Mt. Gigi Agarwalani and Another vs Mt. Panna Agarwalani and Others

Sarjoo Prosad, C.J. and Ram Labhaya, J.—The appeal relates, to a suit instituted by the plaintiffs-respondents for a declaration that the adoption by Mt. Gigi Agarwalani the defendant 1 of Sree Bidya Prakash Agarwalla, the defendant No. 2 is illegal and void and the recitals in the deed of adoption dated 5-5-47 are false and incorrect.

The original plaintiffs to the suit were two uterine brothers Senehiram Agarwala and Gobor-dhan Agarwala sons of one Jainarayan Agarwala deceased. Plaintiff Senehiram died during the pendency of the suit and in his place his widow and his other heirs and legal representatives have been substituted.

Plaintiffs have sued claiming as next immediate reversioners of one Sampatrai Agarwala the husband of the defendant No. 1, who died without leaving, any natural born sou. They allege that the defendant No. 1 had no authority to adopt from her husband and therefore any such adoption made by her was illegal and would not affect the reversionary interest.

The relationship of the parties would appear from the following genealogy the correctness of which has not been disputed either in this Court on in the Court below, except in regard to the adoption of Bidya Prakash, which is the subject of the present litigation.

It may be also stated here that Bidyaprakash is the son of Badri Narain Agarwala a brother of Mt. Gigi Agarwalani.

Genealogy Govindram (dead) | __________________________________________________________________________ | | | Joynarayan (died on 15-9-32) Dilsukhrai (died on 8-11-18) Pokarmal (dead) | | | _______________________ __________________ ____________ | | | | | | Senehiram Gobordhan, Pltff-Rspdt. No. 8. Sampatrai Ganpatrai Gangadhar Meghraj. (died on 28-10-49) | (died on 24-7-32) (died on 6-9-18) (dead) =Mst. Krishni (w), | =Mst. Gigi (w), =Mst. Jani (w). | Pltff-Respdt. No. 4. | Dfdt-Applt. No. 1. Nothmal. | ___________________________ |__________________________________________ | | | | | | | | Joydayal. Gouri. Jogdish. Shyam. Must. Surjibai, daughter Bidyaprakash _____________________________________________ of 1st. wife and married (Adopted son) | | | to Harduarmal. Dfdt-Applt. No. 2 Mannaram (dead) Sitaram Sawalram (Adopted on 17-2-47). | on 6-5-53= (Pltff-Rspdt. No. 2). (Pltff-Rspdt. No. 3). Adopted son. Mst. Panna (w) |_____________________________________________ Pltff-Rspdt. 1 (a). | | | Sajan (Pltff-Applt. No. 7). (son born, D/- 26-11-55). | ________________________________________________________ | | | Ramgopal (minor), Motiram (minor), RadhashyamPltff-Rspdt. No. 1 (b) & 5. Pltff-Rspdt No. 1 (c) & 6. (Born on 29-8-53). 3. The defendants filed their written statements raising various pleas, it is contended that Meghraj and his heirs were necessary parties to the suit and in their absence the suit was not maintainable. They repudiated the allegation of the plaintiffs challenging the validity of the adoption and alleged that before his death Sampatrai, the husband of Mt. Gigi, had given directions for adoption and in pursuance of that authority Bidyaprakash had been in fact adopted by Mt. Gigi on 17-2-1947 in accordance with the custom and usage prevailing in the Marwari society by which the Parties were governed; and subsequently a registered deed of adoption was duly executed on 5-5-47 evidencing the same.

The defendant Bidyaprakash had therefore acquired a good title to inherit the estate of Sampatrai as an adopted son and that ever since his adoption he had been living under the care and guardianship of his adoptive mother, Mt Gigi.

After the filing of the written statements, plaintiffs applied to amend the plaint. They asserted that the adoption in question was invalid, because according to custom and usage prevailing amongst the Hindu Marwari Community to which the parties belonged, the boy to be adopted must belong to the family of the adoptive father or be a daughter''s son and that there was no custom of adopting wife''s brother''s son.

This amendment was allowed by the Court, which in fact permitted the plaintiffs to put in a fresh plaint, almost overriding the previous plaint under cover of an amendment petition. This plaint is more elaborate and paragraph 4(Ka) contains the essential plea with reference to the prevailing custom and usage among the Hindu Marwari Society as set up by the plaintiffs.

The defendants filed a rejoinder to this amendment. They reiterated the plea of non-joinder of necessary parties which was based upon the further ground that the daughter of the former wife of Sampatrai was also a necessary party to the suit.

They also challenged the alleged custom and affirmed that the adoption of Bidyaprakash was in accordance with the custom and usage prevailing in the Marwari Society and not opposed to it and the belated plea taken by the plaintiffs was false and incorrect.

The main issue framed in the suit was the fourth issue which ran thus: "Whether the defendant No. 1 had proper authority to adopt a son? And whether the adoption of defendant No, 2 is both bad in law and not In accordance with custom?"

The learned Subordinate Judge held that Mt. Surji the daughter of Sampatrai by his first wife was a necessary party to the suit, but the suit could not be defeated by mere non-joinder of parties He also held that the plaintiffs were admittedly the next reversioners of Sampatrai.

On the main issue of adoption he was of the View that the Jains and the Vaisyas were two different sects of Marwaris following different religions and that the parties being Hindu Marwaris or Vaisyas they could not be subjected to Jain law and custom.

He therefore held that the decisions which had a bearing on the custom of the Marwaris had no application to the parties in this suit and that the parties were governed by the Benares School of Hindu Law according to which it was necessary that the widow should have the authority of her husband to adopt and that the essential ceremonies of giving and taking and ''Datta Homam'' should be performed in case of such adoption.

