1. These appeals arise out of a suit brought for accounts. The facts of the case may be shortly stated. The common ancestor of the parties was one Palaniappa Chetti. He had two sons Annamalai Chetti and Thenappa Chetti. Annamalai Chetti died in-1891 having a son Palaniappa Chetti. The second Palaniappa Chetti died in 1902 leaving his widow Seethai Achi and his mother Meenakshi Achi. There were disputes between the mother in law and the daughter in law and litigations pending when in 1904 an amicable settlement was effected by Ex. A. Under this settlement each of the women was to make an adoption. Thenappa Chetti was to bring about the adoption. Accordingly Seethai Achi adopted Venkatachala in 1905 and Meenakshi adopted Adaikkalava in 1906. This Adaikkalava is the father of defendants and 1 and 2 his widow is defendant 3. Each of the adopted sons took a half share of the properties. Venkatachala enjoyed his half share till 1912 when he died leaving his widow Alagammai Achi who is now defendant 5, and his adoptive mother Seethai Achi. Again there were disputes between this mother in law and this daughter in law arid another settlement (Ex. H dated 30th April 1912), was brought about by Adaikkalava on the one hand and Annamalai, the father of Alagammai Achi, on the other.
2. Under this document Alagammai was to take a boy in adoption within a period of seven years : Seethai Achi was to make another adoption and Adaikkalava was to bring about these adoptions. Alagammai never made any adoption but Seethai adopted the present plaintiff in 1926. The properties and the money dealings were to be under the order of Adaikkalava and one Muthu A.R.M. Arunachalam. The account, letters of outstations were to be received by Arunachalam and then given to Adaikkalava. The account, letters and the documents relating to the account of headquarters were to be in the possession of Adaikkalaya. Up to the time of adoption by Seethai, Adaikkalava was to pay from the common funds for the household expenses of Seethai as predilections of Arunachala through the said person. As soon as a boy is taken in adoption by Seethai. deducting the drawings for the half share of the boy the balance of the money, house site, bungalow, etc., and the subsequent amounts were to be divided and handed over to him and the boy was thereafter to incur all further expenses. Similarly the other half share was to be enjoyed by Adaikkalava and another Palaniappa, but when a boy was taken in adoption, the other half share was to be handed over to him. As we have already seen, no adoption was made by Alagammai and she remained the owner of the other half. Adaikkalava died on 5th July 1928. The present suit was filed on 18th April 1929. The first Subordinate Judge who tried the suit gave some preliminary findings on 30th July 1931. He directed that the first plaintiff do put into Court a statement showing what properties or monies went into the management of Adaikkalava and what portions of the same remained unaccounted for at the time of Adaikkalava's death and adjourned the suit for further consideration. The suit came on for further consideration before the same Subordinate Judge on 10th October 1931, when he passed an interim I decree in respect of certain items. It is against the preliminary findings and the interim decree that A.S. No. 158 has been filed. Then the matter came on before another Subordinate Judge on 4th October 1933, when a preliminary decree was passed in respect of the rest of the suit directing that accounts be taken of the management of the plaintiff's estate by Adaikkalava both in respect of what was left of the plaintiff's estate with him at the time of his death and what part of the estate was lost by misfeasance, malfeasance and breach of duty on his part and declaring the liability of defendants 1 and 2 for paying the sums so found due to the plaintiff's estate to the extent of their joint family properties and of the separate assets if any left by the deceased Adaikkalava in their hands. It is against this preliminary decree that A.S. No. 374 of 1933 has been filed.
