Madras High Court
Machingal Potte Veetu Alias Thakke ... vs Machingal Potte Veetu Alias Patinhara ... on 25 March, 1938
Equivalent citations: AIR 1939 MADRAS 564
ORDER Madhavan Nair, J.
1. Plaintiffs 1 to 4 and defendants 28 to 43 are the appellants. The second appeal arises out of a suite instituted by the plaintiffs to recover arrears of maintenance.
2. Seetha and Pattu were two members of a tarwad called the Machingal Pottai Veettu tarwad. The second defendant is the son of Pattu. In 1866-67 Valia Parvathi and Kunju Menon (a female and a male), two children of Seetha, were adopted by Pangi Menon Kandi Achan who was the sole remaining member in his tarwad known as Tekkai Veettu tarwad. The plaintiffs in the present suit are the descendants of Valia Parvathi through her daughter Seetha (see the Genealogical tree given in paragraph 9 of the Munsiffs judgment). The suit properties cover 20 items. Of these, items 1 to 12 are Putravakasam properties granted to Seetha, the mother of Valia Parvathi, by her husband Chathu Achan who ultimately became the Palghat Raja, items 14 to 20 belong to the Pottai Veettu tarwad. Admittedly the plaintiffs are members of the Tekkai Veettu tarwad. They, however, claim maintenance from the defendants, who are members of the Pottai Veettu tarwad on the ground that Valia Parvathi, their ancestors, though given in adoption to the Tekkai Veettu tarwad, continued to retain her original status as a member of the Pottai Veettu tarwad. They contended that in spite of the adoption the adoptees still remained members of their original family. They also contended that the adoptees and their descendants acquired, apart from status, right to the properties of Pottai Veettu tarwad on pleas such as estoppel and prescription. This latter contention was raised in issues 11 and 13 which are as follows:
11. Have the adoptees or their descendants acquired apart from status any right to the properties of Pottai Veettu?
13. Can aright to maintenance be acquired by prescription and have the adoptees and their descendants Acquired such a right to the properties of Pottai Veettu?
3. They also raised various other contentions which need not be considered for the purposes of this second appeal.
4. On the first contention which was the subject-matter of issue 9:
What was the result of the adoption on the status of the adoptees with, regard to the membership in Pottai Veettu?
5. The District Munsiff found that the adoptees lost their status as members in Pottai Veettu tarwad as a result of their adoption. On issue 11 the learned District Munsiff recorded the following, finding:
I therefore held that the defendants are now estopped from denying that plaintiff shave, all the rights which the members of Pottai Veettu have over the properties thereof. As Valia Parvathi had for over the statutory period dealt with, the properties of Pottai Veettu as a member would have done, she and her descendants through her have acquired by prescription all the right which they would have had if they had (not?) been adopted. Both by prescription and by estoppel the rights of plaintiffs have been perfected.
6. In view of the findings on issues 11 and 12 no separate finding was recorded on issue 13. As a result of the findings on issues 11, 12 and 13 a decree for maintenance was passed in favour of the plaintiffs. The finding on issue 11 was based on a consideration of the evidence which related, amongst other things, mainly to the dealings of the properties of the Pottai Veettu tarwad by Valia Parvathi after the adoption.
7. In appeal the learned Subordinate Judge agreed with the District Munsiff in his view that Valia Parvathi and Kunju Menon, the adoptees, lost their status as members of the Pottai Veettu tarwad as a result of their adoption by the Tekkai Veettu tarwad. On the second point, that is, the point covered mainly by issues 11 and 13, he differed from the District Munsiff and in the result the Munsiff's decision was set aside and the plaintiff's suit was dismissed. But it must be mentioned that with regard to items 1 to 12 the learned Subordinate Judge held the plaintiffs have a joint right with some of the defendants but that that right cannot be enforced in this suit.