He held that these ceremonies had not been performed in this case and there was absence of any authority to adopt and consequently although there appears to have been in fact an adoption, the adoption is not according to law. On the question whether the wife''s brother''s son could be adapted, the learned Subordinate Judge was of the view that according to the custom which modified the law governing the parties, such an adoption could not take place and was not sanctioned by usage. Indeed, it is somewhat difficult to formulate the finding of the learned Subordinate Judge on this point in view of the fact that it is apparently in. consistent. He appears to have accepted the evidence of the plaintiffs which was given in, support of the alleged custom that amongst the Hindu Marwari community a widow''s brother''s son could not be adopted by the widow; but at the same time when dealing with the evidence of the defendants on the point which gave instances of such adoptions in the community and should have been in the normal course sufficient to destroy the custom set up by the plaintiffs in derogation of the law the learned Subordinate Judge appears to have discarded their effect with the observation that they merely tended to show that a custom of the kind which sanctioned the adoption of her brother''s son by the widow was just originating and had not reached the stage so as to outweigh the law or to obtain the force of law.

It meant in other words that the plaintiffs had established the custom but the defendants instances to the contrary were not sufficient to prove a custom in opposition thereof--a proposition which evidently ignores the principle that the proof of these instances destroyed the very essential feature of a valid custom; namely, its invariability, the onus to prove invariable custom, being on the plaintiffs. On these findings the learned Subordinate Judge though expressing apparent sympathy for the widow Mt. Gigi decreed the suit, but without any costs to the plaintiffs.

On appeal the decision is challenged on the ground that it is erroneous both in law and on facts and that the learned Subordinate Judge completely misdirected himself in assuming that the parties were governed by the Banares School of Hindu Law and not by their own usages and customs as admitted by both parties in their pleadings.

At the outset a preliminary objection is taken as to the maintainability of the suit. It is urged that the plaintiffs were not presumptive reversioners and had therefore no �locus standi'' to institute the suit. It is the admitted position that Sampatrai left a daughter Mt. Surji who has an adopted son; the plaintiffs were as such merely contingent reversioners, and would have no right to sue for a declaration that the adoption of defendant No. 2 by the defendant No. 1 was invalid.

The fact that Mt. Surji, the daughter of late Sampatrai is alive and she has adopted a son admits of no doubt. Mt. Jani Agarwalani witness No. 2 for the plaintiff and widow of Ganpatrai the, brother of Sampatrai, who was examined on commission, admitted in her evidence that Mt. Surji by is the daughter of Sampatrai now living and that there was no son born to her but she had adopted a son who was the son of her husband''s brother.

Another witness Gulzarilal for the plaintiffs made a similar admission, that Sampatrai had left a daughter who was married to one Harduarimal and that she had adopted a son. This fact is also borne out by the evidence of Bholaram Agarwala (P.W. 6). The learned Subordinate Judge accordingly found that Sampatrai died leaving a daughter Mt. Surji by his first wife who was married to one Harduarimal, and they having no issue had adopted a son.

It is thus quite clear that Mt. Stirji daughter of Sampatrai is alive and it is also clear that she has an adopted son. It is therefore contended by Mr. Lahiri that the suit should be dismissed on this ground alone as it was necessary for the plaintiffs to disclose these facts in the plaint and to make out why the plaintiffs had instituted the suit in preference to the nearest reversioners.

After the death of the widow the estate would devolve on the daughter Mt. Surji and on her death upon the adopted son. The plaintiffs therefore had a very remote possibility if at all of succeeding to the estate of Sampatrai and were therefore incompetent to sue for a declaration of the nature which they have claimed in the plaint without disclosing the circumstances under which the institution of the suit could be justified at their instance.

It is well settled that the right to sue in such cases must be limited and as a general rule the suit must be instituted by the presumptive reversionary heir that is to say, by the person who would succeed to the estate if the widow were to die at the time of the suit. But the suit may be brought by a more distant heir if those nearer in the line of such cession are in collusion with the widow or have precluded themselves from suing by their own act or conduct.

If the nearest heirs had refused without sufficient cause to institute the proceedings or had estopped themselves from suing or were in collusion with the widow or had acquiesced in the act alleged to be wrongful, the next presumptive reversioner could then acquire the right to institute the suit. But such a case has to be distinctly set out in the plaint stating the circumstances under which the more distant reversionary heirs claim the right to sue and on those allegations the Court could then exercise its judicial discretion in determining whether the said heirs were or were not competent in that respect to sue and whether it was requisite or not that any nearer heir should be made a party to the suit.

This proposition is supported by a number of decisions of the Judicial Committee. In - ''Rani Anand Kunwar v. Court of Wards on behalf of Chundra Shekhar'' G Cal 764 (PC) (A), a suit for declaration that an adoption was invalid was decreed by the Courts below, yet the Privy Council dismissed the suit on appeal mainly on the ground that the plaintiff in the action was not the immediate reversioner and the plaint did not allege that there were no others nearer in the line of succession or that they had precluded themselves from suing.

The same principle was reiterated by the Privy Council in--''Jhandu v. Tarif� AIR 1914 PC 34 (B) and- AIR 1925 54 (Privy Council) The decision in--''V. Venkatanarayana Pillai v. Subbammal'' AIR 1915 PC 124 (D) does not negative but actually supports the above propositions and does not depart from the rule which the Privy Council laid down in the earlier cases as to the right to sue.

It is no doubt true that it is the common injury to the reversionary right which entitles the reversionery to sue and that there is always an identity of interest in the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights, But it is, to be remembered that the suit in ''Venkatanarayana''s case (D)'' was at the instance of the next immediate reversioner competent to sue at the time and on his death the suitwas allowed to be carried on by the next presumptive reversioner in the order of succession.

The other decision cited by the, respondents in-- AIR 1946 173 (Privy Council) also does not help the plaintiffs, because there also it was recognised that though a suit may lie in the life-time of a female owner to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent alike, the suit had to be instituted by the presump. tive reversioner, though in that capacity he would be deemed to represent the entire body of reversioners.

I had occasion to review all these decisions in a very recent judgment of this Court in--''Mt. Golap Priya Debi v. Debipriya Debya'' Second Appeal No. 162 of 1953, D/- 9-3-1953 (Assam)(P), where I followed the principles formulated above.

It is submitted by the respondents that this question of locus standi and the right to sue was never as such raised before the Court below. The point which was actually argued was the point of non-joinder of certain necessary parties but it was never contended in the trial Court that the plaintiffs had no right to sue.

The question, however, can be raised as a pure I question of law even in the appellate stage, provided it does arise on the admitted facts or on facts I proved beyond controversy. In such a case, it is I not only competent but expedient in the interest of justice to entertain the plea.

