1. This appeal arises out of suit by the plaintiff to establish his adoption, to set aside certain alienations made by or on behalf of his adoptive father and to recover the family properties.
2. Plaintiff was adopted by Movva Sankariah in 1911. He left the adoptive father's house in 1913. Sankariah suffered from dropsy in 1916 and 1917 and died on 23rd July, 1917. The 1st defendant is Sankariah's widow, the 2nd defendant is his mother and the other respondents are other alienees. The Subordinate Judge gave a partial decree to the plaintiff. The plaintiff appeals as to the rest of the properties.
3. The first point argued for him is that Sankariah was insane from 1913 up to his death. It may be taken that he was insane from December, 1910 till the end of 1911 (D.W. 16), with perhaps occasional lucid intervals, and even up to May, 1912 (D.W. 30). Not only there is no reliable evidence to show that he was insane in 1913, 1914 and 1915, but there is over-whelming documentary evidence from which it can be inferred that he was not insane-several of these being registered documents-and it must be presumed that the registering officers were satisfied that he was in a proper state of mind. Is follows that the documents executed by Sankariah cannot be attacked on this ground. Seeing that plaintiff's natural father is not a stranger but a cousin of Sankariah, it is not likely that he would allow so many transactions effected in the name of Sankariah to remain unchallenged if he was really insane.
4. The next point argued for the appellant is the alienation under Ex. LXIII (dated 26th February, 1915) in favour of the 21st defendant. The larger part of the consideration (Rs. 1,375) was for discharging prior debts and only Rs. 260-12-6 represented the cash paid before the Sub-Registrar. The debts were evidenced by Exs. 86,63-A, 111,102,82, 102-A. Excepting Ex. III, these documents could not be attacked by the appellant. Ex. III was executed on 12th September, 1911, when there is a suspicion that he was of unsound mind. But it was in renewal of a prior genuine promissory note, and Sankariah himself made payments towards it in 1914 and 1915, and his agent made a payment in 1916. The only inference is that the document was perfectly valid and binding and probably on the date of Ex. III, he was in one of his lucid intervals.
5. The next point argued relates to the 5th defendant. This does not relate to an alienation by Sankariah, but to a recognition by him that certain properties standing in his name really belonged to the 4th defendant. The history of the transaction connected with it begins in 1869. The motive for the benami and the fact of benami have been so completely proved that the appellant's Vakil could scarcely meet the reasons given by the learned Subordinate Judge in paragraphs 60-68 of his judgment.
6. The appeal fails and is dismissed with costs, proportionate to the interest of each respondent : printed papers will be separate for each.
7. There is a Memorandum of Objections by the 1st and 2nd defendants Sankariah executed a deed of gift in her favour on 14th February, 1914 (Ex. XLV) for 10 acres and 63 cents. Of this she sold 5 acres and 16 cents to the 24th defendant (under Ex. LI) and to this extent the gift is upheld by the Subordinate Judge as reasonable. The Memorandum of Objections relates to the balance. The learned Vakil for the 1st respondent relies on Arunachala Pillai v. Sampurrta Thachi : (1914)27MLJ485 and Ramkishore Kedarnath v. Jainarayan Ramrachpal (1913) 40 Cal. 966. No doubt it is settled law that a reasonable gift to a daughter by a father of joint family property will be upheld, Anivillah Sundararamayya v. Cherla Seethamma (1911) 35 Mad. 628; Appan Patrachariar v. Srinivasachariar (1917) 40 Mad. 1122; Sundaramayya v. Seethamma. But in this case the 1st and 2nd defendants being widow and mother of Sankariah stand on a different footing.
8. It is certainly open to Sankariah to make reasonable arrangements for their maintenance after his death. The gift to 2nd defendant is only of 2 acres and 99 cents. There is no reason why the gift to 1st defendant should be more than 5 acres and 16 cents. I do not think there is any warrant for the proposition that a member of a joint family can make a gift of the joint family property if it does not exceed, what he would obtain for his share on partition. The oases relied on by the respondent do not establish such a proposition. The cases only show that that fact furnishes a maximum limit and we have to be satisfied that it is otherwise reasonable. To say that he might have insisted on an immediate partition and might have given away the whole of his share seems to me fallacious reasoning.
9. If he so enters into a partition, he has not got the further chance of getting the other properties by survivorship. If a gift of a property equal to his share is upheld, we have this strange anomaly, viz., that, while giving away all his share, he continues a member of the joint family in respect of the rest of the property. Does he possess a share in it? Can he again alienate his snare in it by a gift? In this case the consideration for the pale deed by 1st defendant in favour of 24th defendant (Rs. 5,000) was deposited in Court in pursuance of a decree for specific performance, and presumably she has got all the money and keeps it and I don't see any reason to sympathise with her position. I would uphold the judgment of the Subordinate Judge as proper and equitable in all the circumstances of the case.
10. As the defendant and plaintiff have succeeded half and half, there is no reason to disturb the order of the Subordinate Judge as to costs though, otherwise, the reason given by him for disallowing defendants costs are not satisfactory. I would dismiss the Memorandum of Objections of 1st and 2nd defendants with costs. The Memorandum of Objections of respondents 3, 5, and 6 must be allowed with cost?.
11. I agree.