8. In second appeal, Mr. Variar's first argument on behalf of the appellants is that in spite of the adoption of Valia Parvathi and Kunju Menon by the Tekkai Veettu tarwad, they still retained their status as members in their natural family. On this point the main argument is that adoption under the Malabar Law amongst the Nairs, to which community the parties belong, is in the krittrima form, and as according to this form of adoption the adoptee does not lose his rights of, inheritance in his natural family, Valia Parvathi and her descendants are still members of the Pottai Veettu tarwad. According to Moore's Malabar Law there are said to be three kinds of adoption in use in Malabar: (1) adoption by ten hands. This form of adoption is very rarely used except in Brahmin families. It is probably almost identical with the Hindu form of adoption. (2) Adoption by chammata, that is, by burning a pan of sacred grass, (3) Adoption by taking into the family. The last is the form commonly adopted by Brahmin widows and Sudras for the purpose of perpetuating the family when it is in danger of becoming extinguished. The learned, author says:
Whatever religious motive may be attached to the first two modes of adoption the third mode appears to be based on entirely secular motives and to be closely akin to the krittrima form of adoption which is still in force in the Mithila country.
9. To the same effect is the law stated in his Manual of Malabar Law by Mr. Ramachandra Aiyar. Arguments have proceeded on the assumption that the adoption in the present case was of the third type. Both these writers say that this kind of adoption is akin to the krittrima form of adoption, but they do not say, that, in consequence, as in the krittrima form of adoption recognised in the Mithila country, the adoptee in Malabar does not lose her rights in the natural family. It is argued that this conclusion should be accepted by analogy. When they say that this form of adoption is akin to the krittrima form of adoption the two text writers refer to Mayne's Hindu Law. Mr. Ramachandra Aiyar refers to Sections 182 to 187 and Mr. Moore refers to Sections 184: to 190 in the 5th edition. In the latest edition of Mayne, 9th edition, pages 279 to 281 we find the following statement in Section 208:
The systems of adoption in force in Malabar vary according as the adoptive family is governed by the Marumakkathayam or by the Makkathayam rule of inheritance.
10. In Section 209 it is stated that:
Among families which trace descent by sons, three systems of adoption prevail. The first strongly resembled the krittrima.
11. The statement of the law contained in Mayne in the latest edition does not apparently support the statement of the above-mentioned two text writers that the third form of adoption is akin to krittrima form. What the statement of Mayne was in his 5th edition I was not able to gather as that edition is not Available for reference. In the well-known case of Vasudevan v. Secretary of State for India (1887) I.L.R. 11 Mad. 157, the learned Judges commenting on the evidence of the witnesses examined in that case point out that the appointment of an heir to an illom by a Nambudri widow is called krittrima adoption in contradistinction to pattu kayal dattu which is the regular and religious adoption prevalent among the Nambudris. (See page 177.) At page 174 they state that the krittrima form of adoption does not sever the adoptee from his natural family and that "this is precisely the effect of appointing a person as heir." When it is said that the krittrima form of adoption prevails amongst the Nairs, does it necessarily mean that the incident that the adoptees does not lose his rights of inheritance in his natural family, which is the consequence of that form of adoption in the Mithila country, should also be the consequence of the adoption in Malabar where the customary law of Marumakkathayam prevails? Their Lordships of the Privy Council observed in Raman Menon v. Raman Menon (1900) 10 M.L.J. 245 : L.R. 27 I.A. 231 : I.L.R. 24 Mad. 73 at 80 (P.C.), that:
There is no sacred book or other writing having legal authority, and there is no series of decisions which can be appealed to in order to determine the circumstances under which and the consents if any subject to which the karnavan for the time being can adopt strangers to the family and thereby make them and their descendants heirs to its property.
12. In the same judgment their Lordships observed generally that:
Litigation between Nayars in South Malabar has to be decided according to the laws and usages of these persons. These laws and usages are very peculiar; some of them are so well established as to be judicially noticed without proof. But others of them are still in that stage in which proof of them is required before they can be judicially recognised and enforced.
13. Malabar Law is essentially a customary law. In Veluthakal Chirudevi v. Veluthakal Tarwad Karnavan (1916) 31 M.L.J. 879, it was observed by Sankaran Nair, J., that:
In deciding questions as to customary law (in that case the question related to partition under Malabar law) if there are texts or series of decisions we should follow them; otherwise such a question has to be decided upon evidence.
14. It is admitted that there are no texts explaining the rights of adoptees under the Malabar law. The same in the case with regard to decisions also. As mentioned in Mr. Justice Sundara Aiyar's book at page 31:
As to whether as a rule the persons adopted lose their rights in their natural family or only gain rights in the family into which they are adopted without losing any of those rights, has not yet been finally decided.
