1. With the lower Court's finding, that the plaintiff was adopted by Subbiah, during his life-time and not by his widow, after his death, we must agree. The adoption was made the on llth of February, 1811, and Subbiah died on the 9th of March, 1911. Subbiah, by his Will, executed in August, 1910, made certain dispositions in favour of his daughter, the 2nd defendant. One of the points argued is---was the plaintiff's natural father aware of this Will before the adoption in question and did he assent to its provision? The lower Court has, in effect, found, that he acquiesced in them and that, but for such acquiescense, Subbiah would not have taken the plaintiff in adoption. In other words, the finding is, that there was an ante-adoption arrangement between Subbiah and the plaintiff's natural father. The plaintiff attained majority in 1921 and brought the suit in 1923. The lower Court, holding that the arrangement was fair and reasonable, dismissed the plaintiff's suit.
2. The plaint refers to 12 items of immovable property. On behalf of the respondents, it is contended that Items Nos. 4, 5 and 8 are Subbiah's self-acquisitions. This contention is in our opinion, well-founded. In 1902, Subbiah and his brother entered into a partition of their family properties. The partition deed does not mention these three items. It is not disputed that they were acquired by Subbiah subsequently. The plaintiff puts his case thus. Some properties fell to the share of Subbiah at the partition : it must be, therefore, assumed that he purchased the items in question from the income of those properties. In other words, the contention is, that when it is shown that a Hindu father was possessed of some ancestral property, all his subsequent acquisitions must be presumed to be joint family property. With this contention, we cannot agree. In 97 Ind. Cas. 632 Kannammal v. Ramathilakammal : AIR1927Mad38 . (a decision of this Court), the law is thus stated.
The party alleging that the property held by an individual member is joint family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. If this is shown and only then, the onus shifts to the party alleging self-acquisition, to affirmatively make out that the property was acquired without any aid from the family estate. This is clearly laid down in Ram Kishan Das v. Tunda Mal 10 Ind. Cas. 543 : 33 A. 677 : 8 A.L.J.723., Chamier, J., lays down two propositions:
(1) There is no presumption that a family has any joint property.
(2) There is no presumption that property found in the possession of any one member is joint family property unless it is shown that the family as such possessed some property by means of which the property in question, could have been acquired.
In Narayana Rao v. Seshamma 26 Ind. Cas. 33 : 27 M. L. J. 677. Sir John Wallis, C. J. and Sashagiri, Iyer, J., quoted with approval the observations of Chamier, J., and accepted that learned Judge's view. In a recent case of this Court, 71 Ind. Cas. 130 Vadamalai Pillai v. Sub-ramania Chettiar 71 Ind. Cas. 130 : 16 L. W. 936 : (1923) M. W. N. 57 : A.I. R. 1923 Mad. 262., the same view was again taken. It is unnecessary to cite further cases. The law on the point may now be taken as being clearly settled.
3. Following this case, we accept the finding of the lower Court that Items Nos. 4, 5 and 8 are the self-acquisitions of Subbiab. (Items Nos. 2 to 5 in the judgment is an obvious mistake for Items Nos. 4, 5 and 8).
4. The plaintiff cannot succeed in regard to these items.
5. Of the 12 items referred to in the plaint, Items Nos. 1,10, 11 and 12 were bequeathed to the plaintiff himself and his right to those items is not disputed.
6. The question then remains, is the plaintiff entitled to the other five items? (Items Nos. 2, 3, 6, 7 and 9). We must hold, following Krishnamurthi Ayyar v. Krishnamurthi Ayyar . that the natural father's assent does not validate the bequest of these items to the 2nd defendant. The respondents do not seriously dispute this, and we must hold that the plaintiff is entitled to these items.
7. The plaintiff claims also the movables and the outstandings left by Subbiah. These were by the Will in question, bequeathed by Subbiah to his widow the 1st defendant. The plaintiff cannot under the very decision quoted above question this bequest. Their Lordships first explain how the matter stands on principle. What then are the results that follow from its strict application. They first consider the case of a disposition? made inter vivos by the adoptive father. They then deal with the case when the disposition is by Will and the adoption is subsequently made by the widow. Then, in regard to the third and last case, they thus observe:
But it is quite different when the adoption is antecedent to the date at which the disposition is meant to take effect. The rights which flow from adoption are immediate, and the disposition if given effect to, is inconsistent with these rights and cannot of itself vi propria affect them.
