Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of an interpleader suit filed in the Court of the Subordinate Judge, Vizagapatam. The plaintiff is the receiver of the zamindari properties of one Venkata Simhadri Raju, who has throughout the suit been referred to as ' Chinna Babu,' the name by which he was generally known. Chinna Babu, who was a member of a Kshatriya family, died of small-pox at the village of Annamrajupeta in the Vizagapatam district, according to the first defendant at noon of the 12th March, 1934, and according to the second and third defendants on the night of the nth March, 1934. Chinna Babu was possessed of properties worth some 30 lakhs of rupees. The first defendant claimed to be his heir as the adopted son of Chinna Babu's brother, Pedda Babu, who died on the 13th August, 1933. Pedda Babu was survived by his widow, Rajeswaramma, to whom he gave by a will an authority to adopt a son. The first defendant alleges that he was adopted by Rajeswaramma on the morning of the 11 th March, 1934. If this is true, he is the heir of Chinna Babu. The second and third defendants are the paternal uncles of Chinna Babu and if the first defendant was not adopted to Pedda Babu, they are the heirs. They denied that the first defendant had been adopted and the rival claims led to the filing of this suit by the receiver of Chinna Babu's estate. The second and third defendants not only denied the factum of the adoption, but they maintained that even if there had been a giving and a taking and all the necessary formalities complied with, the adoption would be invalid because the first defendant's natural mother Chittamma was a member of the same gotra as Pedda Babu and it had been laid down by a Full Bench of this Court in Minakshi v. Ramanada I.L.R.(1888)Mad. 49 that under the Hindu law there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state. While not questioning the validity of this rule, the first defendant contended that its application had been restricted by the decision of the Privy Council in Bhagwansingh v. Bhagwan Singh and that in any event custom had avoided its application.
2. The learned Subordinate Judge held in favour of the first defendant on the question of the factum of adoption and also held that the rule stated in Minakshi v. Ramanada I.L.R.(1888)Mad. 49 had been set at nought by custom in Southern India. Consequently he held that the first defendant was the rightful heir to the estate and passed a decree in his favour. The second and third defendants have appealed.
[After discussing the facts, their Lordships proceeded.]
3. Agreeing with the trial Court we hold that the first defendant was adopted by Rajeswaramma to her deceased husband on the morning of the nth March, 1934, and that all the requisite formalities were carried out.
4. We will now proceed to discuss and decide the question whether the adoption was valid in law. In holding that there can be no valid adoption unless a legal marriage would have been possible between the person to whom the adoption is made and the mother of the adopted boy, in her maiden state, the Full Bench in Minakshi v. Ramanada I.L.R.(1888)Mad. 49 clearly recognised that the rule might be overridden by custom. The case of Bhagwan Singh v. Bhagwan Singh was an appeal to the Judicial Committee from a decision of a Full Bench of the Allahabad High Court. The question there was whether the alleged adoption of the appellant by one Madho Singh was void and ineffectual on the ground that the adopted boy was the son of the sister of Madho Singh's mother. Four of the five learned Judges of the Allahabad High Court were of the opinion that the adoption was not shown to be prohibited or illegal by the law of the Benares School which applied to the parties. The Judicial Committee held that no Hindu of any of the three regenerate classes, Brahman, Kshatriya and Vaisya, can adopt a daughter's son, a sister's son and a mother's sister's son and that the ancient texts condemning these adoptions were not only admonitions, but they had for so long been judicially decided to be prohibitions of law that it was not competent to a Court to treat them as still being open in this respect. The judgment of their Lordships, which was delivered by Lord Hobhouse, did not go beyond the three cases mentioned in the texts, namely, the daughter's son, the sister's son and the mother's sister's son and therefore did not decide whether the words ' bearing the reflection of a son ' to be found in the Dattaka Chandrika carry the rule beyond the three cases actually mentioned in the texts. Therefore the judgment of the Privy Council left untouched the judgment of this Court in Minakshi v. Ramanada I.L.R.(1888)Mad. 49 but their Lordships also recognised that the prohibition could be overruled by custom.
5. The Calcutta High Court followed Minakshi v. Ramanada I.L.R.(1888)Mad. 49 in Hari Das Chatterji v. Manmathnath Mallick I.L.R. (1937) 2 Cal. 265, but in two cases (Ramchandra v. Gopal I.L.R.(1908)Bom. 619, and Tamnava v. Laxman Bhimrao I.L.R.(1912)36 Bom. 533 the Bombay High Court has held that the prohibition applies only to the actual cases mentioned in the texts. As the Privy Council did not go to this extent in deciding Bhagwan Singh v. Bhagwan Singh and as Minakshi v. Ramanada I.L.R.(1888)Mad. 49 is binding on us there only remains to be considered whether the Subordinate Judge was right in holding that the first defendant's adoption by Rajeswaramma is lawful by reason of a custom prevailing in Southern India among the regenerate classes.
