Mussammat Mandit Koer and others vs Phool Chand Lal and another

The object of this suit is to obtain a declaration that Jagurnath Das, who was a party Defendant and who died pending suit, was not the lawfully adopted son of one Kant Das. Kant Das died on the 7th of January 1883, leaving a widow Mandit Koer, the first Defendant. The Plaintiff and the Defendant Subram Chand are the immediate reversionary heirs of Kant Das. The plaint alleges that Mandit Koer in a suit, which was instituted in 1891 for the first time, alleged that her husband had six months before his death adopted Jagurnath Das.

Jagurnath Das is represented in this suit by his widow Kismist Koer.

The defence is that there was in fact and in law an adoption, and that the parties being Saraogi Agarwallas, the widow, according to the custom of that sect, would in the absence of a natural son or of a validly adopted son, succeed absolutely to her husband''s property. The questions which we have to try, and they are the only questions which have been raised before us, are:--

Was there a valid adoption of Jagurnath Das by Kant Das?

Are the parties Jains?

Has it been satisfactorily proved that according to the custom of the Jain or Saraogi Agarwallas, a widow succeeds absolutely to the property of a sonless intestate?

These questions have all been decided by the learned Subordinate Judge in favour of the Plaintiff.

With regard to the first question the matter stands as follows:--

The learned Judge in the Court below has held that neither Munni Lal, the natural father of the child, nor Kant Das, the adoptive father, was sane at the time of the alleged adoption, and that there was no giving or taking.

The learned counsel for the Respondent has not disputed the sanity of Kant Das. It was not really in issue in the Court below, but the learned Judge acted upon the statement of a single witness who states that Kant Das was insane, but who does not show that he was insane at the time of the alleged adoption. The evidence as to the sanity of the natural father is on a different footing. There can be no doubt but that he is now out of his mind. The evidence as to this is certain, and the omission to call him as a witness makes this conclusion clearer still. The cause of Munni Lal''s mental observation dated from long before the alleged adoption, but the loss of his intelligence does not appear to have been sudden. He was deeply affected by the Loss of his property many years ago, and this has greatly affected him; but it is impossible to say that his mind was unsound at the time of the adoption. It does not appear that he had any hallucination even with regard to the property which he had lost. He was melancholy on account of its loss and continually repeated its name.

As to the remainder of the Subordinate Judge''s finding on the question of the adoption we entirely agree with him.

There is no doubt but that an arrangement was made for an adoption, but this does not conclude the matter.

Both Kant Das and Munni Lal executed a deed on the 30th of June 1882. By it Munni Lal recites that he has made over his third son to the sonship of Babu Kant Das, " so that the said Babu may, whenever he wishes, fulfil the rites of adoption in accordance with the Shastras and the usage of the country. From this day, I, the declarant, have and shall hereafter have no claim or right in respect of the said son." It is quite clear and it has not been contended before us to the contrary, that this deed did not of itself operate to effect an adoption. It does not even amount to a giving and taking of the boy as it contemplates the subsequent performance of the necessary (sic)rites. We doubt whether it was intended to be anything more than a contemporaneous record of the giving of the child by the father. When we find a deed of this kind, executed by the father, we would be inclined to lend a more willing ear to evidence as to what took place with regard to the ceremony of adoption. Deeds of this kind are executed with the object of being carried out, but they do not lake the place of the necessary evidence as to the actual adoption, and it may sometimes happen that circumstances permit their being carried out.

It is not necessary for us to determine in this case to what extent, if any, religious ceremonies were necessary to complete the adoption. It has been contended that as the Agarwallas belonging to the twice-born classes, religious ceremonies were necessary, while on the other hand it has been said that no ceremonies are necessary in the case of Jains. It is sufficient to say that at the least a ceremonial giving and taking was necessary, and that this was contemplated by the deed to which we have referred.

There are certain witnesses who profess to speak as to what occurred with respect to the adoption.

