1. This is an appeal by the defendant from the decree of the Subordinate Judge of Cuddalore in Original Suit No, 65 of 10.19.
2. The plaintiff is the widow of one Ananta Narayana Pillai and the defendant Vencatachella Pillai, is her husband's brother.
3. She claims the properties in various ways: firstly, the whole of the properties in schedules II and III on a certain footing; secondly, half of those properties on a certain other footing; and thirdly, one-third of 1he property in schedules II and IV and the whole of schedule III properties on still another footing. The facts of the case are fully set out by the learned Subordinate Judge in this judgment and need not again be referred to in detail.
4. Anantanarayana, Ramachandra and Vencatachella (the defendant herein) were brothers, being the sons of one Muthusami Pillai. Muthusami Pillai had two brothers himself, but they died 20 or 25 years ago leaving no male issue, and all their property passed to Muthusami Pillai. Schedule II of the plaint gives the property which Muthusami had and which would have passed to his three sons as the ancestral estate. Schedule III gives the properties which the plaintiff's husband and his brothers got from their maternal grandfather, and schedule IV consists of certain properties which had once belonged to one Subbaroya Pillai and which passed to Vencatachella Pillai. The plaintiff states that as her husband was the sole surviving member of the joint family at the time of his death, he is entitled to whole of the properties described in schedules II and III; in the alternative she says that if the defendant is held to be entitled to the properties as co-owner to himself and to plaintiff's husband, she would be entitled to half of the properties in all the three schedules. She denies that defendant continued as co-parcener of her husband at the time of his death.
5. It is the defendant's case that he was such a co-parcener and, therefore, the whole of the properties in the three schedules in the plaint passed to him and that the plaintiff got only a right of maintenance.
6. Of the three brothers Anantanarayana Pillai, Ramachandra Pillai and Vencatachella Pillai, Ramachandra Pillai, the second brother, was admittedly adopted away from the family by one Pannapattu Subbaroya Pillai, and he seems to have succeeded to the properties of Subbaroya Pillai and enjoyed them. Just before his death, a document the effect of which has been discussed before us at some length and which we have to consider, Exhibit A was executed by the plaintiff's husband, this Ramachandra Pillai and their father Muthusami Pillai as representing the defendant who was then a minor. It is the plaintiff's case that, sometime thereafter, the defendant was himself adopted by Ramachandra Pillai into the new family to which Ramachandra Pillai had passed and he contends that having been so adopted away, he has no more rights in the original family, and it is in that eventuality, she says, she is entitled to the plaint properties in schedules II and III. Schedule IV properties which came from Subbaroya Pillai, she would admit would then, belong to the defendant solely, so that, one important question in this case has been whether the adoption of the defendant by Ramachandra Pillai has been proved. The Subordinate Judge found on the evidence1 that it must be taken that the adoption has not been proved and that, in fact, it was a false assertion, made by the defendant and his brother, the plaintiff's husband. There is a good deal of evidence to show that this adoption was not true in fact, for very soon after Ramachandra Pillai died, the properties of Ramachandra Pillai were claimed by his widow, Valliammal. She got a transfer of patta of the property in her name to start with. There is nothing to show that Vencatachella Pillai objected to that course being adopted. Nextly, we have a suit brought by a stranger, a Nattukottai Chetti for a debt alleged to be due by Ramachandra Pillai against Valliammal as his legal representative. The suit was decreed and a considerable bulk of the properties of Ramachandra Pillai was sold and purchased by the Chetti himself. The defendant subsequently brought a suit to have the sale set aside, but ht did not continue that suit and obtained no relief. Subsequently, we find some reversioners of Ramachandra Pillai bringing a suit against this Chetti in which Vencatachella Pillai and Valliammal were both made parties. In that suit Vencatachella's alleged adoption was disputed and there was a finding arrived at that the adoption was not true. The main evidence which was put forward in that suit to support the adoption was a Will supposed to have been executed by Ramachandra Pillai. That Will was also found to be not genuine. It was decided that the plaintiffs in that suit were the reversioners, which meant that the truth of the adoption was negatived. No appeal was filed by Vencatachella Pillai against this decision, although there was an appeal by the other parties. Again a subsequent suit, vide Exhibit H, which the defendant and his brother, Anantanarayana, brought, the latter as an assignee of the mortgage in favour of Ramachandra Pillai and the former as adopted son, was dismissed. The finding there also was against the adoption, but no further steps were taken in that litigation either to establish the adoption. We find, therefore, that immediately on the death of Ramachandra Pillai the defendant's supposed adoption was disputed, and every time it went before the Court, the decision was against the truth of the adoption.
