Appeal No. 373 of 1915.

1. The object of the suit in which these appeals arise was to obtain a declaration that the 1st defendant was not the adopted son of one Gopalakrishnayya and that the plaintiff was entitled to 1/15th share of the property in Schedule A to the plaint, to recover the same from the defendants, to obtain an apportionment of the property with reference to bad and good soil and for other reliefs. The 84th and 85th defendants, unless the 93rd defendant was validly adopted by Manikyam, the 92nd defendant, would be the nearest reversioners of Gopalakrishnayya and the plaintiff, who is the remoter reversioner, claims 1, 15th share of the estate under a deed of arrangement entered into between the 84th and 85th defendants, who had obtained a surrender of the properties from Gopalakrishnayya's mother Rangammah on 23rd November 191-1, and the rest of the presumptive reversioners living at the time. Gropalakrishnayya had died on 30th July 1-895 leaving a widow Ammama, who died subsequently on 3rd November 1911 whereupon the properties devolved on Gopalakrishnayya's mother, Rangamma, who would be about 90 years old and is still alive. The main contest was between the whole body of reversioners on one side basing their title on the surrender by Rangamma and on the other the 1st defendant claiming to have been validly adopted by the widow Ammama and the 93rd defendant claiming to have been adopted by Manikyam, the 92nd defendant, the widow of one Koniah, a deceased first cousin of Gropalakrishnayya and who would, therefore, have a better right to the reversion than the 84th and 85th defendants. The defendants in the suit are, besides the reversioners other than the plaintiff, various other persons who are in possession of different items of property under some claim or other, either by transfer from the reversioners or from the widow or otherwise. The 91st defendant, it may be mentioned, is the National College of Masulipatam to which a gift was made of 1/15th share by the reversioners. A large number of issues were tried and in the result the learned Subordinate Judge decreed the plaintiff's claim. We shall deal with the different questions argued before us in the several appeals and memoranda of objections in their order.

2. On the question relating to the authority alleged to have been given by Gopala-krishnayya to his widow Ammama to make an adoption, we have no hesitation in agreeing with the conclusion of the learned Subordinate Judge. The burden of proving that the adoption was made under proper authority lay upon the 1st defendant, but having considered the evidence of the defendant's witness on this point, we are not at all satisfied that Gopalakrishnayja gave authority as is alleged. Gopalakrishnayya died on the 30th July 1895 and the case of the defendant is that the authority was given to the widow on the same day. It is not clear upon the evidence what he actually died of. The evidence adduced in support of the authority to adopt is that he died suddenly, and that the illness, whatever it was, only occurred on the very date of his death. The man who is alleged to have treated him, the defendants' 14th witness Amba Narasayya, says that he hardly knew what the matter was with this man, but however that may be, the most important evidence on which Mr. Ramachandra Aiyar naturally relies in support of his case is that of the 13th witness for the defendants, a second grade Pleader. He says that he came to know Gopalakrishnayya as both of them were fond of music and used to meet at music parties and theatres The learned Subordinate Judge has discussed this evidence at great length and his conclusion is that the testimony of this witness cannot be acted upon. Be paints out that this witness's name did not appear in any of the lists of witnesses but that he was summoned only a few days before the defendants let in their evidence, and was not served with summons until the day before he was examined. The explanation as to why his name did not appear in any of the previous lists of witnesses is that it did not transpire that he was present at the time of Gopalakrishnayya's death or knew anything about the alleged authority to adopt, until the defendants' 14th witness Amba Narasayya happened to be questioned by the Pleader for the defence when he disclosed this man's name. We find it impossible to believe that if this witness was actually present at the deathbed of Gopalakrishnayya, his name would not have been known to everybody else present there and that the defendants would not have known from the very beginning that this man knew about the authority to adopt. The other men who were present at Gopalakrishnayya's bedside were ordinary villagers and if the defendants' 13th witness was also there and heard the deceased give authority to his wife to adopt a child on his death, it is fairly certain he would have been one of the first to be summoned to give evidence in the case. As regards the other witnesses the Subordinate Judge has dealt with their evidence in paragraph 128 of his judgment and we are unable to say that his estimate of their evidence is incorrect. Farther the circumstances of the case strongly support the conclusion of the trial Judge. The authority is stated to have been given in 1865, but it is not mentioned in any sort of document or writing until the very date of adoption, that is till 1911. If any such authority had been received by Ammama, it can be assumed with certainty that there would have been more than one occasion to mention the fact during all these years. Ammama was seriously ill in 1898 and the Subordinate Judge is right in pointing out that if she had any authority to adopt, she would have made some attempt to carry out her husband's wishes at that time. The absence of all reference in Exhibit FF to any such authority also negatives the supposition that the authority was actually given. It is pointed out by the learned Subordinate Judge that the story of the defence is that from the very birth of the 1st defendant Animama wanted to adopt him. If there was the least truth in the suggestion we cannot understand why, if she had received authority from her husband, she would have refrained from making the adoption till the very last day of her death. We, therefore, agree with the Subordinate Judge that the adoption of the 1st defendant is not valid.

