish a custom for the whole community. We donot feel that there is much force in the first objection, no distinction on this ground seems to have been suggested in the course of the trial and it does not appear that there is any marked difference in practice between this and the other subdivisions of the community. The second objection has greater force and we should have hesitated to accept the conclusion of the lower Court on this part but for the fact that we find it possible in the circumstances of this case to limit our decision to one between the parties. This course has been adopted by the Privy Council in some instances, even when questions of custom were raised; See Rupchand v. Jambu Prasad (1909) 20 M.L.J. 439: L.R. 37 LA. 93: I.L.R. 32 All. 247 , Chiman Lal v. Hari Chand (1913) L.R. 40 LA. 156: I.L.R. 40 Cal. 879 and Parshottam Ganpat v. Venichand Ganpaf I.L.R.(1920) 45 Bom. 754. As pointed out by Mr. Golap Chandra Sarkar (Law of Adoption, Lecture V) when discussing Run gamma v. Atch-ama (1846) 4 M.I.A. 1, Hindu opinion has long been divided on the question of multiple adoptions and where there are more widows than one, whether co-widows, or daughter-in-law and mother-in-law, the sentiment in favour of each having a boy adopted by herself, though in theory to her husband, has been pretty strong in the Hindu community. Amongst the instances spoken to in this case, we find one or two where a person adopted a boy even after the daughter-in-law had adopted a son, whereas under the Hindu Law there is a grandson by adoption. The language employed by Lord Kingsdown in Booban Moyee Debia v. Ram Kishore Acharjee Chowdhry (1865) 10 M.I.A. 279 , seems to suggest that it is against the policy of the law generally to permit an adoption by the mother-in-law after the estate had vested in the daughter-in-law. In this view it might be said that a custom, even if established, would be invalid as opposed to public policy. But as recent cases have not re-affirmed this ground but have based the termination of the mother's power on religious grounds, the possible objection based on public policy need not be examined.
10. Mr. Krishnaswami Iyer's third contention is based on the fact that in all the instances spoken to by the witnesses the rights of the parties were regulated by family settlement. He drew our attention to the observations of the Judicial Committee in Abdul Hussein Khan v. Sana Dero (1917) 34 M.L.J. 48: L.R. 45 LA. 10: I.L.R. 45 Cal. 450 , to the effect that arrangements resting upon such agreements, far from proving a custom binding of its own force, destroy the custom. We do not agree that their Lordships' observation could be taken out of its context and made to support a general proposition in the form put forward by Mr. Krishnaswami Iyer. There was a body of respectable evidence in that case denying the existence of the custom pleaded and it was in appraising the value of the conflicting testimony that the Judicial Committee made the above observation. This is shown by their concluding observation on p. 468 that:
Although there is much reason in history for the custom alleged and some evidence by which it receives support, yet on the whole the evidence has fallen short of the standard to which it must attain in order to succeed in altering the devolution of property according to Mahomedan Law to a devolution determined by a family custom.
11. On the other hand, in Palaniappa Chettiar v. Alagan Chetti (1921) L.R. 48 LA. 539: I.L.R. 44 Mad. 740 , where they were dealing with a custom alleged to exist in the Chetty community, their Lordships note a similar argument on p. 750 and answer it by pointing out that the witnesses who spoke to these documents or arrangements also gave the oral evidence in favour of the custom. The evidence in the present case is of the same kind.
12. The appellant's last contention is based upon the fact already noticed that in most of the instances spoken to in the evidence two adoptions are said to have been made, one by the mother-in-law and the other by the daughter-in-law. This may be more fully discussed when dealing with the third question as to the rights of boys thus adopted. At this stage we will only observe that so far as the prevalence of the practice is concerned, it seems to us to make no difference on the question of fact that an adoption in such cases is also made by the daughter-in-law. Mr. Patanjali Sastri insisted that a differentiation on this ground was not suggested in the course of the trial and contended that if it had been so suggested it might have been possible for his client to adduce evidence of a large number of instances where adoption was made by the mother-in-law. He also relied strongly on Exs. A and D as showing the consciousness of the defendant and of those who took part in them that an adoption might be made by the mother-in-law independently of and long before an adoption by the daughter-in-law, because Ex. DD, contemplates an adoption by the daughter-in-law only some years later while Ex. A proceeds oft the footing that the son adopted by the mother-in-law will immediately get the property. It cannot be denied that this, last contention is well founded, at any rate, as against the defendant. Mr. Krishnaswami Iyer argued that Ex. A merely contemplates the acquisition by the plaintiff of such property as, might be regarded as Pichaikutti's even at the date of the plaintiff's adoption and not of the property of Arunachala. We are unable to put such a construction upon Ex. A. Arunachala must on his adoption have inherited the whole estate of Pichaikutti and it will be meaningless to suggest that the parties to Ex. A., contemplated some property of Pichaikutti, other than what had vested in Arunachala, being still available for the plaintiff.
