Judgement Appeal from a judgment and decree of the High Court (September 11, 1914) affirming a decree of the Subordinate Judge of Guntur. The question in the appeal was whether an adoption of an illatom son-in-law by a member of the Kamma caste who died in 1896, and a subsequent partition between the illatom (and his sons) and a natural born son (and his sons) were valid, having regard to the fact that at the time of the adoption the person so adopting was a member of a Hindu joint family and had a natural born son living. Both Courts in India upheld the adoption. The facts of the case and the basis of the decision in the High Court appear from the judgment of their Lordships. 1919. Feb. 6, 7. De Gruyther K.C. and Parikh for the appellants. The evidence did not establish that there was a custom in the family enabling an illatom adoption. But if an illatom could in proper circumstances be taken, there was no proof that according to the custom the adoption could take place although the adoptive father (a) was a member of a joint family, and (b) had a natural son living at the time of the adoption. If by custom the illatom could be taken into a joint family, he was only entitled, so long as the family was undivided, to the acquired property in the absence of Law Rep. 46 Ind. App. 168 ( 1918- 1919) Nalluri Kristnamma V. Kamepalli Venkatasubbayya 39 evidence of custom to the contrary. In the unreported case referred to by the High Court it appears that when the illatom was taken there was an agreement made that he should receive a share. The onus of proving the custom was upon the respondents Ram Nundun Singh v. Janki Koer. ((19D2) L. R. 29 I. A. 178.) [The following cases in which a custom of adopting an illatom son-in-law has been recognized were referred to Tayumana Reddi v. Perumal Reddi (( 1862) 1 Madr. H. C. 51.); Challa Papi Reddi v. Challa Koti Reddi (( 1872) 7 Madr. ((19D2) L. R. 29 I. A. 178.) [The following cases in which a custom of adopting an illatom son-in-law has been recognized were referred to Tayumana Reddi v. Perumal Reddi (( 1862) 1 Madr. H. C. 51.); Challa Papi Reddi v. Challa Koti Reddi (( 1872) 7 Madr. H. C. 25.) ; Hanumantamma v. Rami Reddi (( 1881) I. L. R. 4 M. 272.) ; Sivada Balarami Reddi v. Sivada Per a Reddi (( 1883) I. L. R. 6 M. 267.) ; Chenchamma v. Subbaya (( 1885) I. L. R. 9 M. 114.) ; Ramakristna v. Subbakka (( 1889) I. L. R. 12 M. 442.) ; Malla Reddi v. Padmamrna (( 1893) I. L. R. 17 M. 48.) ; Narasimha Razu v. Veerabhadra Razu (( 1893) I. L. R, 17 M. 287.) ; Chinna Obayya v. Sura Reddi. (( 1897) I. L. R. 21 M. 226.)] The respondents did not appear. Feb .25. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal by the plaintiffs from a decree, dated September 11, 1914, of the High Court at Madras, which affirmed a decree, dated December 19, 1910, of the Subordinate Judge of Guntur, which dismissed the suit. The suit in which this appeal has arisen was instituted on April 27, 1906, in the Court of the District Judge of Guntur, and was subsequently transferred to the Court of the Subordinate Judge in which it was entered as Original Suit No. 1 of 1910. The plaintiffs in this suit (No. 1 of 1910) were Nalluri Krishnamma and his brother, Nalluri Adinarayudu. The original defendants in this suit were Kamepalli Ramalingam, who is now dead, and his sons, Kamepalli Venkatasubbayya and Kamepalli Seshu. Nalluri Lingayya, who is a natural brother of these plaintiffs, was added as a defendant to the suit on September 17, 1908, and is a nominal respondent to this appeal. He has not appeared, and it has been stated by counsel for the appellants that Nalluri Lingayya has been adopted, according to Hindu law, into another family, and is not interested in the suit or in this appeal. He has not appeared, and it has been stated by counsel for the appellants that Nalluri Lingayya has been adopted, according to Hindu law, into another family, and is not interested in the suit or in this appeal. In 1907 Kamepalli Ramalingam and his sons, Kamepalli Venkatasubbayya and Kamepalli Seshu, instituted a suit in the Court of the District Judge of Guntur against Nalluri Kristnamma, Nalluri Adinarayudu, and others, which was subsequently transferred to the Court of the Subordinate Judge, in which it was entered as Original Suit No. 2 of 1910. The two suits (No. 1 of 1910 and No. 2 of 1910) were tried together by the Subordinate Judge, and the evidence in each suit was used in the other. The