3. The adoption of the 93rd defendant by Manikyam, the widow of Koniah, is said to have taken place on the 29th October 1911, that is to say, previous to Exhibit S, the deed of surrender executed by Rangamma on the 23rd November 1911. Manikyam at that date was 30 years of age and it is not disputed that though the authority to adopt had been given to her by her deceased husband 14 years ago, she made no attempt to adopt all this time, and there can be little doubt upon the evidence that if she did make the adoption as alleged, it must have been brought about more or less hurriedly and with the object of defeating the reveisioners of Gopalakrishnayja who, it is said, were anxious to get hold of the estate by means of a surrender from Gopalakrishnayya's mother, Rangamma. Manikyam bad also * inherited from her husband somewhat valuable properties of the value of Rs. 15.000 and we have no hesitation in saying that if she was at all anxious to adopt in accordance with the authority given by her husband, she would have made the adoption long before 191l. The suggestion made on behalf of the appellant 'is that it was at the time that Ammama was taken ill that the idea occurred to her advisers, especially the 1st defendant who was the gomasta of both Ammama and Manikyam, to have an adoption made by Manikyam in order to make sure that the property of Gopalakrishnayya did not go to the reversioners. There can be no doubt that the relations both of Ammama and Manikyam on the one hand and of the reversioners on the other were anxious to secure to themselves the property which was in the possession of Ammama and which on Ammama'a death would devolve on Rangamma, the mother of Gopalakrishnayya.

4. The learned Subordinate Judge, having considered the evidence on both sides, has some to the conclusion that the story of the adoption of 93rd defendant is not true. He has found himself unable to accept the testimony of the witnesses of the defendants who speak to the adoption taking place on the 29th October 1911, and is inclined to accept the evidence of the witnesses of the plaintiff residing in the village of Guraza where the adoption is said to have taken place. They all state that they never heard of any such adoption and that if there had been one, they would have known of it. Most of the witnesses in support of the adoption are relations of Manikyam or Ammama, but that in itself would not, in a case of this nature, throw discredit on their testimony if we were in a position to say on a view of the undoubted facts and probabilities of the case that the story set up is true. The 93rd defendant at the time of the alleged adoption was 7 or 8 years old; he belonged to a very poor family in Kavu-tharam. He used to go to a school at Kavutharam and the case is that he was brought to Guraza on the 29th October, which happened to be a Sunday, and after the adoption was hastily performed on the same day, he went back with his parents to his village. From the school register it appears that he attended school as usual on the 30th. It is observed by the learned Judge that it is hardly likely that if the boy had been adopted, the adoptive mother would have allowed him to return to Kavutharam on the same day. The Subordinate Judge also comments on the fact that though his original name was said to have bean changed and under the law, being affiliated to the family of his adoptive father, he would henceforth be known as the son of his adoptive father, no alteration was made either in his name or in that of his father in the school register. As regards the actual ceremony, the Saturdinite Judge is impressed by the fast that no sufficient publicity was given to the adoption and the adoption was not celebrated as one would expect it to be, having regard to the fact that Manikyam was in fairly well-to-do circumstances. The absence of any music at the time of the ceremony, as specially pointed out, was a circumstance against the truth of. the story of the defence. There is one very important circumstance noted by the Subordinate Judge which militates against the theory of adoption, that is, the fact that the boy did not perform the shradh ceremony of the adoptive father which took place about 20 days from the date of the alleged adoption. Then the evidence is that he performed the two succeeding ceremonies at the village of Kavutharam while Manikyam herself was living at Guraza. It is also to be noted that the boy did not live with Manikyam at all for a long time after the alleged adoption.