13. The last question vis., that relating to the rights flowing from such adoption has caused us greater difficulty. Mr. Patanjali Sastri maintained that once custom is invoked to validate an adoption by the mother-in-law even when there is a daughter-in-law, it would follow as a matter of law, that a. son thus adopted by the mother-in-law would divest even the daughter-in-law of the estate vested in her as heir to her husband. We are not able to accept this contention. It seems to us in the first place doubtful whether it would be proper to attach to an adoption which ex-hypothesi is opposed to the general Hindu Law but is only sought to be validated by custom all the legal consequences which the general law would attach to an adoption valid under the general law. We do not however pursue this point because we are not satisfied that under the general law itself, an adoption like that of the plaintiff (assuming it to be valid) will have the effect of divesting the daughter-in-law of the estate which she had taken as her husband's heir.
14. We may refer in this connection to the judgment of the Calcutta High Court in Padma Kumaree Debee v. J. Kishore Acharjee I.L.R. (1879) 5 Cal. 615, where the learned Judges interpreted the decision of the Privy Council in Bhoobon Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279, as not invalidating the adoption by the mother-in-law but only as precluding the divesting of the estate vested in the daughter-in-law. This decision of the Calcutta High Court was reversed by the Privy Council in Padmakumari Debi Chowdhrani v. Court of Wards (1865) 10 M.I.A. 279, where their Lordships declared that the effect of the decision in Bhoobanmayee's case I.L.R.(1881) 8 Cal. 302 was also to invalidate the adoption on the footing that the mother-in-law's power of adoption had come to an end on the vesting of the estate in the daughter-in-law. But the High Court Judgment at least shows that the assumption of the validity of the adoption by the mother-in-law will not necessarily involve the conclusion that the estate of the daughter-in-law must be divested; Cf. the opinion of Reilly, J., in Sukdevdoss Ramprasad v. Mussamat Choti Bai (1927) 27 L.W. 145. Mr. Patanjali Sastri pointed out that the Judgments in Amarendra Mansingh v. Sanatan Singh I.L.R. (1933) 12 Pat. 642 and Vijayasinghji v. Shivasangji I.L.R.(1935) 59 Bom. 360 , have greatly limited the effect of their Lordship's observations in Booban Moyee Debia v. Ram Kishore Acharj Chowdhry I.L.R.(1881) 8 Cal. 302. It is true that the recent decisions have to some extent dissociated the question of the termination of a widow's power to adopt from that relating to the vesting and divesting of the estate. But it does not seem to us to follow that the conclusion in favour of the continuance of the widow's power of adoption will necessarily justify the conclusion that the person so adopted will, regardless of other considerations, also divest everybody who might in the interval have taken the estate which once belonged to the adoptive father.