15. Then the learned author gives the following summary of the decisions of this Court having a bearing on the point. In Andale alias Shekhara Pisharodi v. Secretary of State (1893) 3 M.L.J. 242, a case relating to Pisharodies, it was contended that the latter wag the effect, but their Lordships held that such a custom was not made out. In S.A. No. 1555 of 1894, the District Judge of South Kanara sent down an issue, to be tried by the Court of first instance whether according to the rule of law and custom in Aliyasanthana families if a woman is adopted she retains her old rights or loses them. The Sub-Judge Mr. Ghandu Menon found that the evidence adduced by the plaintiff to show that women of the caste of the parties adopted into other families did not lose their rights in their natural families, was good so far as it went but was insufficient to establish a custom. He found however that the conduct of the parties and the documentary evidence showed that in that, particular case the adoption did not sever the status, and that as understood by all the parties from, the beginning the adoption conferred on her a status in the new family in addition to that which she had at the time and not in super session of it. In second appeal in giving effect to this conclusion their Lordships repel the argument of the appellants so far as it rested on the analogy of the Hindu Law by referring to Chandu v. Subba (1889) I.L.R. 13 Mad. 209 and observing that even under that law there is the krittrima form of adoption in which the adopter retains his original status to which they liken the adoption, in question. Having regard to the facts of the case the decision of the Travancore High Court in Velayudam Eswaran v. Ramaswami Iyer 7 Travancore H.C.R. 66, cannot I think be extended to cases, of adoption arising in Malabar; at any rate the learned Judges do not purport to base the decision on considerations applicable generally to Malabar as a whole. In the absence of decisions or texts bearing on the point, it is not safe to decide on the mere ground that the adoption in question has been compared to the krittrima form, that the adopted persons do not lose their rights of inheritance in their natural family. When the text writers say that the form of adoption resembles the krittrima form I think what they purport to emphasise mainly is this, that the adoption is based purely on secular motives and that it has no religious significance, and nothing more. As I have said, the law applicable to the case being essentially a customary law, the question can be decided only by having recourse to evidence as to custom in the absence of texts or express decisions of this Court. In neither of the lower Courts was the question raised as to whether according to the customary law of Malabar persons adopted lose their rights in the natural family. The point was raised in the plaint and denied in the written statement. The evidence, such as it is, says the respondents' learned Counsel, does not support the plaintiff's case. However, as the question is an important one, and as the learned Counsel for the appellants says that the appellants are prepared to give evidence on the point, I think this second appeal cannot be satisfactorily decided without calling for a finding from the lower Court on the question whether, according to the form of adoption prevailing amongst the Nair community in Malabar the persons adopted lost their rights in the natural family. It is open to both parties to adduce fresh evidence on this point.
16. The next point raised relates to the dealings of the properties by the adoptees, which it is alleged, will show that they have acquired what may shortly be described as prescriptive title to these properties, even though as a result of the adoption they may have severed their connection with their natural family; and reliance is placed on Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrulu Garu (1901) L.R. 28 I.A. 81 : I.L.R. 24 Mad. 387 (P.C.). This is the question raised in issues 11 and 13 on which the learned District Munsiff after a detailed and careful examination of the documents gave his finding in paragraph 50 of his judgment which I have already quoted. The learned Subordinate Judge has dealt with the point in paragraph 8 of his judgment somewhat summarily. He says, after referring to the points of attack against the District Munsiff's finding:
With regard to properties belonging to Pottai Veedu, all that the documents show is that an attempt was made to combine the two tarwads so that while Valia Parvathi would retain her exclusive right to the Tekkai Veetu properties she might also gain to have an interest in the Pottai Veetu properties. I fail to see how any estoppel can arise.
17. He does not deal with the question of prescriptive rights considered by the District Munsiff. This part of the plaintiff's case was considered in considerable detail by the learned District Munsiff. That the plea is not an unusual or an unimportant one is clear from the fact that in S.A. No. 1585 of 1894 Mr. Chandu Menon though he found that there was no evidence to support the custom that the adoptees did not lose their rights in their natural family, yet held that "the conduct of the parties and the documentary evidence showed that in that particular case the adoption did not sever the status" and the High Court accepted the finding. The Subordinate Judge has set aside the finding of the District Munsiff on what appears to me a very meagre consideration of the question. I would therefore ask the lower Court to submit a fresh finding on the question raised in issues 11 and 13 after discussing the evidence already on record. Mr. Anantharamier on behalf of the respondents says that even if the Subordinate Judge comes to the same finding as has been arrived at by the District Munsiff, still the plaintiff cannot in law claim right to the Pottai Veetu properties on account of any such ground as estoppel or prescription. This question may be argued after the receipt of the finding. As all the evidence on this point has been already adduced, I allow no fresh evidence.