6. On behalf of the first defendant 29 witnesses were examined on this question. Ten of them deposed to adoptions in the Kshatriya community of sister's sons. They spoke to five adoptions which were spread over the period from 1892 to 1926. Four witnesses spoke to adoptions of daughter's sons. The first of these cases occurred in 1850, the second in 1855, the third in 1862 and the fourth in 1932. Eleven witnesses spoke to adoptions among sagotras. Here six cases were mentioned but the evidence does not disclose, except in one case, what the relationship was between the adoptive father and the natural mother of the boy. In the one case the natural mother was the daughter of the adoptive father's paternal grand-uncle.
7. Mr. Govindarajachari had accepted the truth of the statements of the witnesses called by the first defendant to prove the various adoptions and it is noteworthy that the second and third defendants made no attempt to lead evidence in contradiction of the custom.
8. In Ramarao v. Rajah of Pithapur (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 : l.L.R. 41 Mad. 778 , an appeal from this Court, the Privy Council said that when a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Court may hold that custom or usage to be introduced into the law without the necessity 'of proofln each individual case. It becomes in the end a matter of process and pleading. Their Lordships made observations to the same effect in Krishna-murthi Iyer v. Krishnamurthi Iyer (1927) 53 M.L.J. 57 : L.R. 54 IndAp 248 : I.L.R. 50 Mad. 508 . There are several decisions of this Court which lend the fullest support for custom pleaded by the first defendant.
9. In Vayidinada v. Appu I.L.R.(1886)Mad. 44 , which was decided in 1885, two years before Minakshi v. Ramanada I.L.R.(1888)Mad. 49 , was decided, a Full Bench of this Court held that in Southern India the custom which exists among Brahmans of adopting a sister's son or a daughter's son is valid. Three of the five judges who decided Minakshi v. Ramanada I.L.R.(1888) Mad. 49 were members of the Bench which decided Vayidinada v. Appu I.L.R.(1886)Mad. 44. In Appayya Bhattar v. Venghu Bhattar : (1905)15MLJ211 , decided in 1903, a Division Bench of this Court said that the adoption of a brother's daughter's son, though not permitted by the texts of the Hindu Law, is valid in Southern India by reason of a general custom. In the judgment in that case it was pointed out that although Vayidinada v.Appu I.L.R.(1886)Mad. 44 apparently referred to the validity of the adoption of a daughter's or sister's son, yet the case actually before the Court was that of a brother's daughter's son. In Appayya Bhattar v. Venghu Bhattar : (1905)15MLJ211 the question was the validity of the adoption of a brother's daughter's son. The judgment contains this passage to which we readily assent:
We must take it that the Court considered that if the adoption of a daughter's or a sister's son was valid, the adoption of a brother's daughter's son must be equally, or a fortiori valid, as the relationship in the latter case was more remote than in the former.
11. In Sooratha Singa v. Kanaka Singa I.L.R.(1919) Mad. 867, another Division Bench of this Court held that the adoption of a brother's daughter's son was valid by reason of-custom which was proved to exist among the Kshatriya community settled in South Kanara and in Viswasundara Rao v. Sbmasundara Rao I.L.R.(1919)Mad. 876, it was held that the adoption of a daughter's son is valid by custom among the Brahmans of the Andhra or Telugu portion of the Madras Presidency as it is in the Southern districts.
12. There is here ample authority of this Court for holding that in the Madras Presidency the prohibition contained in the texts has been overridden by custom and we find ourselves in full agreement with the following observations to be found at page 542 of the ninth edition of Mullah's Hindu Law:
The basis of the rule being that marriage between agnates is prohibited, wherever the basis is ignored in the most prominent cases, namely, the sister's son and the daughter's son it is submitted that the rule must be regarded as destroyed by the exceptions, in all cases where the adopted boy's mother is an agnate of the adopter.
13. It would, in our opinion, be unjust to enforce the rule where the adoptive father and the natural mother of the boy are cousins many times removed, as here, when the prohibition is completely disregarded where there is such near relationship as in the case of the daughter's son, the sister's son and the mother's sister's son. The decision'in Vayidianada v. Appu I.L.R.(1886)Mad. 44 shows that the custom is not in fact confined to such cases. In Viswasundara Rao v. Somasundara Rao (1918) 35 M.L.J. 392 : L.R. 45 IndAp 148 : I.L.R. 41 Mad. 778 there are in fact six instances of adoption of a brother's daughter's son.
14. It follows that we also agree with the Subordinate Judge that the first defendant's adoption to Pedda Babu is lawful by reason, of custom.
15. The appeal is dismissed with costs in favour of the second respondent. We fix the advocate's fee at Rs. 2,000. We certify for two counsel.