Krishnaswami Ayyangar, J.:— Kasiviswanathan Chettiar is the appellant in this appeal. He was defendant 1 in the suit out of which it has arisen. That suit was filed by respondent 1 for partition and recovery of a half share in the joint family properties in the possession of the appellant. There were two other defendants who are respondents 2 and 3 here. Defendant 2 is a purchaser of a half share of a house which originally formed part of the joint family property and the purchase was from defendant 1. Respondent 3 is the minor son of respondent 1. The plaintiff, respondent claims that he has been duly adopted on 20th April, 1923 to one Sevugan Chetty who was the elder brother of the appellant. Sevugan and Kasiviswanathan are the sons of Sevugan Chetty whom we shall call Sevugan the senior. The adoptive father Sevugan junior had died on 27th March, 1908 leaving a widow Meyyammai who died in 1918. The adoption would thus appear to have been made after the death of the adoptive parents and was brought about by Sevugan senior with the consent of the appellant also. Under the ordinary Hindu law, such an adoption cannot be upheld. The only person who can make an adoption is the adoptive father if alive and after his death his widow and none other. But it is said that among Nattukottai Chetty community to which the parties belong, there is a custom permitting an adoption to be made to a person after his death and the death of his widow by the father or other pangalis of his. This custom has been found by the Subordinate Judge, and accordingly he has given a decree to respondent 1 as prayed. The main question which arises in the appeal is as to whether the evidence adduced in the case is sufficient to make out the custom. Before we refer to the evidence of custom, it is necessary to refer to certain other admitted facts. On the date of the adoption, viz., 20th April, 1923 a deed of adoption called a muri which is the name by which such deeds are known in the community was brought about and it runs thus:

As saffron water has been partaken to the effect that Palaniappan alias Somasundaram (respondent 1) son of Subrahmaniam Chetty Yegappan of Devakottai, shall be as a son born to his ownself to Sevugan Chetty (junior) Sevathan of Ilayathakudi in Shanmuganathapuram Keelavasal nadu and of Peru Maruthu in Kulasekharapuram, Sevathan's Kari (proprietary right) bhoomi (land)……Davadanam (endowment to temple)……Somasundaram (respondent 1) shall hold and enjoy stridhanam, bhoodanam (landed property) and all of Meyyammai……and shall do all the sadangus (ceremonies)…..I wrote this saffron water muri.

2. The document is in the handwriting of the appellant and was signed by him as the first of the signatories to it. The second signature is that of Sevugan (senior) who has signed himself as Subrahmaniam Chetty Sevathan. The third signature is that of Yegappan the natural elder brother of defendant 1, adopted son. The fourth signature is that of Karuppan Chetty who is the maternal uncle of Sevathan's (junior's) wife. The last signature is that of one Lakshmanan Chetty who is a brother of respondent 1's mother in the natural family. It would thus seem that not only the appellant and his father were parties to the adoption but the near relations of the family had taken part in having the adoption made. This was followed in 1925 by a division effected by Sevugan (senior) of certain villages and house sites between the appellant and respondent 1. In this division the appellant got for his share a village and certain sites and respondent 1 another village and some other sites.

3. On 11th February, 1925 a most important document came into existence showing the position of respondent 1 as conceived by Sevugan (senior) and the appellant. This document 13 Ex. A termed a yadast, and it provides for the properties of the family being kept undivided for a period of seven years and directs a division of the same in equal shares between the appellant and respondent 1 thereafter. A few days later, on 20th February, 1925 Sevugan (senior) died. The appellant and respondent 1 seem to have got on amicably together as members of the same family for a number of years thereafter. In fact, we find that on 21st July 1926 a garden belonging to the family was divided, the appellant taking the southern half and respondent 1 the northern half. Quarrels however arose between the parties sometime later, but we are not concerned either with the actual cause of the quarrel or with the subject-matter thereof. The present suit was instituted on 4th April, 1936 for a partition and recovery of the remaining properties of the family consisting of a house and a large amount of money remaining in the hands of the appellant in the shape of cash and outstandings. Before we proceed to consider the question of custom, we must mention the significant circumstance that in regard to the properties already divided between the parties no question whatever is raised.

4. As we have already observed the sole question for determination is whether the custom has been made out. The proof adduced consists purely of oral evidence. No documents showing that adoptions of the kind in question have been made in the community have been filed nor has there been any occasion in which the custom has come up before Courts and been recognised. We may also observe that the evidence adduced on behalf of respondent 1 is rather meagre in quantity consisting as it does of four witnesses and nine instances two of which alone can be said to relate to old adoptions. The first witness for the plaintiff is Somasundaram. He has deposed that he had his third son adopted to his deceased first son after the death of the latter and also of his widow. This adoption is said to have been made in 1929 and the second son of Somasundaram is said to have given his younger brother, the third son, in adoption to his deceased eldest son. The second instance mentioned by the witness is of an adoption said to have been made in 1930 after the death of one Muthiah and his widow. His dayadis (agnates) had a boy Palaniappa adopted to Muthiah. The criticism is that in spite of the adoption the adopted boy resided in the family house of his natural parents and the witness is unable to say anything about the properties either in the natural or in the adoptive family. The third instance of adoption is of comparatively recent date, namely 1934 or 1935. This adoption is said to have been made to one Ramanathan after the death of himself and his wife and the adoption was brought about by his father's brother's grandson.

