1. The property in suit originally belonged to one M. Thiruvengada-chariar. In 1930 he was aged about 62 and he had no issue living at the time. His wife Alangarammal was alive. He resolved to take the present respondent, the plaintiff in the lower Court, in adoption, and had fixed that the adoption should take place on the 13th July, 1930. Two days prior to that date, i.e., on the nth July, 1930, he executed a settlement deed marked Ex. P-1, on a construction of which the decision in this case depends. The deed itself was executed in favour of Alangarammal, his wife. The executant says:
I am now nearly 62 years of age and have become old. Since you are my wife and on account of love and affection which I have towards you, I am bound to maintain you till your lifetime and further since I have made arrangement to take in adoption on 29th Ani of this year (13th July, 1930), Parthasarathi, minor son of Gomatam Krishnaswami Aiyangar, aged about ten years, and since I have for similar reasons decided as it is necessary that an arrangement should be made, during my lifetime itself, for your food, clothe, etc., expenses, I have in pursuance thereto, executed wholeheartedly in your favour this settlement deed.
2. It is recited that Alangarammal had been put in possession of the property and that she should utilise the income from the property for her maintenance and other expenses. Then occur these words:
After your lifetime, the aforesaid boy whom we are going to adopt shall take possession, hold and enjoy the aforesaid house and site with absolute right and title. You shall enjoy only the rent income from the aforesaid house, as mentioned above, till your lifetime, and you shall have no power to subject the aforesaid house and site to any encumbrances or alienations such as mortgage, sale, etc. In the event of your death during my lifetime itself, I shall enjoy the aforesaid house and site, subject to the conditions aforesaid.
3. On the 13th July, 1930, the plaintiff-respondent was taken in adoption by Thiru-vengadachariar who also executed a deed in favour of the father of the adopted boy who was then a minor. After reciting the adoption the deed provides as follows : ' Hereafter, my adopted son shall remain with me in the family and enjoy, exclusive of the house and site given as and for the maintenance expenses of my aforesaid wife Alangarammal under the registered settlement deed, dated 11th July, 1930, the remaining entire immoveable and moveable properties in my possession, in the capacity as son. with absolute right and title.
4. Alangarammal died in 1931. But Thiruvengadachariar survived her, married another wife, the first defendant (first appellant) and begot a son by her, the second defendant (second appellant) in 1934 and eventually died in April 1941. The third defendant is not a material party. The suit out of which the present appeal arises was filed in July, 1941, by the adopted son against the surviving widow and the natural born son for recovery of possession of the property covered by the settlement deed. In the written statement the defendants pleaded that the alleged deed of settlement read with the deed of adoption conferred upon the plaintiff only such rights as he would have as a member of a joint family and therefore on the death of Thiruvengadachariar the plaintiff would have to share the property with the defendants. In paragraph 5, it was also pleaded that the settlement deed was a maintenance arrangement and that it did not confer any right on the plaintiff.
5. The learned Additional City Civil Judge held that under the settlement deed the plaintiff acquired rights to the suit house on the death of his adoptive parents and the defendants were not entitled to any rights therein. A decree was therefore passed in favour of the plaintiff for possession. Defendants 1 and 2 appeal.
6. I do not agree with the City Civil Judge in the construction of the settlement deed Ex. P-1. He overlooked certain material circumstances which have a bearing on the construction of the deed. It is important to notice that the deed itself purports to be only in favour of Alangarammal. The plaintiff who was then a minor was not a party to that deed, though no doubt he is mentioned in the body of the document as the person who was going to be adopted by the executant. The object of the execution of the deed is unambiguously declared as the necessity to provide for the maintenance and other expenses of Alangarammal, the wife of the executant. The settlement itself is in favour of Alangarammal for her lifetime and in paragraph 3 of the document the executant makes it clear that neither he nor his heirs shall have right to disturb her in the enjoyment of the aforesaid house which had been settled on her as and for her maintenance and other expenses.
7. No doubt in the deed there is a reference to what is to happen after the lifetime of Alangarammal. In the natural course of events the executant thought that he would die first and so provides that the property shall be enjoyed by his wife during her lifetime. But at the same time he also contemplates the contingency of the wife predeceasing him and provides for that event, as follows, namely, in the event of her death during his lifetime he shall enjoy the aforesaid house and site subject to the conditions aforesaid. Reading the entire document it is clear that the executant did not intend that the adopted boy should have any right or interest in the property so long as he or his wife was alive. He obviously intended that the boy whom he was going to take in adoption should succeed to the property with absolute rights according to the ordinary rules of devolution. One thing is clear; the plaintiff did not get any rights in presenti under the settlement deed. This explains why the settlement deed was not executed in favour of the plaintiff also represented by his natural father as guardian. The deed of adoption executed two days subsequent to the date of settlement gives an indication as to the intention of Thiruvengadachariar. In paragraph 4 of the adoption deed Ex. P-2 he refers to the fact that his remaining properties should be enjoyed by the adopted son 'in the capacity as son' with absolute right and title. It was conceded by the learned advocate for the plaintiff-respondent that the defendants would be entitled to share with the plaintiff in properties other than the property covered by the settlement deed. In my opinion, no distinction can be drawn between those properties and the property which is the subject-matter of the settlement deed. What Thiruvengadachariar contemplated was the adopted boy succeeding to the entire estate as adopted son but with this reservation that in respect of the property covered by the settlement deed, his wife was to have a life estate to enable her to maintain herself without depending on the generosity of the adopted son.
8. This conclusion of mine is enough to dispose of the appeal. But Mr. Raghava Rao has raised a point of law that even assuming that there was a grant in presentation favour of the plaintiff under the settlement deed, the presumption would be that the plaintiff took it as ancestral property and therefore on the birth of the second defendant he had to share the property with him. He cited for this proposition the well-known decisions in Magalingam Pillai v. Ramachandra Tevar : (1901)11MLJ210 , Janakiram Chetty v. Nagamony Mudaliar (1925) 50 M.L.J. 413 : I.L.R. 49 Mad, 98 and the recent decision in Velayudhan Chettiar v. Commissioner of Income-tax : AIR1945Mad195 . The general proposition is well established in Madras but the fallacy underlying the argument of Mr. Raghava Rao is that when the decisions describe the property in the hands of the son as ancestral, they do so with reference to the descendants of the son who acquire by birth a right in the paternal estate. If the settlement deed did confer a vested remainder on the plaintiff, the position would be that he would become the owner of the property. It would no longer be his father's property on the birth of the second defendant. The second defendant no doubt would acquire a right by birth in the property of his father but he would not acquire any such right in what is strictly the property of his brother. Mr. Raghava Rao himself recognised the logical result of the acceptance of the proposition for which he contended. It would mean that even after the settlement in favour of the son the property in the hands of the son would continue to be the property of the coparcenary including the father himself, the settlor. The position is so anomalous that it cannot be accepted. If it were necessary I would on the circumstances above adverted be prepared to hold that there was no intention on the part of the executant that the son to be adopted had to share the property with any son that may be born to him subsequently.
9. But as I have already held on a construction of the settlement deed, the plaintiff became entitled to the property only on the death of his father and as an adopted son, according to Hindu Law, he had to share it along with the after-born brother and his step-mother. The plaintiff has not prayed for partition and in fact he could not do so as there are other properties to be partitioned which are not included in the suit. The suit as framed has to be dismissed.
10. I accordingly allow the appeal, set aside the decision of the City Civil Judge and dismiss the suit with costs. The appellants will be entitled to the costs of the appeal from the respondent.