Chandra Reddy, J.@mdashThis appeal is directed against the jucjgment and decree of the Subordinate Judge of Masuliptam dismissing the Plaintiff''s suit.
2. The Plaintiffs, claiming to be entitled in reversion to the properties of one Boppanna Chandrappa whose aunt''s grand-sons they are, have brought the present suit. The facts of this case are simple and arc not in dispute.
3. One Boppana Chandrappa died in December 1894, leaving him surviving his widow Ramamma. Pie left behind him bulk of properties involved in the suit. During his life-time he brought up one Mangamma Jus wife''s sister''s daughter and married her to his sister''s son one Nagayya, the father of Defendants 1 and 2. This Nagayya was living ever since the marriage with Chandrappa and was assisting him in management of the latter''s properties. On the death of Chandrappa, the widow made an application to the revenue authorities for the mutation of the properties and this was effected under Ex. B-2.
Ever since, Nagayya was in possession and enjoyment of the properties and on his death, these properties devolved on his two sons Defendants 1 and 2. Ramamma died on 22-1-1944. Sometime later, the Plaintiffs claimed unsuccessfully these properties from Defendants 1 and 2 as reversioners to Chandrappa and tin''s obliged the Plaintiffs to file the suit. Plaintiffs 1 and 2 and Defendants 4 to 8 are the grandsons of Chandrappa''s father''s brother. Defendant 8, having become a Christian before the succession opened, lost his share in the reversion, nor does he claim now any interest in it. Plaintiff 3 is a transferee from Defendants 4 to 7.
4. The suit was contested inter alia on the idea behind this institution of illatorn being the mound that Chandrappa took Nagayya the father of sistance to be rendered by the illatorn, there Defendants I and 2 in Illatorn adoption under an reason why it should be confined to a case of arrangement that Nagayya should marry Chand- marriage with the adopter* daughter and not rappa''s wife''s sister''s daughter and help him in cul- tended to a case where the person rendering a fivation and management of his properties and inherit his entire property after his death. The other pleas need not be. referred to here, as the controversy in this appeal centres round the question about the validity of the adoption and the right of the Defendant to retain the property in suit.
5. The trial court found that Plaintiffs are the xeversioners to Chandrappa, but they are not entitled to succeed in the suit as Nagayya the father of Defendants 1 and 2 was the Illatorn son-in-law of Chandrappa and was therefore entitled to the whole inheritance.
6. The finding of the Judge as regards the claim of the Plaintiffs to be reversioners is not challenged before us. The only point debated before us is whether Nagayya could be regarded as the illatorn son-in-law of Chandrappa, & even otherwise his title She properties could be upheld on the ground of an oral agreement between Chandrappa and Nagappa whereby in consideration of Nagayya marrying Chandrappa''s foster-daughter and living with him Chandrappa covenanted that his properties should be inherited by Nagayya.
7. IrKsupport of this appeal, it is argued by the learned Advocate-General that die view of the Subordinate Judge that Nagayya was the illatorn son-in-law of Chandrappa is erroneous. According to him, the essential requisite of an illatorn adoption is the marriage of the adopter''s daughter to the individual and a mere agreement to give a share to the boy in consideration of the latter marrying a girl selected by the adopter would not confer the status of illatorn son-in-law. We feel that effect should be given to this argument.
8. The custom of affiliating a son-in-law and giving him a share, which is called illatorn adoption, has been in vogue in certain communities oi: this stage. This institution is purely a creature of custom and judicial recognition has been given to it. The two essential conditions of this adoption are that the adoptee must marry the daughter of the adopter and there should be an agreement to give him a share though it is not necessary that the marriage should take place before he is admitted into the family.
Either of the two by itself will not be sufficient to constitute a person an illatorn son-in-law, i. e., merely living in the house of the father-in-law and helping him in the management of the property would not make him an illatorn son-in-law. The incidents of this custom have been crystallised into certain rules of law and we need not enumerate them here. Any extension of the incidents would not be permitted unless proved as a special custom.
The only instance where this custom was judicially recognised is where a man has married the .daughter of an adopter. A custom, where a person , by marrying the adopter''s near relation or foster-daughter, was treated as an illatorn son-in-law, has not been brought to the notice of courts. Such a custom requires a very strict proof as it is an uncommon one.