5. There are also other very significant circumstances which support the decision of the Subordinate Judge. On the 24th November 1911, when the deed of surrender was presented for registration, it appears that a representation was made to the Sub-Registrar that, as a matter of fact, Manikyam had adopted a son and, therefore, Rangamma was not entitled to make a valid surrender. Exhibit LLLL is one of those petitions and it was sent by post and received by the Sab-Registrar on the 24th. Exhibit LLLL (1), the other petition, was presented to the Sub Registrar personally by the brother of the 81st defendant. It is curious that in none of these petitions, the name of the adopted son is mentioned, and we do not think that any proper explanation has been given for this omission. The Sab Registrar who was examined in the case says that the 81st defendant himself was present at the time of registration of Exhibit S and when asked for the name of the adopted son, he replied that the boy would come before the public in the course of a short time. We are asked to say that the evidence of the Sab-Registrar on the point is false. The Subordinate Judge, who saw the witness, did not find sufficient reason for disbelieving him; but apart from that, when we remember that there was so much anxiety displayed by the appellant's party to object to the registration of the deed of surrender and to set up an adoption, it is difficult to sea why the name of the adopted son, if the adoption had actually taken place, should not have been put forward.

6. Then we find that the Will alleged to have been executed by Manisyam, (sic) XXX, and the deed of sale purporting to have been executed by her, Exhibit UUUU, both bear the date of 29th October 1911, the date of the alleged adoption. The adoption is mentioned in Exhibit XXX, and there can be very little doubt that the main purpose for which Exhibit XX was executed, whenever it might have been executed, was to supply evidence of this adoption. The Subordinate Judge has found that both these documents have been antedated, and it seems to us that there is force in the reasons given in support of this conclusion. If, as a matter of fact, the Will was executed on the 29th October, it is not at all clear why, having regard to the anxiety which Maniky am and her advisers had to defeat the contemplated surrender on the part of Rangamma, no steps should have been taken at once to register this document. Then in Exhibit LLLL it is mentioned that certain documents "executed between the said Manikyam and the adopted son were about to be registered," and this could not possibly refer to the Will or to the deed of sale, Exhibit UUUU, and it is not explained why if the Will had been in existence it Was not mentioned in Exhibit LLLL. One would have thought that if Exhibit XXX was in existence at that time, it would have been presented before the Sub-Registrar in support of the story of the alleged adoption. The truth seems to be, as suggested by the trial Judge, that Manikyam had no idea of adopting, but when her own relations and advisers found that the reversioners were going to obtain a surrender from Rangamma, they thought it necessary to give out that Manikyam had actually made an adoption. It may be assumed that Manikyam could not be persuaded to yield to the wishes of her advisers and make an adoption, but apparently it was not found easy to secure within the short time at their disposal a suitable boy whose parents or guardians would agree to such terms as would suit the purposes of Manikyam's relations and advisers. For instance, the brother of Mankiyam is claiming a valuable portion of the properties belonging to the estate of her husband, under a conveyance said to have been executed on the date of the alleged adoption. In these circumstances we must confirm the finding of the Subordinate Judge that the alleged adoption of the 93rd defendant has not been proved.

