1. Defendants 2, 5 and 6, the representatives of one S.A Subramaniam Chetty, appeal against the decree directing them to pay the plaintiff, who claims to be the adopted son of one Meyyappa Chetty, a sum of Rupees 10,329-3-5 with interest. The plaintiff's case is that Meyappa Chetty entrusted his nephew S.A Subramaniam Chetty, who is described as “a well-propertied man” and a money-lender, with a sum of Rs. 3,812-1-6 for investment. Subramaniam Chetty first deposited the amount in Keemandan M.P Firm at Rangoon and afterwards when he himself commenced business at Rangoon, withdrew the amount from the Keemandan M.P Firm and deposited it in his own Rangoon branch. These deposits both in the Keemandan Firm and afterwards in the S.A Firm, were made in the names of V.M Rm and M. Rm. M. which were the vilasams of Meyyappa Chetty. Meyyappa Chetty died and his widow adopted the plaintiff at the instance of Subramaniam Chetty, who told the plaintiff that he had got this amount deposited with him by Meyyappa Chetty Subramaniam Chetty also is dead, and his representatives are now sued. The defence is that Meyyappa Chetti never entrusted Subramaniam Chetty with any amount and that the vilasams V.M Rm. and M. Rm. M. do not represent Meyyappa Chetty. The fact and validity of the adoption of the plaintiff by the widow also are denied. The Subordinate Judge has recorded findings in favour of plaintiff on all these questions. The defendants appeal.
2. We are of opinion that the plaintiff is the adopted son of Meyyappa Chetty.
3. Meenakshi Aohi, the widow, states that she adopted him, that the pungalis of Meyyappa Chetty took part in the adoption and that the plaintiff has been living with her ever since as her adopted son. She performed the plaintiff's marriage as the son of Meyyappa Chetty. P.W 5 is the man who gave his daughter in marriage to the plaintiff as the adopted son of Meyyappa Chetty and got Meyyappa's daughter married to his son in exchange. He also says that he was present at the adoption. A pungali, P.W 3, also gives evidence in favour of the plaintiff. Subramaniam Chetty's mother, defendant 3, who died before the trial, supported the plaintiff's adoption. She said, when examined in a previous case, that the plaintiff was the son of Meyyappa Chetty. Defendant 5, an executor, who now disputes the adoption, had also described the plaintiff as the son of Meyyappa Chetty in the same case. He did not go into the witness-box and there is no explanation given of the statement made by him at that time. P.W 2 who was employed under defendant 6 also says that defendant 6 attended the adoption. Defendant 6 does not deny the statement; he has not examined himself. The only evidence against this is that of D.W 3 who according to the plaintiff's witnesses, was present at the time of the adoption. He is the father, of defendants to whose admission in a previous suit have already referred. His grand-daughter is married to defendant 2 who is alleged to be the adopted son of Subramaniam Chetty, and the Judge says that from the way in which he gave his evidence he has no hesitation in concluding that he is unreliable. It is argued that the other pungalis who are admitted to have been present have not been examined and that the muri which is admitted to have been written at that time has not been produced. It is not shown with whom the muri is and it was open to the defendants to examine the pungalis. We think that the evidence of the witnesses who were present at the adoption, the acquiescence of the pungalis and treatment of the plaintiff as the adopted son of Meyyappa Chetty by the persons interested are sufficient to prove the adoption.
4. It is then argued that the adoption is invalid as it is not shown that the widow had authority to make the adoption. She proves that her husband had authorized her to make the adoption. Her husband's directions on his death-bed to his relative and pungalis that they should sea the adoption carried out need not be treated, as contended by the vakil for the appellants, as a joint authority in favour of the wife and all these pungalis to make such an adoption. It was also said that there is no evidence of the giving and taking in adoption. We think the evidence clearly proves that there was an authority, a gift and an acceptance. We hold accordingly that the plaintiff is the adoptive son of Meyyappa Chetty.
5. The next question is whether Meyyappa Chetty deposited the amount as alleged, with Subramaniam Chetty. S.A Subramaniam Chetty was apparently a wealthy man. Ex. A aeries clearly show that he deposited a sum of Rs. 3,500 as alleged by the plaintiff with the Keemandan M.P Firm at Rangoon on 16th September 1895. Ex. A-6 shows that the amount belonged to V.M Rm. It was deposited by Subramaniam Chetty in that name, so that Subramaniam Chatty alone might operate on that account though the money really belonged to V.M Rm. It is also proved that S.A Subramaniam Chetty withdrew the amount from Keemandan M.P Firm and deposited it in his own firm when he opened a branch at Rangoon (see Ex. A); and his own accounts also show that the deposit was made in the name of Y.M Rm as the money belonged to the person who was represented by that vilasam.