The expediency of adopting the course may be open to question where the plea cannot be disposed of without deciding controversial or nice questions of fact because there the appellate Court stands in some position of disadvantage as compared with the trial Court;-- AIR 1932 118 (Privy Council)

The question, however, still remains whether in the presence of Mt. Surji, Sampatrai''s daughter, and her adopted son, lie plaintiffs have any right to sue. Now it has been held in a number of cases by the High Courts in India that when the next reversioner is herself a. female and entitled to a limited interest only, the presumptive reversioner is entitled to sue.

Reference may be made in this connection to the decisions in--''Abinash Chandra v. Harinath Sliaha'' 32 Cal 62 (H);--''Chidambara Reddiar v. Nallatnmal'' 33 Mad 410 (I) and - ''Ramyad Pande v. Hambihara Pancb'' AIR 1920 Pat 514 (J). The law on the point has been carefully summed up in paragraph 207 of Mulla''s Hindu Law (Eleventh Edition).

I am conscious of the fact that there is some divergence of opinion in the Allahabad High Court on the point; but for the present we see no adequate reason to depart from the consensus of opinion in the Courts in India. That being so the presence of Mt. Surji is no bar to the institution of the suit by the plaintiffs.

The presence of the adopted son who cornea next in the order of succession would have created undoubtedly a very serious difficulty in the way of the plaintiffs, but it is not clear from the record as to when this adoption actually took place land as to whether the adopted son came, on the scene before the plaintiffs filed the suit.

For the appellants much reliance is placed on the statement of Gulzarilal Saraogi (P.W. 3), that the widow of Sampatrai went to Calcutta on the occasion of adoption of a son by Mt. Surjibai about two or three years ago. The suit itself was filed on 12-4-1948 and the witness was examined on 15-5-1949 and from this it is argued that the adoption by Mt. Surjibai was evidently prior to the suit.

In my opinion, it would be unsafe to base our decision on this vague statement of Gulzarilal as to the time of adoption and defeat the suit on that basis, especially when the point was not specifically raised in the trial Court. There is no other witness who speaks of the date of adoption by Mt. Surjibai and the fact that no such objection was taken in the written statement goes a long way to indicate that the adoption may probably have taken place after the institution of the suit.

There was an objection of mis-joinder about Mt. Surjibai, but there is nothing said about any adopted son. In any case, at the appellate stage it would hot be proper to non-suit the plaintiffs on the mere assumption that at the time of the suit Mt. Surjibai had already adopted a son who could have filed the suit. Besides, the son may be a minor under the guardianship of Mt. Surjibai and may be unable to sue except through her which again brings us back to the same point as to whether the existence of Mt. Surjibai herself la a bar to the suit.

I have already held that it is not. Therefore the contention of the appellants that the plaintiffs, have no right to sue cannot be accepted.

So far as Pokarmal is concerned the evidence shows that he Had gone out of the family when he was taken in adoption more than 60 years ago and since then the family has no connection with him. Plaintiff Mannalal says that neither he nor his father nor Gobardhan have any connection with him. The defendants have not seriously controverted those facts.

Therefore, the absence of Meghraj as a party to the suit is immaterial. In any case, he stands in the samedegree of relationship with Sampatrai as the original plaintiffs to the suit and had no better right file the suit than the plaintiffs themselves Mt. Gigi states in her evidence that neither Mt. Surji nor Pokarmal�s sons objected to the adoption in question.

Therefore the suit cannot be defeated on the ground of non-joinder of these parties. Nor do I think it necessary at this stage to direct that any of these persons, should be added as parties to the suit. The suit as framed is maintainable and on the, whole the first issue has been rightly answered in favour of the plaintiffs.

We have then to deal with the claim on merits and decide the question raised in the fourth issue which as I said is the main issue in the case. The decision oh that issue rests upon various factors. The primary; consideration is whether the parties are governed by the Mitakshara School of Hindu Law or by the manners, customs and usages which prevail in the Marwari Community to which the parties belong.

If the parties are found to be governed by the Benares School of Hindu Law, then the proof of existence of an authority to adopt by the husband to his wife is essential and so also is the performance of certain ceremonies like the ceremony of giving and taking, Datta Homam, shastric rites, etc.

If, however, the parties are not governed by any school of Hindu Law, but by their own usages and customs in matters of adoption and succession then the above formalities, even if found to exist, may not be necessary.

The plaintiffs in their pleadings never claimed that they were governed by the Mitakshara School of Hindu Law. In fact even in the plaint which they filed subsequently substituting the earlier one under cover of an amendment petition the plaintiffs did not assert that the parties were governed by the Benares School of Hindu Law.

All that they stated is that the parties belong to the Hindu Marwari Community and that they are governed by customs and usages prevailing in that community. The defendants'' statement was to the same effect in other words, both parties agreed that in matters of adoption and succession they were governed by customs and usages which prevailed in the Marwari society.

There is not a word in the pleadings anywhere that the parties were governed by the Benares School of Hindu Law. Some witnesses in their evidence, as I shall later show, tried to make a distinction between Marwari Jains as such and Marwari Hindus, But the evidence on the whole clearly shows that in respect of the matters under consideration the distinction is without any substance: and that these Agarwals or Marwaris irrespective of their religious persuasion, whether they were actually Jains or non-Jains, inter-married between, themselves and continued to be governed by common customs.

It is beyond question in this case that the parties migrated from Ratangarh in the Bikaneer State and presumably they carried their own family customs and usages with them. If, therefore, it is found that they are governed by a special custom in matters of adoption and succession, which in effect was incorporated in the law so far as this community is concerned, it would be for the person who claims that in some instances the members of the community gave up the custom and reverted to a particular school of Hindu Law, to prove such reversion.

The learned Subordinate Judge appears to have fallen into an initial error in assuming that the parties in this case were governed by the Benares School of Hindu Law and that Jains and Vaisyas were two different sects of Marwaris governed by different legal systems. There can be no doubt that the Jains or Marwaris are but different sects of Hindus though in various religious-practices and beliefs they do not agree with the orthodox Hindu system.