18. In case the lower appellate Court finds that the plaintiffs are entitled to claim maintenance, the learned Subordinate Judge will record a finding as to the rate and amount of maintenance that may be claimed by them from all the suit properties. The learned District Munsiff has given his finding on this question but the Subordinate Judge has not considered it. To avoid any further remand the lower appellate Court will also record a separate finding as to what amount of maintenance the plaintiffs may claim from items 1 to 12 alone.
19. Whether the plaintiffs"can in this suit claim maintenance at least from the admittedly Puthravakasam properties items 1 to 12 in any event, will be considered if necessary after the receipt of the findings.
18. Findings will be submitted within a month after the reopening of the High Court after the midsummer recess. Time for objection ten days.
19. Finding:
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20. The case coming on for final hearing after the finding the Court made the following, ORDER
1. The facts necessary for appreciating the point for decision have been already stated in my order calling for a finding. The findings called for have been submitted 'and now the second appeal has to be disposed of on the findings.
2. The first point relates to the question whether the plaintiffs, who are the descendants of Valia Parvathi whowas adopted into the Tekkai Veetu tarwad, have any rights to the Pottai Veetu tarwad from which family Valia Parvati was taken in adoption. The evidence with regard to custom, in support of the contention of the appellants and against their contention, has been given; and the learned Subordinate Judge has submitted a finding that the plaintiffs have failed to show that according to the custom of adoption prevailing among the Nair community, a person adopted still retains his or her rights to the property of the family to which he or she belonged before adoption. The finding of the District Munsif and of the Subordinate Judge was to the same effect.
3. It is argued by Mr. Variar appearing for the appellant that the evidence shows that though a person is adopted into another family, that person still retains the right to the properties of the original family. I have been taken through the evidence in the case. After giving my best consideration to it, I must hold that the evidence is very inconclusive to show that after adoption the adopted person retains the right to the properties of the family from which his adoption was made. I confine my remarks only to the facts of the present case and this decision on the question of custom should not be taken as a general decision which will cover all cases of adoption in Malabar. Each case will have to be decided on the evidence which the parties put before the Court in that case. I must say that there is a certain amount of evidence in support of the plaintiffs' case but that evidence, as I have said, is not conclusive enough to establish the custom set up.
4. The next point relates to the question of prescription. It was alternatively contended by the plaintiffs that if it is found that they did not retain their rights after adoption, they are still entitled to claim the properties, because for over 12 years the properties of the original family were dealt with by Valia Parvathi as if she had a right to those properties and therefore by prescription she has acquired rights to them. On this point, the District Munsiff found originally in favour of the plaintiffs and the appellate Court did not accept that finding. The learned Judge now records a finding against the plaintiffs. Now, that finding has been attacked by the Counsel for the appellants. The question, having regard to the evidence, is one of some difficulty to decide. From 1867 to 1880, it is clear that the two tarwads after adoption separated from each other. Then we have a set of documents to show that Valia Parvathi dealt with the original tarwad properties. When I say 'original' I mean the properties of the family from which she was adopted; along with one or other of the members of that family as if the properties belonged to her. Among the documents referred to on the plaintiff's side, there is at least one document which shows that with respect to a portion of one of the items, no right was exercised by Parvathi, that is, the Paramba portion of item 20. But it is argued that the evidence with respect to the rest of the dealings are sufficient to show that Parvathi exercised rights with respect to the other tarwad items 14 to 20 which will show that her prescriptive rights is established to those properties and so the plaintiffs can claim a right in them. Mr. Kuttikrishna Menon has drawn my attention to a series of documents, which, he says, would show that with respect to the properties, dealt with in those documents members of the original family carried on transactions without any reference to Valia Parvathi at all. Some of those documents have not been printed. The lower Court has not considered those documents but relying on the documents of the plaintiffs themselves, it has come to the conclusion that the right claimed has not been established. As I said, of course, if the dealings for over 12 years of the character described, that is, claiming right to the properties dealing with them have been established, then, a right by prescription can be declared in favour of the plaintiffs. Whether such a right has been established appears to me to be a question of fact, which should be judged on the evidence in the case. Now, the Judge has considered this matter very carefully and in second appeal, I must treat the finding as a finding of fact. The inferences drawn from documents on which the finding has been based are questions of fact which cannot be upset in second appeal, I would therefore accept as a question of fact the finding arrived at by the learned Judge on this point.