It was urged for the Respondent that the tance marries some girl chosen by the adopter.
10. We are not impressed with this argumeal This custom derogates from the ordinary rule Hindu Law of Succession. Under the Mitaks'' Law which governs the parties in question, a son-j _ law has no rights in the devolution of the property of the last male-holder. The rule of succession ia this regard is altered by the custom to this extent, i.e., by giving a share to the son-in-law even in casa where the natural bom son exists." That custom could not be extended further as its effect wouM be to detract further from the Mitakshara Law d Inheritance. ;
It is the custom and proof of usage that givoj validity to this right. As pointed Out in several JudH cial decisions, common sense and reasoning hav*[ nothing to do with custom and the incidents caonap be extended by parity of reasoning. Reason a create a custom. Logical extension of this rulo is i permissible. If the Defendants have to succeed their contention, they have to prove this partii incident like any other fact which is disputed,
must be continuous, uniform and specific and the am it boy. This'' b instance alone cannot create a valid custom. Further by a Bench
there is no basis for this custom in evidence nor wa i&W carried''''6ut any attempt made in that direction. For these husband.
sons, we must hold that the father of Defendants'' 1 L.-ft is to BeFse and 2 could not be deemed to be the illatorn son-ia. jg (Mad) (D) rel law of Chandrappa, and as such not entitled to foi jy 0f gj herit the property of Chandrappa. on that title.
11. It was altcnutUvely contended by Mr, Mi avala Chowdary for the Respondents 1 to 3, that right of the Defendants could be upheld oa ground of a contract between Chandrappa and Na; yya the father of Defendants 1 and 2. It is his that as Nagayya married Mangamnia tlm foster daughter of Chandrappa only in consideration of Jif promise to constitute him his heir, the requisites of, valid contract are present, and this could be tt.. foundation of the title of Nagayya and the dcfcl*.'' darits to the suit property.
12. This argument is based on some decidklj cases. In Challa Papireddy v. Challa KotiretWy, f-Mad HCR 25 (C) the claim of the Plaintiff to a J.3d share in the property inherited by Defendant l''s fa as the illatorn son-in-law of one Masala Reddy watt*: upheld by the trial Court on the ground that tins: father of Defendant 1 agreed to give him "a shars consideration of the Plaintiff joining him in cuIbY ing the properties and improving then and this agt rnent was ratified and adopted by Defendant 1.
According to the Plaintiff there, he was pat possession of the property by Defendant V$ ft " and even after his death he was in possession enjoyment and it was only some time later he turned out of possession by Defendant 1. It h that the right to property in this case was ed in a suit brought by the Plaintiff; secondly, (no issue as to whether the promisee could merely ion the contract without any tiling more.
In Gangayya v. Mahalakshmi, S.A. 968 of 1885 (D) on the file of the High Court of judicature at Iras one Ramana introduced a boy (Respondent 2 be appeal) into his family agreeing to give his "liter in marriage and 1/2 of his property during llife-time and the other half after his death.
On this promise, the boy continued to live b house of Ramana. But, before Ramana''s dau-rtjrjjlier could be married to this boy she died. Sub-la liently, Ramana selected a girl and after his death riif I in accordance with his instructions his widow ses tried that girl to this boy.
In a suit brought by the reversioners to avoid ild [alienations by the widow in favour of respon-ol it 2 and another it was held by a Bench ol the *0 idras High Court, Muthuswainy Iyer and Brandt that the alienee had acquired a right to the pro-conveyed to him by the widow by virtue of a contract between him and the last male-holder. consideration that flowed from roi-pondeut 2 his continuing to live with Ramana and working him while that moving from Ramana was the sment to give the girl selected by him in marri-to him and a share in his properly.
13. In Bhala Nahana v. Parbhu Hari, 2 Bom 67 one Gosai Ramji took a minor boy into family ing'' to take him in adoption and settle all his ierties upon the boy and also to execute a doeu-,t for that purpose. But before that could be Gosai Ramji died. Thirty years later, his wi-conveyed the properties under a document to boy. This transaction was recognised as valid by a Bench of the Bombay High Court as the low carried out only the instructions and wishes of husband.