15. The basis on which a son adopted by a mother succeeding as heir to her son could divest the mother herself of the estate -so inherited by her has been the subject of some discussion see Rai Jatindranath Chaudhuri v. Amirta Lal Bagchi 5 C.W.N. 20 and it was till recently assumed that incases where the adoption is not to the last male holder, the adopted son can only divest the -estate vested in the adopting mother. The Bombay High Court sometimes added an exception based on the consent of the persons in whom the estate was for the time being vested; Cf. Payapa v. Appanna I.L.R. (1898) 23 Bom. 327. The decision of the Privy Council in Amarendra Mansingh v. Sanatan Singh I.L.R.(1933) 12 Pat. 642 and Vijyasinghji v. Shivasangji (1935) I 59 Bom. 360 , seem however to assume that even the estate vested in a collateral on the death of the son may be divested by a son adopted by the mother. The question nevertheless-remains how far these two decisions can be held to overrule the principle enunciated by Lord Kingsdowne in Booban Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279 , that under the Hindu Law a 'person to succeed must be the heir of the last full owner '. In the present case, as in Bhoobanmayees' case, the first adopted son was the last full owner and the inheritance must be traced to him. The nearest heir on that footing will be his widow and not the plaintiff, even if by a fiction of law the plaintiff could be assumed to have become a member of this family at 'the moment of Arunachala's death. On the other hand in Amarendra Mansing v. Sanatan Singh I.L.R. (1933) 12 Pat. 642 and Vijaya Singhji v. Shivasangji I.L.R. (1935) 59 Bom. 360 , the estate had temporarily vested in a distant collateral who would only be a remoter heir, if by fiction the adopted son could be deemed to have been in existence as such at the moment of the first son's death or civil death. How far the doctrine of relation back of the adopted son's title can be carried in cases where inheritance is not to be traced directly to the adoptive father can by no means be regarded as settled; Cf. Bhubaneswri Debt v. Nilcomul Lahiri . Mr. Patanjali Sastri. suggested that the fiction of the plaintiff's existence as Pitchaikutti's son must be carried back to the date of Pichaikutti's death (and not merely to the date of Arunachala's death); and, if on this assumption the plaintiff and Arunachala could be regarded as undivided coparceners, he said, the plaintiff would take the property of Arunachala by survivorship even in preference to Arunachala's widow. But even a fiction cannot be carried to its logical limits; and in this case, it seems unreasonable to postulate the legal existence of plaintiff's title as that of a coparcener of Arunachala because as long as Arunachala was alive his existence would itself be a bar to any adoption by his mother and plaintiff could not have become Pichaikutti's son during Arunachala's life time.
16. Mr. Sastri next contended, in the alternative, that even as a matter of custom the evidence establishes that the son adopted by the mother-in-law in such circumstances divests the daughter-in-law. It is in this connection that Mr. Krishnaswami Iyer's argument becomes important, that where the daughter-in-law also makes an adoption the boy adopted by her would undoubtedly divest her and arrangements entered into by or on behalf of that boy whereby some property is given to the boy adopted by the mother-in-law cannot prove that the latter is in his own right entitled to divest the daughter-in-law. As stated already there are only two instances, referred to in the evidence, of adoptions by the mother-in-law alone. Mr. Patanjali Sastry was therefore obliged to rely on Ex. A and DD and the subsequent conduct of the defendant (including his part in Ex. B and Ex. Y) as sufficient to establish plaintiff's right, as against the defendant, to possession of Pichaikutti's share. He referred us in this connection to the observations in Ramalinga Pillai v. Sadasiva Pillai (1864) 9 M.I.A. 506 and Sooratha Singa v. Kanaka Singa I.L.R.(1919) 43 Mad. 867. In the former case, the plaintiff's adoption was sought to be invalidated on two grounds; (i) that the adoptive father was in pollution at the time of the alleged adoption and (it) that the plaintiff was his sister's son. After referring to the several occasions on which the plaintiff was styled as adopted son by the defendant's father, their Lordships observed (on p. 515):
If there were no adoption at all or if the actual adoption were for any reason legally invalid, the Respondent would of course not be entitled to that designation. They amount therefore to a complete admission of the whole title of the Respondent both in fact and in law and show that the objections which have been urged to his claim, in the opinion of the appellant's father, who probably was well acquainted with all the circumstances and may be assumed to have known Hindu Laws and customs, had no foundation.
17. In Sooratha Singa v. Kanaka Singa 5 C.W.N. 20, where the question related to the existence of a custom permitting the adoption of a brother's daughter's son, Sadasiva Iyer, J., referred to an admission made by the objector and on the authority of the decision in Ramalinga Pillai v. Sadasiva Pillai (1864) 9 M.I.A. 506, observed, that:
It was an admission both of the fact and of the validity of the defendant's adoption. The burden of proving that it was not valid was therefore shifted.