8. That is to say, when the adoption is made prior to the disposition which is to take effect subsequently, the rights flowing from the adoption take precedence of the disposition. This, then, is the result, if the matter is looked at from the point of view of strict principle. Their Lordships were, however, prepared to admit an exception to this rule on the ground of custom. Referring to the third case mentioned above they proceed:
It will be seen from these that in their Lordships' opinion the only ground on which such arrangement can be sanctioned is custom.
9. What is the arrangment that is referred to in this passage? The answer is clearly that which is dealt with under third head Their Lordships then go on to observe:
They are of opinion that there is such a consensus of decision in the cases with the exception of the case of Jagannadha v. Papamma 16 M. 400 : 3 M. L. J. 193. that they are fairly entitled to come to the conclusion that custom has sanctioned such arrangements in so far as they regulate the rights of the widow as against the adopted son. It seems part of the custom that one sine, qua non of such an arrangement should be the consent of the natural father.
10. From these passages the inference is obvious that an arrangement made for the benefit of the widow would be treated as valid and be protected. To this extent, the rule resting on principle is relaxed. 'But', says the plaintiff's learned Counsel, 'this exception applies not to an adoption made by a person during his lifetime but by his widow after his death.' This contention receives no support from the judgment : on the other hand, the passages we have quoted have the very opposite tendency. Then the Counsel relies upon the words in the last paragraph of the judgment, namely, 'Their Lordships consider that the Will here can have no effect.' Those words are not to be taken as meaning that they decided that the widow had no right. Indeed, the widow in that case had enjoyed the right conferred upon her and died. The rights in question under the Will were those of the respondents in the case. Who were those respondents? The answer is to be found in the opening paragraph of the judgment where they are thus described:
Persons who were connections, but were in no case within the degrees entitled to maintenance and who are respondents in the present suit.
11. Then the only remaining question is, can the particular provision in this Will in favour of the widow be upheld? The judgment above referred to of the Judicial Committee has been fully considered and explained in Raju v. Nagdmmal 113 Ind. Cas. 449 : 52 M. 128 : 29 L. W. 77 : (1928) M.W.N.732 : A.I.R.1928 Mad.1289. It Was there held that an arrangement by which the widow gets some part of the estate absolutely, would be upheld provided it is fair and reasonable. In this case, we are satisfied that the bequest of the movables and the outstandings to the widow satisfies the requirement. The plaintiff's suit to this extent, must therefore, fail.
12. In the circumstances of this case, we are not prepared to allow the plaintiff mesne profits. By the Will in question Subbiah bequeathed to the plaintiff some properties belonging to his wife the 1st defendant. Now that the plaintiff elects to dispute the Will he is bound to surrender them to the 1st defendant their owner : but he has been enjoying them so long and is bound to account for their profits. Moreover, the 1st defendant] was maintaining the plaintiff till some time previous to the suit. She has incurred legitimate expenses both on her own behalf and on behalf of, the plaintiff. In any account that may be ordered to be taken, she must get credit for the sums she spent as well as for the income from her properties enjoyed by the plaintiff. We do not think any useful purpose will be served by directing these cross accounts to be taken. The claim to mesne profits is, therefore, disallowed.
13. We are asked to record the statement, made on behalf of the plaintiff that he claims no interest under the Will in the properties belonging to the 1st defendant bequeathed to him thereunder and that he is not at present in possession of any of them. We accordingly record that statement. We may note that, but for this statement, we would not have passed a decree in his favour.
14. The lower Court's decree is modified to the extent indicated in this judgment. In the circumstances, we direct each side to bear its costs throughout. The suit was brought in forma pauperis and we direct the plaintiff to pay the Court Fees due to the Government, which are hereby declared to be a first charge on the properties decreed in his favour.
15. We make no order as to costs as regards the Memorandum of Objections.