5. The third point relates to the question as to whether the plaintiffs are entitled to maintenance from what are called the Puthravakasam properties with regard to items 1 to 12. There is no dispute that they are Putravakasam properties with respect to which the plaintiffs claim rights of maintenance. The plaintiffs also claim that they are entitled to claim money rights maintenance represented by Exs. A and B. It is alleged by the appellants that Exs. A and B are assignments of usufructuary mortgages over items 14 to 19 of the suit properties. The respondents state that Exs. A and B cover only portions of items 17 and 18 and that Ex. A is not an assignment at all. The Subordinate Judge who heard the appeal refers to these properties in three places in his judgment. In paragraph 5 he says:
The money right, which Exs. A and B represent must be taken to have been acquired by Chathu Achan for the benefit of all his children.
6. In paragraph 8 again he says:
The properties which Chathu Achan acquired for the children (items 1 to 12 and the money rights as per Exs. A and B) were acquired in the names of all his children including Valia Parvathi.
7. Then in paragraph 10 he says:
With regard to items 1 to 12 and the money rights represented by Exs. A and B, they are what my be described Putravakasam properties in which Valia Parvathi and her descendants, the plaintiffs, are jointly interested with the other descendants of Sitha senior and Chathu Achan.
8. There can be no question that items 1 to 12 and the money-rights represented by Exs. A and B are Puthravakasam properties from which the plaintiffs are entitled to claim maintenance. As regards items 1 to 12 there is no dispute at all. But as the parties cannot agree as regards the items which are covered by Exs. A and B, one side saying that Exs. A and B cover items 14 to 19 and the other side saying only portions of items 17 and 18, a finding has got to be called for from the lower Court as to the maintenance which the plaintiffs are entitled from Putravakasam rights represented by Exs. A and B; and what rate of maintenance the plaintiffs are entitled to out of those properties. As regards items 1 to 12, the lower Court has stated that the plaintiffs are entitled to Rs. 60 per annum and the minor plaintiffs to half that rate. I accept that finding.
9. Now, I shall deal with the question raised by the respondents as to whether the plaintiffs are entitled to, claim maintenance at all from the Putravakasam properties. The argument advanced is this. These properties were acquired after the adoption, that is, after Valia Parvathi lost her rights by adoption in the original family. Therefore, it is argued that the present plaintiffs should be treated as only co-tenants of these properties and the right that they can claim is only for partition and not for maintenance. It appears to me that these properties were acquired by Chathu Achan with the intention that his wife and children should be benefited by them and though Valia Parvathi was adopted into another family, it does not make her any the less entitled to the benefits out of the properties acquired by Chathu Achan and gifted by him to his wife and children of whom she is one The relationship which is natural and the right which is personal and individual as distinguished from the right to the properties of the tarwad cannot be disrupted by the adoption. In any event, it cannot be disputed that they are entitled to claim mesne profits on the properties, the only argument being that in this suit such a relief cannot be claimed but as I have said I do not think the affiliation of this Parvathi to another family can take away her and her children's right to claim maintenance from the Putravakasam properties. I must therefore overrule this argument.
10. The only point now remaining for decision after the finding will be what rate of maintenance the plaintiffs will be entitled to from the Putravakasam rights which they claim under Exs. A and B. The finding will be submitted within four weeks after the receipt of this order and ten days for objections.
FINDING of 15th October, 1937 * * * * * * *
This second appeal coming on for final hearing the Court delivered the following JUDGMENT No objections have been filed. I accept the finding. The result is that the plaintiff will be given a decree for Rs. 795-10-1 for the suit perior till the date of payment. The contesting defendent. 1 to 26 will pay half the plaintiff's costs throughout.