1. The only question argued in the Appeal is as to the 3rd issue. That issue raised the question whether the alienation in favour of the 4th defendant was valid The 4th defendant is the daughter of the divided brother of the 1st defendant, now dead. The plaintiff is the adopted son of the 1st defendant, and he sued for partition and accounts and for similar other reliefs. The 14th defendant, the appellant before us, is the husband of the 4th defendant The fourth defendant whose heir is the 14th defendant, being her husband, died since the institution of the suit. The alienation in question was made by a document, Exhibit III, dated 19th May 1909. By it the 1st defendant purports to settle some of the property in dispute on the 4th defendant, and the validity of that settlement, according to the case of the appellant, would depend on whether it was made in consideration of the 14th defendant marrying the 4th defendant. The property would belong to the joint family, and the 1st defendant would not have been entitled to settle any property belonging to the family on the 4th defendant, if at the time the plaintiff had been adopted. The learned pleader for the appellant tried to show that the promise, according to the witnesses examined by him in connection with this question, was made before the adoption of the plaintiff by the 1st defendant. But we do not think that the evidence at all clearly makes this out. We cannot therefore uphold this contention on the part of the appellant.
2. But the learned pleader next argues that even if the promise to settle the property was made after the adoption of the plaintiff by the 1st defendant, since the 1st defendant upheld the deed of transfer, Exhibit III, in his written statement filed in the suit, the settlement will be effective at least to the extent of the 1st defendant's half share, in the properties. The evidence relating to the alleged promise in consideration of marriage consists mainly of the evidence of four defendant's witnesses 1 to 4 before the Commissioner. They were examined on commission at Salem, the parties being residents of Madura District. It appears that the Commissioner, Mr. Anantarama Aiyar, who, we understand, is a Vakil of the Salem Court, sent a telegram on 17th February 1916 to Mr. P.S Ganapathi Aiyar, a Vakil of Madura who was appearing for the plaintiff, saying that he had fixed the 19th February for the examination of these witnesses. On the 19th however nobody appeared for the plaintiff and there was no cross-examination of the witnesses. On that date however the Commissioner had received a telegram sent by Mr. Ganapathi Aiyar asking for adjournment of the examination till the 21st But he refused to adjourn the examination as he had to return the warrant on that very day. It is quite clear on these facts that the plaintiff's pleader was not given sufficient opportunity to be present at the examination of these witnesses before Mr. Anantarama Aiyar and that the plaintiff should therefore be given proper opportunity of cross-examining the witnesses, D. Ws. 1 to 4. We must therefore ask the Subordinate Judge to send us a revised finding on the question whether there was a promise made by the 1st defendant to settle certain properties in consideration of the 4th defendant's marriage with the 14th defendant, after giving proper opportunity to the plaintiff to cross-examine the above witnesses before the Commissioner at Salem.
3. We allow two months for finding and 10 days for objections.
4. In compliance with the order the Subordinate Judge of Ramnad at Madura submitted the following finding:
On a consideration, therefore, of all the above facts and circumstances, I am of opinion that no promise by the first defendant to settle any properties on the fourth defendant in consideration of her marriage with the fourteenth defendant has been made out by the fourteenth defendant 'I find therefore against the fourteenth defendant and for the plaintiff.
5. The Court delivered the following
6. We think upon the evidence submitted to us that the Subordinate Judge's finding that the alleged promise by the 1st defendant to settle property worth Rs. 2,000 on the 4th defendant at the time of her marriage is not proved, is incorrect. The evidence on the point consists of certain correspondence and the deposition of certain witnesses. The 4th defendant was a daughter of a separated brother of the 1st defendant but she was brought up by him as a foster-daughter and he got her married to the 14th defendant, the appellant before us. The plaintiff who is the adopted son of the 1st defendant and is also his nephew, instituted this suit for partition. After the death of the 1st defendant during the pendency of the suit, he amended the plaint asking for recovery of properties involved in the suit. We found at the time we called for a finding from the lower Court on the point in question after giving the plaintiff an opportunity of cross-examining certain witnesses, that there was no promise proved to settle any property on the 4th defendant before the adoption of the plaintiff. In Exhibit III, which purports to be a deed of gift, there is allusion to such a promise, but apparently there is no other evidence which could support that statement. There is, on the other hand, evidence to the effect that at the time of the negotiation of the marriage--at what is technically called Lagnapatrika ceremony--the 1st defendant made a promise to give certain jewels worth Rs. 2,500 and settle property worth Rs. 2,000 on his foster-daughter, the 4th defendant. On the former occasion there was no finding on this point and we therefore wanted that the evidence should be considered from this point of view which would enable us to find whether there was such a promise and if so, whether the alleged gift in favour of the 4th defendant under Exhibit III was valid and to what extent. The marriage took place some time in 1905 within a week of the adoption of the plaintiff. The 4th defendant attained majority some time in 1908. At that time the question apparently was raised by the 14th defendant and his friends as to the 1st defendant's settling some property on the 4th defendant as promised by him. In the list Exhibit IV series, there is allusion to a promise though the date of the promise and the exact nature of it as to what is the amount of property to be settled is not mentioned. If the case of the appellant stood upon the correspondence, we should be inclined to hold that he has failed to make out his case. But we have the evidence of several witnesses examined by the defendants, especially defence witness No. 4, to make out the case of the appellant. Defence witnesses Nos. 1 to 3 say definitely that at the time of the Lagnapatrika, ceremony they were present and that there were negotiations between the parties as to tha amount of property to be settled. Then it was arranged that property worth Rs. 2,000-0-0 should be settled by the 1st defendant on the 4th defendant besides the jewels. Defendant's 4th witness is a man of considerable position in Salem. He is the Union Chairman and a member of the District and Taluk Boards in the District. He also owns considerable properties. He says that he was invited to a feast in the house of the 14th defendant in honour of the 1st defendant and his wife. That was a month or two after the marriage. On that occasion there was a talk as to what was given by way of a dowry and the 1st defendant himself said that he had agreed to give jewels worth Rs. 2,500 and settle property worth Rs. 2,000 on the girl. Nothing whatever has been suggested against this witness. He is not related to either party and no sort of bias can be imputed to him. There seems to be no reason why his evidence should not be accepted; and this is also the evidence of all the other witnesses against whom nothing tangible has been alleged.