It is to be seen that this case and S. A. 968 of (Mad) (D) referred to above belong to the cate-of cases where the widow in furtherance of the les or directions of her husband executes doeu-in favour of the boy to whom her husband to give his property. In other words, she ited the contract entered into between her Aid and another.
14. Asita Mohan v. Nerode Mohan, 20 Cal WN (AIR 1917 Cal 292) (F) does not also substan-pthe proposition of the counsel, for the respon-The competition there was between the adopt-and an after-born aurasa son. At the time of (option, the adoptive father executed an Ekrar-covenanting to give half the share of the pro-in the event of his having a son. Two suits filed by the adopted son and the aurasa son ignition of their claims to properties involved and one of the questions that fell to bo doeid-lerein was, whether the inheritance could be between them equally.
Jhe learned Judges, having regard to Ihe princi-''.pi Dattaka Chandrika, thought that the adopted Could have a share equal (o that of the aurasa They also based their judgment on the Ekrar-"accepting the principle enunciated in 2 Bom It was not an instance where the claim to ''able property was upheld on mere oral agree- Another case quoted by Mr. Chowdary in of his contention is Naraindas v. Ram ami j 20 All 209 (PC) (G). We do not think this pronouncement of the Privy Council renders any sort of assistance to the Respondents. There, a childless person by name Durga Prasad wanted one Ganga-saran the father of a minor to leave the boy with him so that the latter might live" with '' him on condition, that he should give him a share of his property, should he have children of his own. The father assented to this and made over charge of the boy. Subsequently, his widows and mother admitted the boy to joint possession with them.
In a suit by the reversioners for the recovery of the estate, the Subordinate Judge held that though Durga''Prasad made a promise to the father of the boy that he would make him his heir if he had no male issue or would give him a share in his property if he should have such, that did not amount to a contract and was not binding on the reversioners.
On arjpeal by this boy, the High Court set aside the decree of the Subordinate Judge and directed the suit to be dismissed as in its opinion there was a contract between Dui''ga Prasad and Ganga Saran the father of the boy and that the contract was a valid and legal one. In the further appeal to the Judicial Committee it was decided by their Lordships that there was no contract or agreement but there was only "an expectation on each side, on the part of Durga Prasad that if the Respondent continued to live with him and was brought up and educated under his care and control the Respondent would be induced by the prospect of becoming his heir to continue to live with him, and on the part of Ganga Saran that if he gave up the boy, Durga Prasad would have him educated and make him his heir". There is nothing here which in any way advances the case of the Respondents. On the other hand, there is an observation in it, which, in our opinion, to some extent has the force of negativing it. "The only way by which the Respondent could be made his heir was by deed of gift or by a will."
16. Mr. Chowdary quoted to us some decisions of the English Courts and some passages from Pollock and Gritty on Contracts which contain the principle that a promise to give property in consideration of the promisee rendering some assistance or doing something, is a valid one and could be legally enforceable. It is not necessary to refer to any authorities "s the proposition cannot be disputed. There is little doubt that such a contract would be valid. But that does not solve the problem that presents itself here.
The quesiton is whether a contract by itself would confer a title to immovable property on a party to the contract. Apart from inheritance, title to Immovable property could be acquired either under a testament or by way of transfer inter vivos. It is open to the full holder of an estate to bequeath his property by means of a testament or to convey it in praesenti by an instrument as required by the Transfer of Property Act. If a Hindu dies intestate, the property would devolve on his heirs.
If there is a valid engagement entered into bet-Ween the deceased last-male-holder and another person, no doubt, the properly in the hands of the heirs would be bound by the contract and (lie party concerned could enforce it. The mode of creating an interest in immovable properly is prescribed in the Transfer of Property Act. It is only by conforming to the requirements in that behalf that a valid title to the property could be created. When the law prescribes a particular method of conveying the property it implies a statutory prohibition fits being given in any other manner.
17. Mr. Chowdary urged that the provisions ; of the Transfer of Property Act do not cover a case where the last male-holder covenanted with another person to constitute him an heir and that on the death of the last male-holder the promisee becomes the � heir and there is no question of the property devolving on the heir of the last male-holder by virtue of the rules of Mitakshara succession since disposition lias already been made by the last male-holder. We do not think we,can give effect to this argument.