Subordinate Judge made a separate decree in each suit. Those decrees were appealed to the High Court at Madras, which dismissed the appeal from the decree in suit No. 2 of 1910, and from that decree of the High Court there has been no appeal. The relationship of the parties to the suit will be seen from the following pedigree — Law Rep. 46 Ind. App. 168 ( 1918- 1919) Nalluri Kristnamma V. Kamepalli Venkatasubbayya 40 Nalluri Lakshminarasu=……. ……… | | … … = | =…… …. | Kristanamma Naidu First Lingappa |Second |wife Kodandarama wife| Naidu | | Died before | | 1896 | | | | | Ramalakshnama = Venkatachalam=… …. Ramakristnammma Died in August 1904 | | | | | | Kamepalli Ramalingam =…… Kristnamma Adinarayudu Lingayya …… plaintiff Plaintiff Defendant | | | Ka m e p a l l i Ka me pa lli Venkatasubbayya Seshu Defendant Defendant The main question in this appeal relates to an alleged illatom adoption of Ramakristnamma as his illatom son-in-law by Lingappa Naidu. If that illatom adoption is established as valid in law the suit of the plaintiffs fails and must be dismissed. The factum of that adoption cannot now be disputed, and is not disputed in this appeal, but it is contended on behalf of the appellants that Lingappa Naidu could not legally take Ramakristnamma as his illatom son-in-law, because at the time of the adoption he had a natural son, Venkatachalam, living, and also because at that time Lingappa Naidu was joint with his brothers, Kristnamma Naidu and Kodandarama, and no custom authorizing an illatom adoption under such circumstances has been proved. The parties are Hindus of the Sudra caste and sub-caste Kamma, and are governed by the law of the Mitakshara, except in so far as that law has been altered by custom. The law of the Mitakshara would not allow a Hindu to adopt a son when he had a natural born son living. But if a custom was proved allowing a Kamma to take an illatom son-in-law when he had a natural born son living, both grounds of objection to the illatom adoption in this case would fail. The three sons of Nalluri Lakshminarasu with their families lived together as a joint Hindu family in the village of Mangamoor, and as a joint family possessed a large ancestral estate and some movable property. Mangamoor is a village of Guntur in Nellore. Lingappa Naidu was twice married. He had by his first wife a daughter, Ramalakshnamma, who over sixty years ago married Kamepalli Ramakristnamma and bore to him a son, Kamepalli Ramalingam, who was the father of the defendants-respondents, Kamepalli Venkatasubbayya and Kamepalli Seshu. By his second wife Lingappa Naidu had a son, Venkatachalam, who was the father of the plaintiffs and of the added defendant. Kamepalli Ramakristnamma was a near relation of Lingappa Naidu, and lived in his house as one of the family, and assisted in the management of the property. Lingappa Naidu took Kamepalli Ramakristnamma as his illatom son-in-law after Venkatachalam was born, and when Venkatachalam was three or four ^years of age promising to give him a share of his property. Law Rep. 46 Ind. App. 168 ( 1918- 1919) Nalluri Kristnamma V. Kamepalli Venkatasubbayya 41 Lingappa Naidu died before 1896. In 1896 his two surviving brothers, Kristnamma Naidu and Kodandarama, and their nephew, Venkatachalam, separated and partly partitioned the family estate. Venkatachalam died on August 23, 1904. The Subordinate Judge found as a fact that Ramakristnamma lived in the family with his wife and children, and that after his death Kamepalli Ramalingam, Kamepalli Venkatasubbayya, and Kamepalli Seshu continued to live in the family, and lived with Venkatachalam after the division of 1896 until about six months before Venkatachalams death ; that finding was not dissented from by the High Court. The Subordinate Judge considered that those facts corroborated the evidence, which he believed, that there had been an illatom adoption. The Subordinate Judge considered that those facts corroborated the evidence, which he believed, that there had been an illatom adoption. In 1904 it was arranged between Kamepalli Ramalingam r as representing himself and his sons, and Venkatachalam, as representing himself and his sons, in the presence of mediators, that their joint family properties should be divided into three shares, and that Kamepalli Ramalingam and his sons should take one share, and should leave the remaining two shares to Venkatachalam and his sons. On September 5, 1905, the plaintiff, Nalluri Kristnamma, signed and presented to the Tahsildar the following statement " The deceased Nalluri Venkatachalam, who was pathadar Nos. 2312, 2313, in Mangamoor, is my father. In the said pattas, which stand in my fathers name, the following thirteen names should be included 1. Myself, Nalluri Kristnamma. 