In fact, they have been described as Hindu dissidents and the law on the point appears to be that except with regard to the Marwaris of Madras and the Punjab, the other Marwaris who migrated from Joypur, Jodhpur and Bikaneer are governed by the same custom. We have thus to ascertain what this custom is both from the evidence and decided judicial precedents relating to the community. Before, however, I deal with the law I should discuss the evidence of the parties which has a, bearing on this question.

Plaintiff Gobardhan who appears to be the eldest member of the family has not examined himself nor has he examined his son Joydoval about whom it was definitely stated by Mt. Gigi that he was present at the adoption ceremony of the defendant No. 2. Of the plaintiffs, Mannalal, the son of Senehiram, and comparatively a junior member of the family has alone come to depose. He states that he is an Agarwal Jalan by caste and Basal by Gotra and the custom of adoption is commonly prevalent amongst the Marwaris. He also deposes that there are various sub-sects of Agarwals; for instance Oswal, Jaini, Seraogi, etc., but according to him the sub-sects did not observe the custom of Agarwal Jalans.

He however, admitted that he had married a Seraogi woman and though he wanted to make a distinction that he was a Hindu governed by Hindu Law unlike Oswals or Jains yet he had to admit later that the Agarwals of India had the same and similar customs. His witness Nagarmal (P.W. 1) examined on commission stated earlier in his deposition that Agarwals are governed by the Benares School of Hindu Law and also by their custom.

But in cross-examination he conceded that all Marwaris, i.e. Oswals, Scraogis and Agarwals come from Joypur, Jodhpur and Bikaneer and the Agarwals from those states are all governed by the same customs. He goes even farther and says that the Marwaris living in Assam are all governed by the same custom. His evidence also shows that the custom of adoption is very commonly prevalent amongst the Marwaris.

The witness has the same Gotra as the plaintiffs and he has been relied upon by the trial Court, as one of their principal witnesses. His deposition itself leaves no doubt that in matters of adoption, Marwaris or Agarwals migrating from the States of Joypur Jodhpur and Bikaneer or for the matter of that the Marwaris, of Assam are governed by the same custom.

Therefore, not much importance can be attached to his earlier qualifying statement or that of Mannalal that Agarwals are governed by the Benares School of Hiadu Law. He also admits that Senehiram''s son has married the daughter of Ram. bux Seraogi. This is probably with reference to plaintiff Mannalal. To the same effect is the evidence of Gulzarilal Seraogi. In fact, this witness is intimately related to the plaintiffs, the latter being the sons of his maternal uncle.

He is a Seraogi Marwari Agarwal and admits that he belongs to the Digambar sect of the Jain community; yet he says that he is governed by the custom prevalent amongst the Marwari Agarwal community in the matter of adoption with whom he has relationship. His custom is the custom of Sanatan Dharma of the Marwari community. These admissions of Gulzarilal are very significant.

In other words, Jain or non-Jain, the fact remains that he is like all the other Marwaris, governed by the same custom. I find that a number of other witnesses have also made similar admissions. Bholaram Agarwala (P.W. 6), who appears to have played some prominent part on behalf of the plaintiffs in this litigation and is also a man from Hatangarh in the Bikaneer State, Kays that the Marwaris here follow the customs which are prevalent in their native country and they have not adopted any change in their usual customs. Kanhailal Jain is another of those persons who belongs to the Jain community.

Although a Jain, his elder brother''s daughter has been married to plaintiff Mannalal. He says that he writes both Jain and Agarwala and he also calls himself an Agarwala. Srilal Aganvala. (P.W. 13), who also comes from Ratangarh pays that here also the Agarwals follow the customs of their own native country. Daluram Sanganaria (P.W. 15) who also belongs to Ratangarh in Bikaneer says that all Agarwals have the same custom.

After these admissions of the plaintiffs'' own witnesses, there was hardly any justification for the distinction made by the learned Subordinate Judge that Hindu Marwaris or Agarwals could not be subjected to Jain law or custom and on that erroneous assumption to reject at one sweep the volume of authorities and judicial precedents which deal with customs of Jains and Marwaris.

The evidence and the pleadings all point to the conclusion that the parties are governed by their special custom and usages prevailing in the Marwari community in matters of adoption, specially amongst the Marwaris who have migrated to the various parts of India from the States of Joypur, Jodhpur and Bikaneer; and the fact that these Marwaris have in various other respects of belief and worship followed the orthodox Hindu system of religion or the Jain system, does not in any manner affect the customs and usages by which they are governed. That being so the assumption that the parties are governed by the Benares School of Hindu Law and not their customs is quite untenable.

I will shortly examine the evidence as to what this custom is by which the parties are regulated. It is at any rate quite clear from the evidence that no particular ceremony of giving or taking, or of any other kind, is definitely followed. The evidence in fact is very discrepant on the point and it is difficult on that evidence to fix: upon any particular ceremony as being essential for the purpose of adoption.

So far as the authority to adopt is concerned on the one side the evidence is that authority is necessary, on the other side, it is claimed that no authority is necessary, but still an authority had been given by her husband to Mt. Gigi before his death to make an adoption; and it was in pursuance of this authority that the adoption has been made.

On the question whether a wife''s brother''s son can be adopted, it is alleged by the plaintiffs'' witnesses that such a person could not be adopted* according to their custom. On these three points-I shall advert to the evidence in due course. But I should like to refer at this stage to some of the authorities which now seem to establish beyond doubt that in matters of adoption amongst the Marwaris the woman enjoys much larger power than what has been conceded to her under the Benares School of Hindu Law.

The law as gathered from these decisions clearly indicates that no particular authority for the purpose of adoption is needed, nor is it necessary to perform any particular ceremony in order to validate such an adoption, provided in fact a boy has been taken in adoption. The factum of adoption can in appropriate cases be proved even by a document for that purpose and by the conduct of the parties without any proof of any particular ceremony.

In the matter of the person to be selected for adoption also the adoptive mother appears to enjoy a large discretion according to custom and she can select a boy for adoption from any one of the communities. Mulla in his book Principles of Hindu Law in Section 452, Page 558 (11th Edn.) observes.

