(1.) Kasiviswanathan Chettiar is the appellant in this appeal. He was the first defendant in the suit out of which it has arisen. That suit was filed by the first respondent 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. The second defendant is a purchaser of a half share of a house which originally formed part of the joint family property and the purchase was from the first defendant. The third respondent is the minor son of the first respondent.
(2.) The plaintiff-respondent claims that he has been duly adopted on 20 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 27 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 the Nattukottai Chetti 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 the first respondent 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.
(3.) 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., 20 th 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 (first respondent) son of Subrahmaniam Chetti 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) ...Devadanam (endowment to temple)...Somasundaram (first respondent) 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. 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 the first defendant, 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 the first respondent'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 the first respondent. In this division the appellant got for his share a village and certain sites and the first respondent another village and some other sites.