2. Nalluri Andinarayadu. 3. Nalluri Lingayya. 4. Kamepalli Ramalingam.....All these are sharers in the family.” The evidence shows that a joint patta was accordingly issued. In this suit the Subordinate Judge framed the following issues amongst others (ii.) Whether Ramakristnamma. father of the 1st defendant, was taken as illatom son-in-law by Lingappa Naidu, and, if so, whether such taking is valid in law ? (iii.) Whether there was an agreement or arrangement that a one-third share of the family properties should be given to the 1st defendant as alleged in his written statement, and, if so, this agreement or arrangement is valid or binding on plaintiffs ? (iv.) Whether, as alleged by the defendants, there was a partition in November, 1904, and, if so, what properties were divided and allotted to what shares and what properties were reserved for future division or joint enjoyment ? (v.) Whether defendants have joint right with the plaintiffs to the suit properties, items Nos. 8, 15 to 55, and 59 in the plaint-schedule A ; if so, is the suit for declaration in respect of these items maintainable ? For the reasons recorded in his judgment in Original Suit No. 2 of 1910 the Subordinate Judge found the issues (ii.) to (v.) against the plaintiffs. 8, 15 to 55, and 59 in the plaint-schedule A ; if so, is the suit for declaration in respect of these items maintainable ? For the reasons recorded in his judgment in Original Suit No. 2 of 1910 the Subordinate Judge found the issues (ii.) to (v.) against the plaintiffs. On the question whether Lingappa Naidu having at the time of the illatom adoption a natural born son and two undivided brothers living could lawfully have taken Ramakristnamma as an illatom son-in-law, the Subordinate Judge stated " The parties in the present case belong to the Kamma caste, and in this respect" (the right to make illatom adoptions) " there is no difference between them and the Reddis. The practice of illatom affiliation is very common in both castes." There is evidence in this record that the custom of taking an illatom son-in-law is the same in the Kamma caste and in the Reddi caste. The Subordinate Judge then referred in general terms to the witnesses who had given evidence on behalf of Kamepalli Ramalingam and his sons as to the custom of illatom adoptions, and particularly observed that one of their witnesses, a Kamma, had given two instances in which where brothers were living jointly one of them had taken an illatom son-in-law. The Subordinate Judge then stated " Defendants witnesses (that is, witnesses on behalf of the defendants in suit No. 2 of 1910, who are the plaintiffs in this suit) 5, 6, 8, 9, and 11 say that a Kamma takes an illatom son-in-law only when lie has no son or undivided brother. This is a matter of opinion. The Law Rep. 46 Ind. App. 168 ( 1918- 1919) Nalluri Kristnamma V. Kamepalli Venkatasubbayya 42 evidence in this case is insufficient to establish a special custom. But I think that as the custom of illatom affiliation has been judicially recognized, it is for the defendants (the plaintiffs in this suit No. 1 of 1910) to show that a father living with a son and an undivided brother cannot exercise that right. In the present case the first plaintiffs (Kamepalli Ramalingams) father was, I think, treated by all members of the family as an illatom son-in-law, and after his death the plaintiffs (original defendants in suit No. 1 of 1910) continued to live as members of joint family till six months before Venkatachalams death. In the present case the first plaintiffs (Kamepalli Ramalingams) father was, I think, treated by all members of the family as an illatom son-in-law, and after his death the plaintiffs (original defendants in suit No. 1 of 1910) continued to live as members of joint family till six months before Venkatachalams death. I therefore find the first issue in the affirmative." The first issue which the Subordinate Judge so found in the affirmative was " Whether the plaintiffs brother (Ramakristnamma) was taken as illatom son-in-law by Lingappa Naidu, and, if so, whether such taking is valid in law." In the judgment on the