As we have already pointed out, if a person docs mot leave his last will and testament lie dies intestate and the moment it happens, the Hindu Law ol Sue-fjcession comes into play and his property devolves on the heirs in the order of prelerence. So, if a person claiming to have been constituted an heir has not acquired title to this property during the lifetime "of the last male-holder in any of the methods indicated above, he cannot lay any claim to the estate. Tliat is -because a contract by itself would not confer .title on the. promisee. That might furnish a good cause ''of action and he might obtain title by suing for specific .performance of it.
18. Another argument pressed upon us by Mr. Chowdary was that since the property was put in .possession of the 1st Defendant''s father in pursuance �of a contract, his title thereto should be confirmed, having regard to the equitable doctrine of part-performance. We do not think there is any scope for the application of the doctrine of part-performance in the instant case.
The doctrine of part-performance as obtaining in England is not available in this country by way of defence to a suit for evidence except as provided in S. 53-A, Transfer of Property Act. The only exception to the acquisition of Immovable property by means of a duly executed and registered document is that contained in S. 53A, Transfer of Property Act which imports partially the English Equitable doctrine of part-performance. We need not here trace the origin and development of the rule embodied in that section.
If a case does not fall within the ambit of that provision of law, the fact that there was a valid contract for giving some immovable properly will not be a valid defence even if the Defendant was put in possession of the property in pursuance of a contract. Thus, there is no principle of part-performance in India de hors that legislative provision. To attract its applicability, certain conditions should bo fulfilled. On" of the requirements of this section is a written agreement evidencing the terms of the contact. In the present case, there is no such writing, �what is pleaded being only an oral contract. The absence of a written contract would take the case out of the purview of S. 53-A.
This view of ours is supported by the judgment of the Privy Council in
lord in favour of the tenant. After some years, tho landlord served a notice on the tenant to quit. This not having been complied with by the tenant tho landlord sued for recovery ef possession of the land.
The Courts in India dismissed the suit applying the doctrine of part-performance. The High Court thought that it fell within the purview of Maddison v, Alderson (1883) 8 ACC 467 (I) by virtue of which it-must be held that the Defendant was holding under. a permanent lease which the '' plaintiif agreed to. grant and equity shall regard him as having so grant" ed.
The Privy Council on appeal reversed this judg. ment as in the opinion of their Lorships there w no scope for the application of the" doctrine win there was only a verbal agreement, It was also point'' ed out by their Lordships that die right of the tei to enforce his contract specifically to lease out land pennanetly having become barred there coi be no answer to the suit. We may here usefully tract the following observations of their Lordsbij at p 1245 of 58 Cal (at p 82 of AIR):
.... that an English equitable doctrine the provisions of an English Statute relating the right to sue upon a contract, should be appli by analogy, to such a statute as tire Transfer of perty Act and with such a result as to create withoi any writing an interest which the statute says only be created by means of a registered instrumenl appears to their Lordships, in the absence of soi binding authority to that effect, to be impossible, (19) This principle was reiterated by the Judici Committee in
21. The only remedy of a person who has in hit favour a valid contract is to enforce it specifically arid courts do give effect to it directing specific pat*, formance thereof. But equitable considerations carWf not come into play so as to override the statutoirJ provisions of law. Assuming that there was a vaiij contract between Chandrappa and Nagayya thd|j only course open to the heirs of Nagayya was to the assistance of court to specifically euforce it. m our view, the existence of such a contract, assmru" one to exist, by itself would not confer on them t,''i to the property, in dispute.
22. Mr. Chowdary lastly sought to support li judgment of the trial court on the basis of a nutiet? alive will but we must say that no effect could given to this argument as that was not the baits the claim of the Defendants in the court below. . was no pleading in regard thereto, nor an issiw ._ cd. Tins submission is not founded on anv matet on record.