7. Further we find certain transactions which also go against the truth of this adoption. As has been already stated, the bulk of the properties of Ramachandra Pillai was sold and purchased by Nattu Kottai Chetti but there were some properties still left and they were conveyed by Valliammal to a relation of hers, one Muthu Velaguden. Of course, she could not validly have done this if the adoption was true, and yet no steps were taken by the defendant to dispute the validity of that sale.
8. These and other circumstances referred to by the Subordinate Judge in his judgment show very clearly that it is not possible to find that the adoption was in fact proved. No doubt, on the other hand, it is pointed out to us that in spite of all these adverse decisions, Vencatachella, the defendant, went on asserting that he was the adopted son of Ramachandra Pillai in the numerous documents which he executed till about May 1916, Why he did so it is difficult to say for certain, but the Subordinate Judge has given what he considers to be the possible reason for it, and it is not unlikely that that may be the motive that made him continue to assert that he was the adopted son of Ramchandra Pillai. Anyhow the fact of the adoption, we must take it, has not been proved, and we agree with the Subordinate Judge on that point.
9. It was then suggested that, because the defendant went on asserting that he was the adopted son of Ramachandra Pillai, he must now be estopped from saying that he is a member of the same family as Anantanarayana Pillai for, it is contended that, if he had not done so, Anantanarayana Pillai might himself have formally divided himself off from Vencatachella Pillai and secured his share for his wife and daughters, and as by the latter's conduct, Anantanarayana was misled into not doing that, an estoppel arises against the defendant. We are not able to accept this argument for, in the first place, it is not denied that if theadoption is false, Anantanarayana knew the whole truth about it, perhaps to a greater degree than the defendant himself A person who knows the truth can hardly be allowed to rely upon an estoppel arising from a false representation. No estoppel can arise where the truth is known to the part who claims the estoppel. Vide Mohcri Bibee v. Dharmodas Ghose 5 Bom. L.R. 421 : 8 Sar. P.C.J. 374 (P.C.). In the second place, there is absolutely nothing to show that Anantanarayana Pillai ever intended to divide from Vencatachella Pillai who was asserting that he was the adopted son of Ramachandra Pillai. There is thus no basis for the estoppel pleaded.
10. Then it is said that by the document, Exhibit A, there was a severance of coparcenary between Vencatachella Pillai and Anantanarayana Pillai. On this point 11 e Subordinate Judge has held against the plaintiff and in 'favour of the defendant. The document is a curious one. It calls itself 'a deed of union' and it u in fact an attempt by the two brothers Anantanarayana and Vencatachella to unite with the third brother, Ramachandra Pillai, who had been adopted away into another family. It purports to be an agreement by which the properties of all the three brothers were put together with a statement that they should be, when a division takes place in the future, divided into three shares equally, that, if any uterine brothers are born, they are also to take jointly with them, and in fact, that the three brothers are to treat themselves as members of joint family. It is contended for the respondent that this deed, as a matter of legal consequence whatever the parties might have intended, resulted in the severance of co-parcenary between the plaintiff's husband and Vencatachella Pillai, for it is said that two members of a joint family could not constitute themselves into a unit and take in a stranger, without themselves being treated as divided. In our opinion the intention of the deed is clearly not to divide but to combine, and if the deed has failed to do that, it has failed of its purpose. It may be valid, as a matter of contract between the stranger, Ramachandra Pillai, and the two brothers members of the joint family but it does not sever the latter's co-parcenary. In fact it expressly says that no party to the deed is to assert that any portion of the property belongs to him separately or exclusively. It provides for future born children, to be made sharers. It no doubt also provides that the eldest man was to manage all the properties and keep the accounts. It was suggested that this and the fixing of the share as one-third to each of the parties are indications that a division was intended, and the case in Balkishen Das v. Ram Narain Sahu 5 Bom. L.R. 461 : 8 Sar. P.C.J. 489 (P.C.) was cited as an authority for the partition that a definition of shares will result in the family being treated as divided. But that case is very different because there was a present allotment of the different shares with a statement in the deed that any person who wanted to separate may take his share and leave the joint family and the others may continue in joint enjoyment. Here there is no such provision. Exhibit A does not contemplate a division but it expressly says that in case the defendant who was then a minor becomes of age, the properties are to be divided in future into three shares. That amounts to nothing more than a mere statement as to what each person would be entitled to in case of a division if no brothers are born. We cannot accept that as indicating that Anantanarayana Pillai and the defendant intended to divide themselves off from each, other inpresenti by that deed.