5. The second witness for the plaintiff is Muthukaruppan and he has deposed to two instances of adoptions made to a man after his death and the death of his widow. One was the adoption of the witness himself in 1914 to one Muthukaruppan by the latter's elder brother. The natural elder brother is said to have given the witness in adoption and the property of the adoptive parents was taken by the adopted son. The witness also speaks to another instance where the nearest pangalis of one Narayana Chetty had a son adopted to him after his death. The adopted son took the properties of Narayanan. When this adoption took place is not made clear in the evidence of this witness. It is pointed out that so far as this adoption is concerned, the appellant himself has admitted it in his evidence as D.W 5. It also appears that another witness cited for the appellant, namely, D.W 3, also admits the adoption though he had no direct knowledge of it. Witness 3 for the plaintiff is Kasi Chetty and he speaks to his own adoption made in 1935 to one Karuppan Chetti after his death and the death of his widow. The adoption was made by the senior paternal uncle's son of Karuppan Chetty the adoptive father.

6. The last witness who has been examined with reference to this custom is P.W 4 Venkatachalam. This witness speaks to three instances. Of these two were adoptions made after the institution of this suit. The earlier one was made in 1915 or 1920. The adoption in this instance was to one Pichakutti Chetty after his death by his elder brother Yeerappa. The witness states that this adoption was made 20 or 25 years prior to the date of his deposition. Another instance referred to by the witness is of an adoption made in 1937 or 1938 by Ariyakudi Krishna Chetty of a son to his senior paternal uncle Sattappa. The criticism is that Krishna Chetty is alive and has not been called. The last instance is of the year 1939 and relates to an adoption made by one Meyyappa to his own deceased son also called Meyyappa after the latter's death. The adoption is said to have been made after the death of his son Meyyappa and of his wife. Here again the father Meyyappa who is alive has not been called.

7. This in short is the evidence adduced in support of this custom. We have already stated that the evidence is meagre and relates to instances of comparatively recent dates. We should not ordinarily be inclined to accept the evidence as sufficient to prove the custom but the case of the plaintiffs derives considerable support from the evidence adduced by the appellant himself. D.W 1 Ramanathan Chetty after describing the way in which adoptions among Chettys take place made the statement that when the adoptive father and mother are dead no adoption can be effected. But in answer to a question immediately put by the Court he deposed:

When a father had a son and a daughter-in-law and if both these died the father can make an adoption to the deceased son in case the father has no other sons alive on the date of the adoption. Other pangalis cannot make an adoption to a deceased pangali.

8. This is undoubtedly an admission which goes far to prove the custom upon which the plaintiff has relied. In fact this answer implies that the adoption of the plaintiff was sanctioned by the custom inasmuch as it was made by Sevathan senior, after the death of his son and daughter-in-law. The witness however adds that no adoption can be made to a man and his wife if they the without leaving a daughter or daughters. He also deposed to what apparently was within his own knowledge when he stated that a daughter is competent to make an adoption to her deceased parents. The witness has however given no instances of adoption of this kind. D.W 3 Mahalingam Chetty makes the statement that if the adoptive parents are dead a brother of the deceased cannot make an adoption to the deceased. A senior paternal uncle or a junior paternal uncle can adopt a boy to the deceased brother when he has died leaving a daughter. D.W 4 Somasundaram deposed that an adoption can be made when both the parents the leaving only a daughter but not in other cases and he illustrates his evidence by giving two instances. He states that one Kasi Chetty of Tanicha Oorani was adopted when both the adoptive parents were dead but had left a daughter. He also says that after the death of Kadiresan and his wife an adoption was made to them by his elder brother's son. He adds that Kadiresan had left a daughter.

9. The evidence of the witnesses examined for the appellant undoubtedly goes to make out that there is a custom in the community which permits adoption being made to a person after the death of the adoptive parents. Strange as this may sound, it has to be remembered that secular motives are predominent in adoptions effected among Nattukottai Chettis who more often than not possess considerable property and desire to direct its devolution along approved channels while at the same time ensuring the performance of religious rites to which as Hindus they also attach value. It is true that some of the witnesses examined for the defendants say that such adoptions are permitted only if the deceased parents had left a daughter. The reason for this qualification is explained by D.W 3 Mahalingam by saying that the adoption is made in order to make provision for the daughter being duly given in marriage and for the sadangu and seer murai being properly performed afterwards. This explanation when analysed merely comes to this that when there is a daughter and an adoption is made, the adopted son would, in the natural course of events, give the girl in marriage and also observe the usual conventions of the community in regard to the performance of the subsequent ceremonies, etc. In fact this witness himself admits that to his knowledge an adoption has been made to a person after the death of himself and his wife leaving no daughter behind. To the same effect is the evidence given by P.W 1 when he referred to the adoption made by him in 1929 to his own deceased son who had died leaving no daughter.

10. Taking the evidence as a whole, we are not prepared to say that the learned Judge has come to an erroneous conclusion on the question of the custom. It is not without significance that all through, Sevugan (senior), the appellant himself and all other relations of the parties have acted on the footing that the adoption is valid. The disputes would not have arisen but for some quarrels between the appellant and the respondents sometime before suit. In view, however, of the scanty evidence on, which the finding has been arrived at, we desire to qualify our decision by stating, as the Privy Council did in 40 Cal. 8791 at p. 890, that the effect of the decision is to be confined to the particular circumstances of the present case and that it should not be regarded as a satisfactory precedent if in any future instance among other members of the community fuller evidence regarding the existence or non-existence of the alleged custom should be forthcoming.

11. There is a slight alteration which has to be made in cl. 3 of the decree passed by the lower Court and to this alteration the respondents have raised no objection. Clause 3 of the decree shall run as follows: “That plaintiff is entitled to an account of the family outstandings and that such an account shall be taken, the accounting party being the appellant.” Subject to this modification the appeal fails and is dismissed with costs of respondent 1, one set.

C.R.K/R.K

12. Appeal dismissed.