1. In this case, the 1st defendant is the appellant before us. The suit was brought by the plaintiff for a declaration that the property which was the subject of the suit did not belong to the 1st defendant but belonged to the 2nd defendant and was therefore liable to be attached by the plaintiff in execution of a decree obtained by him against the 2nd defendant.
2. The first defendant is the wife of the Second defendant. She claims the property under a will of her mother-in-law to whom it was conveyed by a sale-deed, Ex. VII, dated 23rd February 1914, by the 2nd defendant's father Venkataratnam. It is the case of all the parties that the property originally belonged to Venkataratnnm's maternal grandfather and devolved on him as daughter's son : vide Ex. XIX.
3. The first point argued by the appellant before us is that when the 2nd defendant was adopted by his father, there was an agreement according to which the adopted son should not share with the father in the properties the latter obtained from his maternal grandfather. This agreement was found against by the Court below. We agree with this finding.
4. The adoption must have taken place many years ago and certainly long before the Jaggampet case was reported. And an agreement between the adoptive father and adopted son that the adopted son should not be a co-parcener in the property, obtained by the father from his maternal grandfather, was inconceivable at the time.
5. The only evidence adduced in support of the agreement is that of P.W. 1. He is father of the 1st defendant and therefore interested. He admits there is nothing in writing about the conditions before adoption. The only other circumstance relied on by the learned Vakil for the appellant, in support of the agreement, is that the pro-petty was enjoyed by the father alone.
6. But when the facts are examined, this statement really has no significance. The father and son were joint, up to 1912, and during their jointness naturally it was the father that managed the property. Disputes arose between the father and the son and they became divided in status hi that year and in 1914 the father conveyed the property to his wife, under the sale-deed Ex. VII.
7. So all that is left to us to form a material for inferring any agreement, at the date of adoption, is merely one year's enjoyment. This contention of the appellant must, therefore, be disallowed.
8. The second point argued by the appellant is that the sale-deed, Ex. VII, is binding on the 2nd defendant. We do not see how this contention can be supported. It is a sale-deed by the father after the separation in status between him and his son and apart from any question of considerations it cannot bind the son to the extent of the son's share.
9. The third point argued for the appellant is that the property is not joint family property in the hands of Venkataratnam, in the sense that the 2nd defendant has a right in it, as co-parcener by adoption, (adoption corresponds to birth here), though it may be ancestral property and liable to the incidents of survivorship between Venkataratnam and his brother if any, according to the decision of the Privy Council in Venkayyamma v. Venkataramanayamma Bahadur Garu (1902) 25 Mad. 678. This point has been decided against the appellant in Vythinatha Ayyar v. Yeggianarayana Ayyar (1904) 27 Mad. 382, where the effect of Venkayyamma Garu v. Venkataramanayamma Bahadur Oaru (1902) 25 Mad. 678 was considered.
10. The point was raised again and decided by another Bench of this Court in Ramayya v. Jagannadham (1914) 39 Mad. 930. The learned vakil for the appellant in that case relied on Jarnna Prasad v. Ram Partap (1907) 29 All. 667 where a conclusion different from that in Vythinatha Ayyar v. Yeggianarayana Ayyar (1904) 27 Mad. 382 was arrived at and suggested a reference to a Full Bench.
11. But their Lordships Coutts-Trotter and Spencer, JJ., on a consideration of the then authorities, including the Privy Council decision reported in Atar Singh v. Thakar Singh (1908) 35 Cal. 1309, a case arising under the Punjab Customary law, held that the matter was settled and did not refer the case to a Full Bench.
12. The only additional authority that is now brought to our notice, by the learned Vakil for the appellants', is the decision in Biswanath Prasad Sahu v. Gajadhar Prasad (1917) 3 Pat. L.W. 286. Practically it adopts the same reasoning as in Jamna Prasad v. Ram Pratap (1907) 29 All. 667 and there is no other reasoning.
13. I think we must follow the view adopted in Ramayya v. Jagannadham (1914) 39 Mad. 382 and Vythinatha Ayyar v. Yeggianarayana Ayyar (1904) 27 Mad. 930 based, as they are, on a full consideration of the effect of the decision in Venkayyamma Garu v. Venkataramanayamma Bahadur Garu (1902) 25 Mad. 678 with the principles laid down in Jageswar Narain Deo v. Ram Chandra Dutt (1896) 23 Cal. 670 and Sudarsanam Maistri v. Natasimhulu Maistri (1902) 25 Mad. 149 and the Full Bench decision in Karuppai Nachiar v. Sankaranarayanan Chetti (1904) 27 Mad. 300.
14. The appeal fails and is dismissed with costs. The Memorandum of Objections is also dismissed with costs.