11. It was next argued that certain dealings between the parties and the conduct of Anantanarayana Pillai and the defendant showed that they had treated themselves as divided in status and that they were really so divided. It is this part of the case that the Subordinate Judge has found in favour of the plaintiff and given her a decree for half of the properties in schedules II, III, and IV. We are unable, however, to follow the Subordinate Judge in the view that he has taken on this part of the case. He says that the commonality between Vencatachella and Anantanarayana came to an end about a year before the latter died, meaning that they were living separately. Then he refused to certain lease-deeds of the lands taken in the name of the defendant alone, and to certain debt bands being taken exclusively in Anantanarayana's name. He then refer to two documents, Exhibits C and C I, which were two pro notes assigned over by endorsement by the defendant to Anantanarayana. Pausing here for a moment we do not think that any of these circumstances are of any value m showing that Anantanarayana Pillai and Vencatachella became divided. It is not the plaintiff's case that there was any division just before the death of Anantanarayana. Her case is that from very long ago, since the date of Exhibit A and certainly after the date of the alleged adoption, the two were not members of joint family but were divided. The endorsement that the Subordinate Judge refers to leads to no conclusion whatever without knowing more about the nature of the debt for which these pro-notes were executed. We only know that was a transfer by endorsement by one member of a family to another of two notes; this is of no evidentiary value in considering the question whether they were divided or not. The transactions may have taken place even if they were undivided if for example they were dealing with self-acquired properties.
12. Then the Subordinate Judge refers to an instalment of kist being paid in Anantanarayana's name, though previously all along it had been paid in the defendant's name. He refers to Exhibits E and X and XI series, in support of this. How this indicates that Vencatachella divided off from Anantanarayana it is difficult to imagine. No reliance has been placed by the learned Vakil for the respondent before us on this circumstance. We are unable to attach any significance as the Subordinate Judge seems to have done to the assingments of the pro-notes or to the payments of kists. We think they are all circumstances quite consistent with the parties remaining in the same state as they were before.
13. Then the Subordinate Judge says, 'the following facts strongly militate against the supposition that it was the intention of Anantanarayana and defendant in cultivating and enjoying the lands jointly, to do so as members of a co-parcenary and he refers to the defendant, Vencatachella masquerading to all the world in the disguise of Ramachandra Pillai's adopted son. We have already referred to this circumstance and, whatever the reason for his having done so may be, it certainly does not indicate 'any intention on his part to divide himself off from his brother. In fact apparently these men were of opinion that, even after the adoption into another family, they could remain as members of the original family or bring themselves back into it as they have attempted to do in Exhibit A in the case of Ramachandra Pillai and continue as members of the original joint family.
14. Another circumstance has also been referred to, viz., that Vencatachella Pillai adopted the Saivite faith of Ramachandra and performed funeral ceremonies to him. This may be some evidence on the question of the truth of the adoption, but we have already held that the evidence on that point is strongly the other way. If has little or no bearing upon the question of division. In fact it is not urged by the learned Vakil for the respondent that it is any basis for any inference that there was any division between the brothers. Anantanarayana and Vencatachella were originally members of a joint family and, unless the plaintiff is able to show some act on their part which amounted to a division of status, at any rate between them such as any unambiguous declarations of one party to the other, that he was thereafter to be considered as divided in status from the other, we must hold that the original joint family status has not been affected and they continued joint family till the death of Anantanarayana Pillai. In these circumstances it would follow that Vencatachella as the undivided brother of Anantanarayana Pillai is entitled to all the plaint properties and that the plaintiff's suit should have been dismissed altogether. Accordingly we allow the appeal and dismiss the plaintiff's suit.
15. As the litigation was in part at any rate brought by the way in which Vencatachella Pillai himself behaved by asserting that he was the adopted son of Ramachandra Pillai, we think that in this case the costs should not follow the event. Each party will bear their costs in the lower Court and in the appeal, but in the memorandum of objections we direct the plaintiff will pay the costs of the defendant. The memorandum of objections is dismissed with costs.