In all parts of India except Madras and Punjab, the Jains observe the custom by which a widow is entitled to adopt to her husband without his-authority. The rule is so well known and so well established by judicial decisions that it is no longer necessary to plead and prove it in any part of India except Madras and Punjab (p).

The above proposition finds support from a large number of authoritative judicial pronouncements. One of the earliest cases on the point is the decision in--''Sheo Singh Rai v. Dakho'' 1 All 688 (PC) (K). It was held there that according to the usages prevailing in Delhi and other towns in the North-Western Provinces, among the sect of the Jains known as Saraogi Agarwals, a sonless-widow takes an absolute interest in the self-acquired property of her husband; has a right to adopt without permission from her husband or consent of his kinsmen; and may adopt a daughter''s son, who, on adoption, takes the place of a son-bogotten.

The High Court found that the weight of evidence greatly preponderated in proof of the above custom and Included the testimony of witnesses-competent to expound the law of the sect. The Privy Council concurred in those findings. Golap-chaudra Sarkar Sastri in his Tagore Law Lectures'' in 1888 on the Hindu Law of Adoption dealing, with the custom amongst the Jains observed:

Although Jainism differs in many respects-from Hinduism, yet on the whole, the Jainas may be called Hindu dissenters.... For religious purposes, the Jainas are divided into two classes, namely, the Yatis or Jaina ascetics devoted to religion, and the Sravakas or secular Jainas or the laity; the word "Saraogi" which you will-find in several cases is a corruption of the latter term.

The Yatis again are divided into Dlganibaras who are followers of Mahavira and go naked and Svetambaras who are disciples of Parsvanath and, are dressed in garments. The Sravaka or the laity includes persons of various tribes but, on this side of India, the secular Jainas are mostly of the Vaisya class which subdivides itself into numerous; sects, the most common of which are Oswals, Agarwals, Parwars and Khandelwals. r

Some of the Jainas have adapted Vaishna-vism, but they do not on account of this change of religious faith, lose their position in the Jaina community; and it would seem that with respect to inheritance and adoption, they continue to be governed by the usages and customs of their Jaina ancestors.

The learned jurist points out that the Jainas are governed by the Hindu Law of Adoption, except in the following particulars in which it has been proved that their usages are different. These particulars may be summed up under three different heads:

(1) That a Jaina widow is competent to adopt a son, even when her husband dies without giving any authority in that behalf, and this custom has been held to obtain amongst the OswaLs as rwrell as the Agarwals. He relies in support of his, postulate on--''Manick Chand Golecha v. Jagat Settani'' 17 Cal 518 (1) and--''Lakhmi Chand v. Ghatto Bai'' 8 All 319 (U). She may adopt a second son if the first adopted son dies, leaving the adoptive mother as heir;

(2) An adoption among the Jainas being a temporal institution, the religious ground of objection against the adoption of an only son did not necessarily apply. The rule of prohibited relations for adoption does not obtain amongst the Jainas, who may, therefore, adopt a daughter''s son; nor is the restriction based upon the age of the adoptee, applicable to the Jainas, among whom the rule is that a person within the age of thirty-two may he adopted;

(3) Nor are any religious ceremonies necessary for a valid adoption amongst the Jainas who do not believe in the efficacy of rites prescribed by the Hindu, shastras. The gift and acceptance of the person, adopted are the only requisite ceremonies for a lawful adoption amongst them.

it appears the usual practice amongst the jainas on such occasions is to invite the kinsmen and the principal men of their caste in whose presence the son is adopted; a deed of adoption is executed and after the gift and acceptance, the dressed and is made to sit on the lap of adaptive father, or of a relation when the widow adopts, In the assembly of the relations and the caste-people and the ceremony is finished by the distribution of betels, cocoanuts etc. to the persons assembled.

It is to be remembered that the above observations were made by the learned jurist at a time when the law on the point had not sufficiently crystallized and when there were not many authoritative decisions to guide the inquisitive explorer. Yet these observations have stood the test of times and have earned recognition from time to time from the highest judicial authorities.

I should have referred in this connection to the decision in 17 Cal 518 (L) to which the learned author also referred in his lectures. This was a case where it was held that a, widow of the Oswal Jain sect can adopt a son without the express or implied authority of the husband, and the adoption of the tenets of another sect of Hinduism will not necessarily affect the laws and customs by which the personal rights and status of the family were originally governed.

Therefore, in the absence of evidence to the contrary, the custom which enables a Jain widow of the: Oswal caste to adopt a son without the express or implied authority of her husband will not be affected by the conversion of the family to Vaishnavism. The learned Judges relied in that case upon the decision in ''Gobinda Nath Roy v. Gulal Chand'' 5 Select Rep 276 (Ml) & held that the term ''Saraogi'' appeared to be synonymous with Jains and that the decision in--''Gobinda Nath Roy''s case (M1) was based on a custom prevalent among the Jains and not being peculiar to any tribe or caste.

The evidence in the case established that the Oswal widow in Joypur or Jodhpur whether Jain or Vaishnava could adopt children without the permission of her husband and that the custom was not confined to the followers of the Jain religion only. In �Harnabh Pershad v. Mandil Doss'' 27 Cal 379 (N) it wan observed that Unit Judicial decisions recognising the existence of a disputed custom amongst the Jains of one place are very relevant no evidence of the same custom amongst the Jains of another place, unless it is shown-that the customs are different; and oral evidence of the same kind is equally admissible.

There is nothing to limit the scope of the enquiry to the particular locality in which the persona setting up the custom reside. It was also held that a sonless Jain widow was competent to adopt a son to her husband without his permission or the consent of his kinsmen, and that in this respect there was no material difference in the custom of the Agarwal, Chorewal, Khandelwal and Oswal sects of the Jains; and that there was nothing to differentiate the Jains at Arrah from the Jains elsewhere.

It was also observed that the terms ''Jain'' and ''Saraogi'' are synonymous. The plaintiff in that case asserted that the parties were Agarwalla Hindus governed by the Mitakshara Law. Yet the learned Judges held that in matters of adoption they were governed by such customs and usages as prevailed in the community and not by the Mitakshara law.