18. An admission could of course be explained away, but the defendant has not, seriously attempted to do so in the present case. Again, on a mere point of law an admission may not be of such significance, but where the question raised is one of custom, the position is different. Finally, as observed in Tayammal v. Seshachala Naicker (1865) 10 M.I.A. 429 , where the person whose conduct is relied on could hardly have distinguished ' between an adoption in fact and a legal adoption' and the facts ascertained in the case disprove the adoption, presumptions arising from conduct may not be of any value; but it was recognised in the same passage that 'upon a question which depended upon the preponderance of evidence' acts of acquiescence would be important. We accordingly accept the lower Court's conclusion to this extent, that as against the defendant, the evidence is sufficient to establish that plaintiff was entitled to the half share which Pichaikutti and Arunachala were entitled to, in the common properties of the two branches. Egamai is not a party to this suit nor has she even been examined as a witness in the case. The evidence does not show whether she was a party to DD or consented to plaintiff's adoption. We do not therefore wish to be understood as expressing any opinion in respect of plaintiff's rights as against Egamai or as against any son that she raayi take in adoption.
19. The plea of estoppel (raised by issue 12) was not pressed before us. But we think it right to point out that the decision in Dhanraj Joharmal v. Soni Bai (1925) 49 M.L.J. 173 : L.R. 52 IndAp 231 :/ I.L.R. 52 Cal. 482 does not preclude a plea of estoppel, as between certain parties, even on a question of adoption; there can of course be no estoppel arising out of representation on a mere point of law. In the case before their Lordships, the decision turned on the distinction (which they emphasise on p. 495) between an ordinary Agarwalla adoption and the regular Hindu or Brahminical adoption', on the assumption that rights of collateral succession arise only in the latter case. On this footing, the Board held that the representation and acts of Ramdhan' only relate to a secular or Agarwalla adoption.
20. The decree of the lower Court in this case, may, it seems to us, also be supported on another ground. The defendant is admittedly entitled only to a half share in whatever may be found to be the common property of the two branches. As regards the other half, his plea is really one in the nature of jus tertii. Such a plea may be available in an action in ejectment, i.e., where the plaintiff is not in possession see Chandrika Baksh v. Indar Bikram Singh I.L.R. (1916) 38 All. 440 but the evidence in this case establishes that the plaintiff is in legal possession of the properties along with the defendant, having been so admitted to possession by the defendant himself on the assumption that the plaintiff was entitled thereto. Valliammai and Egammai are living with the plaintiff and Egammai has not so far disputed plaintiff's right or title. In these circumstances it seems to us proper to allow the plaintiff to convert his 'common' possession of the whole into separate possession of a half share, as against the defendant and leave it to Egammai, if she so chooses, to assert her rights, if any, as against the plaintiff in due course. We are unable to accept Mr. Krishnaswami Iyer's contention that the defendant can treat the plaintiff as a trespasser on property held by the defendant and Egammai as tenants-in-common.
21. The decree of the lower Court covers four items of immovable property. Of these, there is no dispute as to the common title of the two branches in respect of item 4, items 1 to 3 were claimed by the defendant as exclusively his own but this claim was negatived by the lower Court and a division was directed even of these items. The same contention has been repeated before us; but we see no sufficient reason for differing from the conclusion of the lower Court. It is true that the sale deeds stand in the sole name of defendant's adoptive father; but it cannot be denied that out of the consideration for the purchase of item 11 (under Ex. MM-1 and MM) the amount paid for MM-1 was debited to the common account and the major portion of the consideration for MM namely the mortgage-debt under LL was a common asset of the family. We are not prepared to accept the appellant's suggestion that out of this mortgage-debt, the share of Pichaikutti branch has been acquired by defendant's branch. Again, though the Hundi for the purchase money under Ex. G (for item No. III) has been paid out of defendant's account in the Colombo R.M.A.R.R.M. firm, the Hundi itself has been drawn in the common vilasam and not in the Thanathu vilasam of the defendant's father. It was debited in the Colombo firm to defendant's account apparently because the common vilasam had no ledger there. How this amount and the other items of receipts and disbursements referred to by the lower Court have been dealt with as between the two branches can be made clear by the production of the accounts of the defendant's father and of the defendant but the defendant has denied existence of such accounts-a statement which the lower Court has rightly declined to believe. P.W. 18 speaks positively to the acquisition of these items for the common benefit and his testimony has not been shown to be unreliable. There is also other evidence on the plaintiff's side, which the learned Judge has accepted, of such enjoyment by the plaintiff of these properties as their nature permits. The defendant's attempt to explain away such acts of enjoyment as permissive has not been successful.
22. The appeal accordingly fails and is dismissed with costs.