7. The surrender of Rangamma is attacked mainly on the ground that it is not a bona fide transaction, inasmuch as she received Rs. 6,000 as consideration for making the surrender in favour of defendants Nos. 84 and 85 who were the nearest reversioners. The property is of the value of about l/2 lakhs yielding an annual income of something like Rs. 10,000 At the time of the surrender, Rangamma was about 80 years old. It also appears that defendants Nos. 84 and 85 came to an arrangement with all the remoter reversioners as regards this property, and it may reasonably be that one of these persons will succeed on her death. The plaintiff, who seeks to recover his share under an arrangement of purchase from the surrenderees, is one of the remote reversioners. The question of law is undoubtedly one of difficulty, but so far as this Court is concerned, we must take it as settled by resent decisions reported as Keretti Brahmanaikudu v. Kereti Mahalakshmi 17 Ind. Cas. 487 : (1913) M.W.N. 433 : 24 M.L.J. 533 : 13 M.L.T. 468 and Challa Subbiah Sastri v. Palury Pattabhiramayya 31 M. 448. In the previous case it was arranged at the time of the Surrender that part of the property would be reconveyed to the brother of the widow, and there was also a stipulation that she was to receive Rs. 400 though the amount apparently was not actually paid. Even in the face of these facts it was ruled, following the earlier case of Challa Subbiah Sastri v. Palury Pattabhiramayya 31 M. 448, that the surrender was a valid one. We think that the present case is covered by those decisions. Mr. Ramachandra Aiyar tried to distinguish the present case from that in Challa Subbiah Sastri v. Palury Pattabhiramayya 31 M. 448, on the ground that there is an observation by Mr. Justice Sankaran Nair that if part of the property be reconveyed to the widow in pursuance of an understanding at the time of the surrender, that might make a difference. But this observation is only by way of obiter, the main principle of the decision being that the fact that the consideration for the surrender was a reconveyance of a portion of the property, though to a third person, does not ipso facto invalidate the surrender. In this the consideration for the surrender, which would not amount to more than Rs. 6,000 at the most, was but a very small fraction of the entire property.

8. It is also argued that inasmuch as a house site worth about Rs. 600 is not included in the deed of surrender, the surrender cannot be said to be the entire estate as the law requires and is, therefore, bad. We do not think that there is any force in this contention. It is a very insignificant fraction that is not included in the surrender, very likely through inadvertence, and this cannot be held to affect the substance of the transaction. It was further sought to be argued by Mr. Ramachandra Aiyar that the so-called surrender was in fact an alienation of the properties by the widow to a number of persons, some at least among them being strangers not concerned in the reversion. He suggested that the surrender was a mere cloak in order to support alienations in favour of strangers. But this case was never sought to be made in the lower Court. No doubt in paragraph 6 of the 1st defendant's written statement there is a vague averment of conspiracy, but it cannot be said to have been intended to put forward a case that what purported to be a surrender in favour of the nearest reversioners, viz., defendants Nos. 84 and 85, was really meant by Rangamma to be a cloak for supporting alienations in favour of strangers. No such issue was raised and the learned Subordinate Judge, who dealt with every matter raised during the trial at great length, has not alluded to any such question in his judgment. The surrender then was of practically the whole estate without reserving any portion of it to the widow, though a small sum of money was paid to the widow. In these circumstances the validity of the surrender is concluded so far as this Court is concerned by the decisions in Keretti Brahmanaikudu v. Kareti Mahalakshmi 17 Ind. Cas. 487 : (1913) M.W.N. 433 : 24 M.L.J. 533 : 13 M.L.T. 468 and Challa Subbiah Sastri v. Palury Pattabhiramayya 31 M. 448.

9. Then another point was raised by Mr. Ramachandra Aiyar that so far as the gift to the National College of 1/15th share of the property is concerned, it was not shown to have been accepted by the trustee of the College, as neither he nor the Secretary produced the deed at the time of the trial. The gift was not of an onerous nature and there is no reason for saying that it has not been accepted by the trustee. As a matter of fact both in the lower Court and before us in the arguments on behalf of the 1st defendant it was persistently and earnestly urged that it was the trustee and other persons interested in the National College that brought about the surrender. We do not think that there is any substance in this objection.

10. The next point urged before us is that this suit is not framed as a suit for partition and the Subordinate Judge was not right in declaring the shares of the different parties and in giving a decree for partition. As we read the plaint, it is a suit for partition and it has been so treated by the lower Court. The whole case has been tried on that basis.