appeal the learned judges, Sankaran Nair and Spencer JJ., say " The adoption took place more than fifty years ago, when Lingappa was living with his two brothers as members of an undivided family. Ever since the adoption or marriage, Ramakrishnamma was living with the other members of the family. An illatom son is adopted when assistance is needed by the adoptor in the cultivation of the family estate or for its management ; and, in this case, there is no doubt that Ramakrishnamma participated in the management of the estate. When a partition was effected between Lingappa and his brothers, Ramakrishnamma was treated as a member of Lingappas branch and remained with them. Shortly before Venkata chalams death in August, 1904, there was an agreement for partition between him and Ramakrishnamma. M This, no doubt, is denied by the appellants. But Ramakrishnammas descendants are admittedly in exclusive possession of certain properties which were in the possession of Venkatachalam, and the appellants plea that such possession was obtained by trespass is not proved. Their complaint was dismissed by the magistrate ; and the judge rightly points out that possession by trespass is inconsistent with the fact that the respondents are in possession of portions of properties. After Venkatachalams death, his son, one of the appellants before us, called Ramakrishnamma’s son a co-sharer (exhibit B2). This conduct of the family for about fifty years and the agreement for partition in particular is very strong evidence against the appellants. "It is contended before us that an illatom adoption made when there is a son living is invalid. It is true that an adoption is invalid under Hindu law when the adoptive father has a son. This conduct of the family for about fifty years and the agreement for partition in particular is very strong evidence against the appellants. "It is contended before us that an illatom adoption made when there is a son living is invalid. It is true that an adoption is invalid under Hindu law when the adoptive father has a son. But, illatom adoption itself is opposed to Hindu law, and no presumption of invalidity, therefore, arises on the ground suggested. " The evidence of appellants witnesses is not that the existence of a son alone precludes an adoption, but no adoption can be legally made when there is a son or brother alive. This finds no support in Hindu law, and is in favour of the view that we should not look to the principle of the Hindu law to determine the incidents of the custom. The respondents have proved only two instances of adoption where there was a son, and the judge rightly observes that the evidence is insufficient to prove a custom. But we find that it has been judicially recognized. In the suit out of which S. A. No. 45 of 1905 arose, many instances of illatom adoption by persons who had sons were proved, and this Court held that the evidence was sufficient to prove the custom. We are, therefore, of opinion that Ramakrishnammas adoption is valid, and dismiss this appeal with costs." Their Lordships have had the opportunity of reading the judgments of the Subordinate Judge and of the learned judges of the High Court at Madras in appeal in the case, which in the High Court was second appeal No. 45 of 1905 ; that case has not been reported. In that case, which depended upon the existence of a custom in the Kamma families to which the parties belonged, " fifteen instances were Law Rep. 46 Ind. App. In that case, which depended upon the existence of a custom in the Kamma families to which the parties belonged, " fifteen instances were Law Rep. 46 Ind. App. 168 ( 1918- 1919) Nalluri Kristnamma V. Kamepalli Venkatasubbayya 43 cited in support of it" (the custom), "in the majority of which illatom took place when there were sons existing." Before the decision in second appeal No. 45 of 1905, it seems never to have been expressly decided that a Kamma or a Reddi could not or could lawfully take a son-in-law in illatom adoption when he had a son living, but having regard to the decision in that case and to the fact that the two Courts in the present suit agree that the adoption was valid in law, and as the family for very many years treated the illatom adoption as valid, their Lordships think that this appeal should be dismissed, and they will humbly advise His Majesty accordingly. The respondents, who did not appear at the hearing, will have such costs as they may be entitled to.