6. The question that arises for decision then is whether V.M Rm. represented Meyyappa Chetty, the plaintiff's adoptive father. It is not argued in appeal that M. Rm. M. is not a vilasam of Meyyappa Chetty. P.W 1, who was a clerk under Subramaniam Chetty, and after his death under defendant 6, states that V.M Rm represented Meyyappa Chetty and that the latter's money was deposited with Subramaniam Chetty's Rangoon firm. He was not put any question in cross-examination in respect of the deposit. P.W 2 who was a clerk under defendant 6 also says that V.M Rm refers to Meyyappa Chetty. He states that he wrote the letter, Ex. D, to the dictation of defendants 5 and 6. These persons who now dispute the plaintiff's claim were executors under the will of Subramaniam Chetty and they stated in that letter according to the appellant's construction of it that the deposit to the credit of V.M Rm related to Subramaniam Chetty's maternal relative but according to the plaintiff the letter shows that the money belonged to Subramaniam Chetty's maternal uncle, i.e, Meyyappa Chetty. We attach no weight to the contention of the appellants that this letter is not sufficient to prove an admission that the money belonged to Meyyappa Chetty as it only states that it belongs to a relative in the maternal line. Assuming that the term is vague enough to suggest only a maternal relative and not the maternal uncle, the defendants do not say who that relative is. Defendant 6 does not deny the genuineness of Ex. D, nor does he explain to whom it refers. We are therefore of opinion that Ex. D was intended to refer to Meyyappa Chetty. P.W 3, like who, Meyyappa Chetty, belonged to varivayal family, also says that V.M Rm refers to Meyyappa Chetty. We are therefore of opinion that the plaintiff's contention that V.M Rm refers to Meyyappa Chetty is proved and that he is entitled to the amount deposited under that Vilasam.
7. The next question is whether the suit is barred by limitation. It is said that the accounts show that the deposit was made not payable on demand but for periods of two months. In support of this contention, reliance is placed on the entries which calculate interest at thavanai rate, and it is argued that thavand means that the amount is deposited for a period of two months and it would be unreasonable to hold that the person is entitled to draw interest which prevailed for a period of two-months unless the Chetty had security of the use of the money for the same period, and that Article 60, Limitation Act, which only applies to deposits payable on demand, does not therefore apply. On behalf of the plaintiff it is contended that thavanai does not indicate that the amount is deposited for two months, but that it only shows that interest is calculated at a certain rate which prevailed for a period of two months. This contention was not raised in the Court below. But we think that it is unnecessary to determine the meaning of the term, as there is sufficient evidence in the case to show that the deposit was payable on demand and that it was not made for a period of two months. We have already stated that what Meyyapa Chetty probably did was to deposit the money with Subramaniam Chetty to deal with it in any way he liked, and there is no evidence as to what instructions were given by Meyyappa Chetty.
8. The probabilities are that he left it ta Subramaniam Chetty to utilize it in the way most profitable to Meyyappa Chetty. Subramaniam Chetty deposited it with Keemandan M.P Firm at Rangoon on his own responsibility. That deposit was probably for fixed periods of two months and a suit against Keemandan M.P Firm might probably not be governed by Article 60, Limitation Act. Afterwards Subramaniam Chetty withdrew and deposited it with his own Rangoon branch. The accounts were rendered in the first instance to S.C They show that the deposit was made “Oor Maral V.M Rm;” or in other words, it was Subramaniam Chetty himself and not Meyyappa Chetty who deposited it in the Rangoon branch; Chokalingam Chetty, who was the agent at Rangoon, states that instructions to pay thavanai interest were given to him by the principal, i.e, by Subramaniam Chetty. The evidence therefore does not show that Meyyappa Chetty deposited the amount with Subramaniam Chetty on what are called thavanai conditions. It only shows that Subramaniam Chetty directed his firm at Rangoon to pay interest to V.M Rm at the thavanai rate. We have already pointed out that the probabilities are that Meyyappa Chetty would not have imposed any conditions to Subramaniam Chetty as to how the money was to be utilized, but that he would have left the matter entirely to his discretion. The presumption, in these circumstances, is that the money was payable to Subramaniam Chetty to Meyyappa Chetty on demand. If Article 60 applies, it is conceded that the suit is not barred by limitation.
9. It was also argued before us that the plaintiff is not entitled to recover the amount without producing a succession certificates and the decision reported in G. Perayya v. Ahmad Abdul Rahiman Sait(1) is relied upon. That decision was based upon a judgment in Venkataramanna v. Venkayya(2) which has been subsequently overruled [see Subramanian Chetti v. Rakku Servai(3), Pallam Raju v. Bapanna(4)]. The attention of the learned Judge in the Madras Weekly Notes case was not apparently drawn to these decisions. It was also contended that the plaintiff, who was adopted only after the death of Meyyappa Chetty, did not take the property as a co-parcener by survivorship. It is quite clear that ancestral property is not taken by an adopted son as his father's heir and is not bound therefore to produce a succession certificate to recover what is found to be ancestral property.
10. For these reasons we confirm the decree of the lower Court and dismiss the appeal with costs. The memorandum of objections also is dismissed with costs.
S.N/R.K
11. Appeal dismissed.