A perusal of the judgment shows that a large number of earlier decisions have been reviewed on the point including those to which I have referred. In--''Manoharlal v. Banarsi Das'' 29 All 495 (O) where the parties claimed to be Hindus, it was also held, notwithstanding the claim, that according to the law and custom prevailing amongst the Jain community a widow has power, to adopt a son to her deceased husband without special authority to that effect and a married man may lawfully be adopted.

The judgment quotes with approval relevant-passages from Dr. Hoernle''s Presidential address to the Asiatic Society of Bengal In 1898 about the early history of the Jains and also from Mr. Golap Chandra Sarkar Sastri''s Tagore Law Lectures. At that of early stage we come across another decision of the same Court in--''Asharif Kunwar v. Rupchand'' 30 All 197 (P) where the same. principle was reiterated by the learned Judges, namely that according to the law and custom prevailing amongst; the Jain community a widow has power to adopt a son to her deceased husband without any special authority to that effect.

Adoption amongst the Jains was purely a secular institution and there was no legal objection to the adoption of a married man. They treated the historical portion of the judgment in the earlier case as incorporated in the judgment in the later case. This decision received the approval of the Privy Council in--''Rup Chand v. Jambu Parshad'' 32 All 247 (PC) (Q).

The parties in this case were Agarwala Jains of Sharanpur District governed by the Mitakshara law, but for purposes of adoption, by the custom as found above. Accordingly, the adoption of a married man was upheld in that case.--Mathura Dass Karnani v. Srikrissen Karnani'' AIR 1918 Cal 98 (2) (R) was the case of adoption by the widow of a Maheshwari Hindu who hailed from Bikaneer.

The adoption was made without the authority of her husband or the consent of her husband''s relatives. It was also not disputed that the parties were governed by the Mitakshara (Benares) School of Hindu Law, yet the adoption was held valid according to the custom prevailing in Bikaneer which continued to apply to the parties.

It is useful to refer to the decision of the Privy Council in--''Sheokuarbai v. Jeoruj'' AIR 1921 PC 77 (S) where it was clearly pointed out quoting a passage from Mayne''s Hindu Law and usage that the Jains are of Hindu origin; they are Hindu dissenters. Although generally adhering to the ordinary Hindu law, that is, the law of the three superior castes, they recognise no divine authority in the Vedas and do not practise the Shradhs, or ceremony for the dead.

The due performance of the Shradhs, or religious ceremonies for the dead, is at the base of the religious theory of adoption, but the Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contrary usage. The parties in that litigation were Swetambari Jains belonging to the Central Provinces.

There it was held that the widow of a sonless-Jain could legally adopt to him a son without any express or implied authority from her deceased husband to make an adoption and the adopted son may be at the time of his adoption a grown-up and married man. No particular ceremony is necessary for the validity of such an adoption among the Jains, except that of giving and taking, and that also may not be actually in the physical sense of the term.

Reference should also be made to the case of--''Banarsi Das v. Sumat Prasad'' AIR 1936 All 041 (T), where it was not only held that by virtue of custom prevailing among the Jains a Jain widow is competent to adopt a son without authority from her husband or permission of his kinsmen, and that the widow possesses the right to adopt quite independently of the nature and extent of her interest in the state of her deceased husband, but it was also held that where such a custom has been repeatedly brought to the notice of the Courts and has been recognised by them regularly in a series of cases it attains the force of law and it is no longer necessary to assert and prove it by oral evidence.

This dictum of the learned Judges had th.3 support of the decision of the Judicial Committee in--''Jadu Lai Sahu v. Janki Koer'' 39 Cal 915 (PC) (U) and--''Gangadhara Rama Rao v. Raja of Pittapur� AIR 1918 PC 01 (V). They further held that whenever a widow had full and free power to adopt without any person''s permission, any inquiry into her motive was altogether irrelevant, for her action is that of a person who doss what she has the right to do.

The mere fact that the adoption put an end to the expectations of the persons who would have succeeded to the property if no adoption and been made is not sufficient to constitute a corrupt or capricious motive as this result is bound to arise in each case of an adoption.

I will now turn to the very important decision of the Judicial Committee in-- AIR 1925 118 (Privy Council) In that decision one finds a good deal of discussion about the Agarwal community. It was observed there that Agarwalas generally adhere to Jainism and repudiate the Brahminical doctrines relating to obsequial ceremonies, the performance of Sradh, the offering of oblations for the salvation of the soul of the deceased etc.

They do not believe that a son, either by birth or by adoption, confers spiritual benefit on the father. They are divided into a number of sects and they differ particularly from the Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. They also regard the birth of a son as having no effect on the future progenitor and consequently adoption is a mere temporal arrangement and has no particular object.

it has been also pointed out there that the qualifying age for adoption extends to 32 years, and in matters of adoption no particular ceremony is observed; and the only ceremony in adoption among the Agarwallas consists in tying a turban round the head of the young man who is being adopted, in the presence of tire principal men of the community (the panchas) and giving them a feast.

The parties to the litigation in that case were Agarwallas, belonging presumably to the Sekhawati sect, in the district of Amraoti and the majority of the witnesses in the case were Moheshris. The adoption was made in the manner customary among the Agarwallas, but the garb of regular Brahminical adoption was sought to be given to it with a view to invest the adopted son with the rights of collateral succession.

Their Lordships held in the circumstances that if the Brahminical fringe was taken out the evidence established a case of secular adoption. This case is a clear authority for the proposition that no particular ceremony in the case of adoption by an Agarwalia is necessary.

The adoption in that case was evidenced by two deeds of adoption and although the adoption may not have been a valid adoption according to the ordinary rules of Hindu Law, it was still a valid adoption according to the usages and customs prevailing in the Agarwalia community. For the purpose of applying the usages and custom the question of sub-sect was held immaterial; in other words, the custom applied to the entire Agarwalia community without any distinction.

I would now refer to a recent decision of the--''Nagpur High Court in AIR 1948 398 (Nagpur) It was held there that among the Agarwallas from Marwar there is a custom which permits a widow to adopt without her husband''s permission. According to the custom, a husband''s younger brother can be adopted, though such an adoption would not be valid, according to Hindu Law.