11. The first point taken in the appeal on behalf of the 3rd defendant is that he should not have been made liable for mesne profits of item No. 9 in the schedule. It is suggested that he was in possession of that item on behalf of his minor natural son, the 1st defendant. It has been pointed out that the 1st defendant is not entitled to the property, and as the 3rd defendant himself was in actual possession of the property, we think he has rightly been made liable for mesne profits. As regards costs, it is suggested that some issues were decided in favour of the 1st defendant and the 3rd defendant and, therefore, the Sub Judge was not right in awarding the whole costs against them. Bat they failed on the substantial questions raised in the trial and we do not think that the Subordinate Judge was wrong in his order as to costs.

12. This disposes of the appeal by the 1st and 3rd defendants. Appeal No. 373 of 1915 is dismissed with costs.

Appeals Nos. 420 and 421 of 1915.

13. These appeals must be dismissed with costs, on our finding that the adoption of the 93rd defendant did not, in fast, take place.

Appeal No. 384 of 1915.

14. This appeal relates to certain properties which belonged to the estate of Konayya and were inherited by his widow Manikyam. She sold these properties to her own brothers by Exhibit UUUU for Rs. 5,000, which has been found and rightly so found to be a wholly inadequate consideration, assuming that it was paid. Mr. Narayanamurthi wishes to support the sale on the strength of Exhibit II, a Will executed by Konayya. His contention is that under this Will Manikyam became sole owner of the property, inasmuch as no child was born to her. But it has been found in fact that there was no miscarriage and that a female child was born to Konayya after his death and died shortly after its birth. The last clause in the Will to which reference is made says,

"if no such (child) should be born, the adopted son which my wife according to her pleasure may take, or my wife Manikyam should enjoy the * * * property."

The gift to Manikyam is contingent on the child she was carrying not being born alive; this contingency did not happen as the child was in fact born alive and, therefore, the contemplated gift did not take effect in favour of Manikyam. This was the only question raised before us in the appeal which was argued only on behalf of defendants Nos. 3 and 4.

15. The appeal fails and is dismissed with costs.

Appeal No. 422 of 1915.

16. This appeal raises the question of the validity of the lease of item No. 1 in the schedule granted by Ammama on the 4th December 1893 for 20 years to her father for a rent of Rs. 1,500 a year. The lease will expire in 2 years' time and the question argued before us is whether such a lease is competent for the widow to grant. The Subordinate Judge has found that in the circumstances it could not be said to be an improvident lease and has upheld it. It appears that the tenants, who were in possession of the lands, were creating difficulties and it was probable that without consider-able litigation no rent would have been realised from them. We find that as a matter of fact Ammama's father had to bring a number of suits in order to eject the tenants who were denying his title and to recover the lands. It is stated that rent reserved in the original lease granted to Gopala-krishnayya was Rs. 1,900. But having regard to the difficulty of realising the rent, the Subordinate Judge is right in saying that the reduction of rent was justified. No doubt the lease was executed by Ammama in favour of her father, but it is difficult to say that it was done with a view to favour him as Ammama in fact prosecuted her father in a Criminal Court on some charges in connection with the accounts of her property. We are not, therefore, prepared to differ from the conclusion of the learned Subordinate Judge that the lease, under the circumstances, was a fair and bona fide transaction. That being so, it is undoubtedly valid in law. Mr. Ramadoss on behalf of the appellant also claims interest on the rents decreed to him. But having regard to the frame of the suit and the fact that the rents decreed were mostly for periods subsequent to the institution of the suit, we do not think we would be justified in giving him interest.

17. Item No. 2 in the schedule was bought by Ammama's father at a Court auction. The property was under mortgage to Ammama's husband Gopalakrishnayya and in order to enforce it, a mortgage suit was brought and in pursuance of the decree in that suit it was brought to sale. It was sold for Rs. 600 and odd, although the decretal amount was about Rs. 2,000. Ammama's father was apparently a fairly well-to do man and had sufficient means to buy this property. It is found that after him his son, the 2nd defendant, has been in possession, paying kist or Government revenue, It also appears that in a suit instituted by Rangamma against Ammama for maintenance, Ammama disclaimed all interest in this property; and in the proceeding before the arbitrators in the dispute between Ammama and her father, she did not claim the property as her own. These facts go to show that the property really was bought by Ammama's father bona file and not as benamidar for Ammama. Much reliance is placed on an entry in the account-books of the Pleader who acted in the proceedings in the mortgage suit. These accounts show that a ledger was opened in Ammami's father's name and this property was purchased on his bahalf. There is, however, a transfer of a small sum of Rs. 2 12 0 to Ammama's ledger, she being debited with this amount as it was incurred in respect of cost for taking delivary of the property. We do not think that this is sufficient to outweigh the other evidence which goes to show that the property was bought by Ammama's father on his own account. The burden lay upon the plaintiff to prove that the transaction was of a benami character, but far from that burden being discharged the evidence shows that the purchase was not benami.