3. Defendant 4 died pending the suit and no legal representative was brought on record. The preliminary decree of the Subordinate Judge by mistake makes defendants also liable, The decree must be amended by omitting him altogether. The Subordinate Judge also directed that the defendant 3 will also be liable for intermeddling with the management of the plaintiff's estate after Adaikkalava's death. The first point argued in those appeals is that the suit is not maintainable by the present plaintiff because the adoption is not valid. Under the general Hindu law it is now well established that where a man dies leaving a widow and a mother and the widow succeeds to the property, any power of adoption in the hands of the mother is at an end : Bhooban Moyee Debia v. Ram Kishore Achari (1863-66) 10 M.I.A. 279. But it is claimed that there is a custom among the Chetties by which two simultaneous adoptions can be made by a mother-in-law and a daughter-in-law. The Subordinate Judge after fully enquiring into the matter upheld the custom. It is noticeable that the defendants themselves are the representatives of Adaikkalava who was adopted by a mother-in-law along with a daughter-in-law under Ex. A. It is also noticeable that Exs. A and H do not refer to any such custom. Another agreement dated 19th April 1926, Ex. E, is put forward by the plaintiffs as having been executed by Adaikkalava. This agreement refers to Such a custom. The genuineness of Ex. E is questioned by the defendants-appellants. It is unnecessary to consider the question of the genuineness of Ex. E. Apart from the fact that such a custom is mentioned in Ex. E, there is no difference between the liability of the defendants to account under Exs. E or H. Though, no custom was referred to in Exs. A and H, they are relied on by the plaintiffs.
4. It seems to us that it is unnecessary in this case to consider the validity of the adoption. The terms of Ex. H bind the parties to it. Adaikkalava was one of the parties who was to bring about the adoption and the plaintiff's adoption was brought about by him and the half share allotted to the plaintiff was handed over to Adaikkalava under Ex. H for management by him, and when the plaintiff attained majority the properties were to be handed over to him. Having got possession of the properties under Ex. H he cannot be heard to argue that he is not bound to deliver the properties to the plaintiff adopted under the same document. The defendants are estopped from raising any questions as to the validity of the adoption. The substantial question in the case is covered by the first three issues. It is suggested that the plaintiff is not a party to Ex. H and he cannot take the benefit of that document. But Adaikkalava was made the trustee and plaintiff the beneficiary under the terms cf Ex. H. In such a case the rule of law that third parties to a contract cannot take the benefit of the contract does not apply : vide Tirumulu Subbu Chetti v. Arunachalam Chettiar 1930 Mad. 382. Ex. H can scarcely be described as a bare contract. It is a family settlement purporting to settle disputes and allot properties to the persons intended to be adopted. Until the adoptions are made, the property was left in the management of the trustee who has to account for the respective shares of the adopted sons. The question raising the validity of the custom under which the adoption was to be made was raised as an after thought and made the subject of issue 11. It is, therefore, unnecessary to consider in this case how far the adoptions bind the reversioners to the estate. The finding of the Subordinate Judge is, therefore, set at large without any expression of opinion on our part either in favour of or against thy validity of the adoptions. Under the terms of Ex. H undoubtedly the defendants are bound to account to the plaintiff to the extent of the assets received by them from Adaikkalava.
5. Another point that was raised before us is whether defendants 1 to 3 are liable to account for misfeasance, misfeasance and breach of duty on the part of Adaikkalava. It was contended by Mr. K. Bhashyam Ayyangar, the learned advocate; for the appellants, that Adaikkalava was merely in the position of a gratuitous bailee and he cannot be expected to take greater care of the properties entrusted to him than his own properties. We do not agree with this contention. His position was that of a trustee. It may be that his duties under Ex. II are not those of a general trustee whose liabilities are not defined but specific directions were given under Ex. H to the mode of management to be carried on by him. We have quoted above that portion of Ex. H, relating to the mode of management to be adopted by him. It cannot be said in advance without knowing all the details of the facts whether even under the limited mode of management contemplated by Ex. H there may not be misfeasance, malfeasance or breach of duty. It is possible that there may be. It is not desirable to state in advance what kind of facts will give rise to liability to account and what kind of facts may not give rise to liability to account on the part of the defendants. The Subordinate; Judge does not make Adaikkalava liable for nonfeasance. Provided it is clearly understood that the liability of the defendants is with reference to the terras of Ex. II, there is no harm in leaving the directions of the Subordinate Judge as they are. This point also, therefore, substantially fails. The result is the appeals fail and are dismissed. As the defendants had to file an appeal about the adoption, we direct that each party will bear its own costs in this appeal A.S. No. 158 of 1932. A.S. No. 871 of 1933 will be dismissed with costs.