Such an adoption was not held to be unreasonable among the castes such as Agarwaias from Marwar which regarded adoption as a purely secular affair. The decision refers with approval to an article by Lala Chiranjilal Agarwal entitled ''Adoption among Marwari Agarwals'' which is printed in the journal section of the AIR 1937 at p. 80.

The article shows that amongst the Agarwals and other trading Vaishnawa communities adoption is a purely secular affair, that no ceremony Is necessary except the tying of a turban on the head of the adoptee, that there is no effective difference between Vaishnawas and Jains, that a widow of a separated brother can make a valid adoption without any authority from her husband or his kinsmen, and that a brother can be validly adopted.

In Rajputana and among Agarwals who have migrated and are residing outside, the custom is so common that it has never been challenged.

I will conclude my discussion of these legal precedents with reference to two other decisions of the Judicial Committee which in my opinion have an important bearing on the question. They give the finishing touches to the evolution of the law on the point and thus complete the picture. I refer to the decision in-- AIR 1948 60 (Privy Council) It related to the Jains'' of the Khandelwal sect domiciled and resident in Ajmer.

In this case the Judicial Committee categorically observed that the rules of Hindu Law generally, apply to Jains in the absence of special custom varying the law, and the ordinary rule is that a party relying on a custom affecting the Jains which is at variance with the ordinary Hindu law must allege, and prove it.

But they held that it was equally beyond doubt that a custom which had been recognised and affirmed in a series of decisions, each of them based on evidence adduced in the particular case may become incorporated in the general law, with the result that the onus of proof no longer lay on those who assert it but upon those who assert an exception to it.

The question in that case was whether the custom which Is at variance with general Hindu law, that a sonless Jain widow could adopt a son to her deceased husband without a prior authority from him, was so well known and so well established by judicial decisions that it was no longer necessary to plead and prove it in the Ajmer courts. After having reviewed a large number of decisions Lord Normand, formulated the principle thus:

To sum up there are good historical grounds for holding that in Madras the Jains had not acquired'' customs affecting adoption which vary from the ordinary Hindu law; in Punjab adoption, whether by Jains or by people of other beliefs, is subject to local customs which may and do vary from the law and custom observed by the same peoples and sects in other parts of India. But in many other parts of India it has now been established by decisions based on evidence from widely separated districts and from different sects that the Jains observed the custom by which a widow might adopt to her husband without his authority.

This custom was based on religious tenets common to all sects of Jains and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband might be affected by the adoption, and though it could not be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none of the cases has a distinction been drawn between one sect and another.

It is now, in their Lordships opinion, no longer premature to hold that the custom prevails generally among all Jains except in those areas in which there are special reasons, not operative in the rest of India, which explain why the custom has not established itself.

Consequently, except in case of Madras and the Punjab, in the rest of India the onus should now lie upon those who deny that the custom of adoption by a sonless Jain widow in absence of prior authority of her deceased husband prevails. These principles I should say apply not only to the Jains, or the different sects of Jains but to other Agarwallas arid Marwaris also, irrespective of their religious persuasion or belief.

The same noble Lord reaffirmed the above view when delivering the opinion of the Board in another contemporaneous decision in-- AIR 1948 177 (Privy Council) which arose from a decision of the Bombay High Court,--''Suganchand Bhikamchand v. Manglbai Gulabchand'' AIR 1942 Bom 185 (Z1). The parties in that case were Marwaris of the Visa-Oswal community and the family had migrated some generations ago from Jodhpur district to Thana district in Bombay.

The parties were held to be governed by the same custom in matters of adoption on the presumption that in all parts of India except in Madras and the Punjab the custom prevails among all Jains by which a widow may adopt without consent either of the adopter''s deceased husband or of the nearest male members of his family; and the onus lay on those who assert a family or local custom to the contrary, to prove the same.

Those last two decisions, if I may so with respect lucidly expounded the law on the subject. I have thus attempted to trace the historical evolution of the law based as it is upon legal precedents. These precedents strengthen and support the premises which I laid down earlier.

The learned Subordinate Judge acted erroneously in ignoring these legal precedents on the mistaken assumption that the parties being Hindu Agarwallas the laws which relate to Jain custom had no application to them. How he came to make such a distinction is not quite intelligible to me.

A perusal of the authorities cited above made it amply clear that the custom applies to all Marwaris or Agarwallas, Jains or non-Jains, irrespective of their sub-section except those who belong to Madras and the Punjab. On the point that the Marwaris or Agarwallas, irrespective of their being Jains or non-Jains follow the same custom, the evidence of plaintiffs own witnesses and in particular the admissions of Gulzarilal almost clinched the matter.

According to this custom which has now become a part of the law, Mt. Gigi the defendant was entitled to adopt even in the absence of any authority from her husband. Her case nevertheless is that she had such authority. Before, therefore, I take up the evidence on these points, I would dispose of one or two contentions of Mr. Hareshwar Goswami for the respondents.

Mr. Hareswar Goswami on behalf of the respondents has referred us to a recent decision of the Bombay High Court wherein it was held that the Harijans under the Bombay Harijan Temple Entry Act, 1948 had no right to enter the Jain temples just in the same manner as the Hindus had no such right. The judgment in the case has not yet been, authoritatively reported.

But in any event, the decision has got no application to the present case. No one contests the position, that the Jains are a distinct sect of the Hindus with their own religious beliefs and with their own temples of worship to which a member of the Hindu community, who is not a Jain, could not necessarily have any access.

But that is not the same thing as saying that the Jains are altogether different from Hindus and that the customs and usages which apply to the Jains do not apply to other Marwaris or Agarwallas, merely because in certain respects the latter follow the Brahminical rites. Mr. Goswami further argued that there, is some evidence to show that the parties perform sradh or obsequial rites on the death of a person and that at the time of adoption some kind of Ganesh Puja or Nawagrahat Puja is made.

The evidence on this point is somewhat vague, but even if it is assumed for the sake of argument that these ceremonies were performed by the parties It does not detract from the position that they would still be governed by the custom which prevailed in the locality from which they come.