23. It was lastly urged by him that we uphold the claim of the Defendants on the gious&-of adverse possession. Here again, we have to rej this contention for the reason that the Defendant* not advance any such plea nor any evidence add in that regard. The documents do not support theory of adverse possession. Mr. Chowdary " for this purpose to call in aid the statement of D. 3 that Chandrappa put him in possession of perty "because he was his nephew and becatifit gave the girl in marriage to him." We do not i
(F)
Chandra Reddy, J.
(1)This appeal is directed against the jucjgment and decree of the Subordinate Judge of Masuliptam dismissing the Plaintiff''s suit.
(2) The Plaintiffs, claiming to be entitled in reversion to the properties of one Boppanna Chandrappa whose aunt''s grand-sons they are, have brought the present suit. The facts of this case are simple and arc not in dispute.
(3) One Boppana Chandrappa died in December 1894, leaving him surviving his widow Ramamma. Pie left behind him bulk of properties involved in the suit. During his life-time he brought up one Mangamma Jus wife''s sister''s daughter and married her to his sister''s son one Nagayya, the father of Defendants 1 and 2. This Nagayya was living ever since the marriage with Chandrappa and was assisting him in management of the latter''s properties. On the death of Chandrappa, the widow made an application to the revenue authorities for the mutation of the properties and this was effected under Ex. B-2.
Ever since, Nagayya was in possession and enjoyment of the properties and on his death, these properties devolved on his two sons Defendants 1 and 2. Ramamma died on 22-1-1944. Sometime later, the Plaintiffs claimed unsuccessfully these properties from Defendants 1 and 2 as reversioners to Chandrappa and tin''s obliged the Plaintiffs to file the suit. Plaintiffs 1 and 2 and Defendants 4 to 8 are the grandsons of Chandrappa''s father''s brother. Defendant 8, having become a Christian before the succession opened, lost his share in the reversion, nor does �he claim now any interest in it. Plaintiff 3 is a transferee from Defendants 4 to 7. & this stateSerjt could be the foundation for the of adverse possession.
As we have already stated this was not raised in 8 pleading nor an issue framed, and since this was irt; (put in issue, the attention of the parties was not v| /erted to it. That apart, the Subordinate Judge ifci s not prepared to place any reliance on the oral le*j idence. We do not think, we will be justified in tCW bitting the Respondents to raise this plea for the "ts it time and remand the suit for re-trial on the s sis of this. We may also state that this was put g"; ward at the fag-end of the arguments after the JS; ily by the Appellant''s counsel. In the beginning 3$ i counsel for the Respondents stated that he did not j jpose to support the judgment on ground of adverse u| (session.
24. For these reasons, we are constrained to J (aside the judgment and decree of the lower court id give a decree to the nppellants. Since the trial wrt dismissed the suit it did not go into the quos-of mesne profits. Instead of sending the suit ik to the trial Court for the purpose of an enquiry this regard, it was suggested to us that we inij''iil ;elf fix the quantum at a reasonable figure.
We feel that we could reasonably fix it at Rs. per year on the available material. The plain-will have the profits from the date of the suit at rate. We do not think this is a case in which me profits should be allowed from the date of the tth of the widow, having regard to the peculiar stances. There will be a decree in favour of Plaintiffs on the lines indicated above.
25. The counsel for the Respondents 1 to 3 conids that the decree in favour of Plaintiffs should it include properties covered by Exs. B-6 and B-7. is stated on behalf of the Appellants that no claim laid by them to any of these items. That being the properties acquired by Nagayya cither under B-6 or Ex. B-7 would not pass to the Plaintiffs, ugh Plaintiff 1 is not one of the Appellants, this ''ee will enure to his benefit also as this is an action partition and even otherwise we have to exorcise jurisdiction under Order 41 Rule 33, CPC to avoid "icting findings.
26. In tho result, (lie appeal is allowed. No as to costs throughout.
27. Mr. Manavala Chowdary wants us to make ear that this would not prevent his clients from jjreing any rights which they might have under -engagement between Chandrappa and Nagayya jfather of Defendants 1 and 2. It is open to the jgndants to enforce such rights as they might have *r any agreement or contract said to have been ed into between Chandrappa and Nagayya if served.
28. The C. M. P. relating to Ex. B-2 is allowed lis dismissed in other respects.
29. Documents admitted in evidence by order |e Court dated 29-3-1956 arid made.