7. There are certain inherent probabilities of the case which also, we think, bear out the story of the appellant. The 4th defendant was not apparently a good looking girl and the 1st defendant had to go from place to place to find a proper bridegroom for her. He found one at last in Salem which is far off from the residence of the 1st and 4th defendants. The 14th defendant who belonged to a good family was in very poor circumstances and it seems to us extremely probable that there was negotiation as to the nature and amount of dowry. It also seems to be extremely likely that the 14th defendant's people insisted on some properties being settled. But no settlement was made at the time and the 1st defendant apparently put it off and the correspondence which has been filed in the case tend to suggest that at one time he said that he would make a settlement by will. However that may be, we think that a promise just before the marriage and in consideration of the marriage has been proved.
8. What then is the effect of Exhibit III (?). It is not contended by Mr. Narasimha Aiyangar that this transaction would affect the share of the plaintiff in the properties in dispute. What he wants us to hold is that to the extent of the 1st defendant's own share the transaction is a valid and binding one. The 1st defendant and the plaintiff were undivided co-parceners. The law is well settled that the managing member of an undivided Hindu family or any other member cannot alienate any portion of the family property except for necessity. But a co-parcener may alienate his own share either in the whole of the family property or in any particular item of it for valuable consideration. (See Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad 690). It is also settled law that a co-parcener cannot make a valid gift of his share. It is contended on behalf of the respondents that the transaction evidenced by Exhibit III stands on the footing of a gift. Mr. Narasimha Aiyangar contends that we must treat it as an alienation for valuable consideration just like a sale or a mortgage. There is no express authority on the point and we have got to decide the question on general principles of Hindu Law as obtaining in this Presidency. In this Presidency as already stated, alienation by a Hindu coparcener of his share for a valuable consideration is recognised, though it is not recognized in some other provinces where the Mitakshara law prevails. The question is whether a gift made in pursuance of a promise in consideration of marriage is alienation for valuable consideration within the rule of Hindu Law. We are of opinion that it does come within the rule. According to the contract Act consideration is defined thus : ' When at the desire of the promisor, the promisce or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise'. If a person contracts a marriage in consideration of a promise, then it seems to us that the marriage is valuable consideration within the meaning of this definition. In this respect the law is the same in India as in England. In England, a promise made in consideration of marriage is a binding and enforceable agreement. The definition of consideration as given in Section 2 of the Contract Act seems to be general and wide enough to cover such cases.
9. That being so, the next step in the argument of Mr. Narasimha Aiyangar is that this agreement entered into between the 1st defendant and the 14th defendant was a valid contract which could be enforced against the 1st defendant. We do not think that this proposition can be doubted. The settlement in Exhibit III vas made in pursuance of this contract. It seems to us therefore that such a settlement is an alienation for valuable consideration. It might be suggested that the Courts of this Presidency in upholding alienation for consideration by a Hindu co-parcener are making an exception to the strict notion of Hindu Law that until partition the coparcener has no definite share in the family property. But once the validity of alienation for valuable consideration is recognized, it seems to us impossible not to include such a transaction as this within the operation of this rule. None of the cases to which we have been referred lay down that this power of a Hindu co-parcener is merely confined to sales or mortgages; but the general proposition which we deduce from the decisions Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) M. 690 Baba v. Timma I.L.R. (1888) m 357 Ponnusami v. Thatha I.L.R. (1886) M. 273 and Kosuri Ramaraju v. lvalury Ramalingam I.L.R. (1902) M. 74 is that an ordinary simple gift for no consideration will not, be upheld as distinguished from alienations for consideration. We therefore hold that the 14th defendant is entitled to a half share of items Nos. 5 to 8 in A schedule. As regards item No. 5, it was argued by the pleader for the respondents that as the sale to the 5th defendant of that item by the 4th defendant has been found to be not binding on the plaintiff and as the 5th defendant has not appealed specifically regarding this item, the appellant was not entitled to any share in this property. But the 5th defendant's purchase was found to be ineffective and inoperative, and the 5th defendant not having appealed, the property remains with the 4th defendant. Therefore the 14th defendant is entitled to a share in that property as well to the extent of the 1st defendant's share. The appellant and the first respondent will pay and receive proportionate costs from each other with respect to this appeal. In the Lower Court each party will bear his own costs.