Among the Jains also there is a good deal of freedom in religious beliefs and worship and though as I have shown earlier they do not believe in spiritual efficacy or performance of funeral rites after the cremation of the dead or the performance of any of those ceremonies which are usual under the Brahminical rules, yet the performance of these ceremonies does not affect the custom which obtains amongst them.

Sometimes Brahminical influence does affect even those classes of Hindus which do not believe in the orthodox system. This is much more so amongst the ladies who are far more liberal and catholic in their religious views and in their modes of worship. Mr. Goswami''s argument, therefore, does not appeal to me.

The result is that it must be held that Mt. Gigi Agarwallani was governed by the custom of the community and that she was competent to adopt even without the authority of her husband or without the consent of her kinsmen; that in the matter of adoption no Shastric rites or ceremonies were necessary and the fact of adoption could be proved by the document executed in proof thereof and the conduct of the parties in consenting to the adoption and in treating the boy as an adopted son of the adoptive mother.

As to the choice of the person to be adopted also I have already shown that the members of this community enjoy a larger measure of freedom.

I shall now refer to the case of the defendants that nevertheless Mt. Gigi Agarwallani obtained the consent of her husband. Sampatrai the husband of Mt. Gigi died in Calcutta on 21-7-1932. He appears to have been suffering from a fell disease, like cancer of the throat, and it is not disputed that he had been taken to Calcutta for treatment, (After reviewing the evidence his Lordship held that Mst. Gigi had the authority to adopt. His Lordship further held on evidence that there was adoption in fact and that there was nothing in the case of the plaintiffs to affect the validity of the adoption in the present case so far as the performance of the ceremonies went.) It is now necessary to consider whether the widow''s brother''s son could be adopted.

Under the Hindu Law of the Benares School there is no bar to such an adoption. The real test is whether the adoptive father could marry the natural mother of the adopted son, in her virginity. It is difficult for me to understand how the learned Subordinate Judge got the idea that according to Hindu law of the Benares School such a son could not be adopted.

He says that according to Dattak Mimansha a woman cannot adopt her brother''s son and although he refers to certain cases on the point which support the conclusion that such a boy can be adopted, he concludes in the end that the theory has come to be rejected.

This question, however, need not detain us very much because we have already held that according to custom in the community, widows have a large choice in the selection of the boy. Some of the witnesses of the plaintiffs have stated that the boy to be taken in adoption must be of the same Gotra; but they themselves admit that the adoption of daughter''s son is valid according to their custom.

Therefore, both under the general law and (also under the custom, it was open to the widow Ito select a boy for adoption including even brother''s son The onus was therefore heavily on the plaintiffs to establish that such an adoption could not be valid. Witness Rautmal examined on behalf of the defendants appears to be a competent witness to speak about customs in the families of these Agarwallas. His evidence suffers to some extent from the weakness that he was not cross-examined by the plaintiffs.

But that is a matter for which the plaintiff themselves are to blame. His examination on commission could not be delayed indefinitely to suit the convenience of the plaintiffs. The witness is an Oswal. He says that he had been practising in the Bikaneer High Court since 1925 and conducted a large, number of cases in that Court relating to customs and Hindu Law.

According to him the custom relating to adoption in the Bikaneer State of which Ratangarh is a part, women have larger powers in matters of adoption that they enjoy under the Hindu Law. A woman can adopt in the name of her husband after the death of her husband and that no previous authority or sanction of the reversioners is necessary and there is no limitation in selecting the boy to be adopted, whether from near or remote lines. One Agarwalla can adopt another Agarwalla, a widow can adopt her brother''s son for her husband and no particular ceremony is to be performed except that the adopted person gives his consent and if he is a minor his father does so on his behalf. He named various instances where a brother''s son was adopted by a widow and he has also proved certain adoption deeds Exs. C.W. 1, C.W. 2 and C.W 3.

These deeds confirm the statement of the witness that women have a large choice in the selection of a boy to be adopted. I see no reason to reject the testimony of this witness which is so well supported by authorities and legal precedents which I have already discussed above.

As I said, it was the plaintiffs'' duty to prove that there was an invariable custom amongst the Marwaris not to adopt widow''s brother''s son as it was apparently in derogation of the law and custom which govern the Marwaris. If the defendants gave evidence to the effect that such an adoption had taken place amongst the Marwaris in several instances, the invariable character of the so called custom set up by the plaintiffs would be destroyed.

Such evidence was given by the defendants. Exhibit C.W. 2 is a registered deed of adoption of widow''s brother''s son in 1944 which was proved by Rautmall. Gobardhon Agarwalla deposed that he adopted one Ramkumar who was the son of his brother-in-law (wife''s brother) Beharilal and he asserted that a Marwari Agarwalla widow could adopt her brother''s son and there is no prohibition to that adoption.

Another witness Mt. Sohori Agarwallani who is a lady of about 75 years and also hails from Ratangarh in the Bikaneer State says that she adopted Puranmall her brother''s son as her son when her husband died about 60 years ago without any issue. Her brother''s name was Ramchand. Similar is the evidence of Liladhar Agarwalla whose son was adopted by his own sister a little over two yeara ago.

He happens to be related to Mt. Gigi who is his mother''s sister. The learned Subordinate Judge accepts the evidence of these witnesses and nothing has been shown to me either to doubt the correcness of that evidence; but he says that all these instances merely tend to show that a custom of the kind (namely, to adopt widow''s brother''s son) was just originating and had not acquired sufficient strength or to quote his own words, as yet reached the stage to outweigh law or to obtain the force of law.

It is obviously an erroneous proposition. If theses instances have been proved by the defendants as in my pinion, they have been very satisfactorily proved; they clearly destroy the so-called custom setup by the plaintiffs, because an essential element of custom, its invariability, vanishes. The learned Subordinate Judge has put the legal position just the, other way about.

Even on a perusal of the evidence of the plaintiffs'' witnesses, it appears that they were seeking to conceal and feign ignorance of certain instances of adoptions for fear of contradicting the alleged custom which they had set up.

In the circumstances I hold that the adoption of defendant 2 by defendant 1 is valid and that the judgment and decree of the learned Subordinate Judge is erroneous and misconceived, it therefore must be set aside and the plaintiffs suit dismissed with costs throughout.

Ram Labhaya, J.

I agree entirely.