18. Item No. 10 in the schedule, which consists of 25 cents of land, appears to have been made a gift of by Ammama to her Purohit, the 73rd defendant, on the occasion of the Kistna Pushkaram. It is alleged that there is no registered instrument to evidence the gift and, therefore, it must be disallowed. No such plea, however, was taken and the question was not raised before the lower Court. We cannot, therefore, allow it to be raised now. This objection as regards item No. 10 is, therefore, disallowed.

19. Appeal No. 422 of 1915 fails and is dismissed with costs. So also the memorandum of objections in Appeal No. 373 of 19)5 argued by Mr. Ramadoss.

20. The memorandum of objections in Appeal Nos. 422 of 1915 filed on behalf of defendants Nos 5,6, 7, 8, 9 and 21 relates to iteme Nos. 11, 15, 12, 16, in the schedule. As regards item No. 11, the Subordinate Judge has awarded mesne profits at the rate of 6s. 20 for all the shares and as regards item No. 15 he has awarded at the rate of 15 tooms an acre and at Rs. 50 a patti. It is contended that, as a matter of fact, these items are not in the possession of the 7th defendant. No doubt in his evidence he denies that he is in possession. But it is expressly alleged in the plaint that these items are in the possession of the 7th defendant and in his written statement there is no clear or positive denial of the allegation in the plaint. As regards item No. 12, the Subordinate Judge has given mesne profits at Rs. 50 per patti and we are not in a position to say why he ought to have awarded, as is now contended, Rs. 44 and not Rs. 50. As regards item No. 16, the Subordinate Judge has awarded Rs. 480-6-0 while, as a matter of fact, the amount claimed is Rs. 413. The decree will, therefore, be modified by reducing the amount to Rs. 413, otherwise the memorandum of objections fails and is dismissed with costs.

21. The memorandum of objections in Appeal No. 373 of 1915.

22. (For the memorandum of objections argued by Mr. Ramadoss vide under Appeal No. 422 of 1915 supra.)

23. As regards the memorandum of objections of the 76th defendant (13th respondent) the mesne profits awarded will be reduced to what is claimed against him in the plaint.

24. The 2nd defendant's (2nd respondent's) memorandum of objections: The Subordinate Judge has found that the 14 cents, which is part of item No. 2, belongs to Ammam a and we do not see special reason for interfering with that finding. Nor is there any ground for interfering with the conclusion of the Subordinate Judge as regards the liability of the 2nd defendant for the mesne profits of item No. 9. The technical objection, however, to the form of the decree with reference to item No. (1) is well founded, inasmuch as this item of property is under a lease and will not expire till sometime in 1918. The Subordinate Judge was not, therefore, right in so framing the decree as to give the plaintiff a present right to partition of this property. We think that there ought to be a paragraph in the decree after paragraph 2 to this effect that the tight of the plaintiff to item No (I) of schedule be declared subject to the lease hold interest of the 2nd defendant under Exhibit HHH. As a consequence of that in the third paragraph of the decree, after the words "other than items" add "I and 2." The paragraphs will be re-numbered. Subject to the above modifications of the decree the memorandum of objections is dismissed with costs.

25. The 18th respondent's memorandum of objections: This relates to a part of item No. 20 amounting to about 7 acres and odd. This property was sold in auction in execution of the decree obtained by Rangamma against Ammama. The Subordinate Judge has found that the purchase by the 1st respondent, who was the gomasta of Ammama, was made on behalf of Ammama herself. There is considerable evidence in support of this finding which is also in accordance with the probabilities of the case. The memorandum of objections is dismissed with costs.