Babu Bulak Chand, who was at one time a principal Sudder Amin, was, a witness to the ekrarnama, but was not present at any giving or taking. He says that Munni Lal said in his house that he had given the boy, and that Kant Das accepted him, but this statement might well have referred to the execution of the ekrarnama, and it is doubtful whether it is any evidence on the subject.

Rajendra Chand, another witness to the ekrarnama, says that the boy was given at the time of the execution of the ekrarnama; but he does not speak to any ceremonial. In reality it is doubtful on his evidence whether he intends to speak to anything more than the execution of the ekrarnama. Bulak Chand, who was present at the same time, saw nothing beyond the execution. Indra Chand speaks to an actual giving or taking, but this was at the same time of the execution of the ekrarnama, and if it took place must have been witnessed by Bulak Chand. The same remarks may be made as to the evidence of Buldeo Das. This evidence as to the giving and taking is most unsatisfactory, and has, in our opinion, been rightly discredited by the learned Subordinate Judge. An attempt has been made to support it by evidence of statements of Kant Das and of so-called treatment of the boy as an adopted son. The evidence of statements by Kant Das is not such as can he acted upon. It is so usual to attempt to support a feeble case by evidence of this kind.

It is only when the character or position of the witnesses is such as to make it impossible that they would be witnesses of falsehood, and it is clear that their recollection must be certain as to the exact details of the conversation that any reliance can be placed upon evidence of this kind. We are not satisfied that Kant Das treated Jagurnath any better than he treated Jagurnath''s brothers. He seems to have provided for Munni Lal and his family. It is said that Kant Das, after the alleged adoption, took Jagurnath from Arrah to Barh. His widow''s evidence could show that Munni Lal was living at Barh at the time of the adoption, but be this as it may, the evidence only shows that Munni Lal and the sons were all taken from Arrah to Barh by Kant Das.

It is wholly impossible for us to hold that the learned Judge has erred in the conclusion at which he has arrived as to the adoption, and, moreover, we think that his conclusion is strongly supported by the action taken by Kant Das''s widow. It is quite clear that on Kant Das''s death, the widow put herself forward as the heir of Kant Das and made no mention of Jagurnath. How far this is evidence against Jagurnath may be doubtful, but it is evidence for the purpose of discrediting the evidence given by the lady. The lady''s evidence is also discredited by her action in giving jhalsas or parties time after her husband''s death with reference to the adoption. One of the Defendants'' witnesses Gajadhur Proshad says that the person inviting him said, "The Mussammat is adopting a son and there are festivities on that account so you had better come." No attempt has been made before us to explain why, if Jagurnath had been validly adopted by Kant Das, there was any necessity for these jhalsas or indeed any reason for them.

We entirely agree with the view which the Subordinate Judge has taken as to this part of the case. To proceed to the other part of the case, we have no doubt whatever that the parties are Jains, and are not able quite to understand what the learned Judge means by calling them Hindu Agarwalla Vaisya Jain Panthi.

It is perfectly clear on the evidence that some of the Agarwal as are Jains and that some are Hindus, and there is evidence that they can change from one to the other. The main difference between them is that the Jains worship Pareshnath, whereas the Hindus do not.

The Plaintiff himself admits that he belongs to the Jain religion, and it is quite clear that the whole family were Jains.

A great deal of evidence has been given to show that these Jains follow Hindu customs to a great extent.

There can be no doubt that they do so, and in some cases, except for the distinction as the worship of Pareshnath, there may be practically little or no difference between the Jain or Saraogi Agarwallas and the Hindu Agarwallas. The real question is whether proof has been given of Jain custom applicable to these persons to the effect that the widow of a sonless intestate takes an absolute interest in his property.

The authorities are conclusive that unless a custom be proved to the contrary, Jains are governed by the Hindu law of inheritance and ordinarily the Mitakshara school of law would be the system of law applicable to them. In each case there must be clear evidence to prove custom or usage which is invariably followed without question. To the evidence which has been given in this case, we will afterwards refer. Much reliance has been placed by the Appellant on the case of Sheo Singh Rai v. Dakho 6 N.W.P. 382. The learned Judges there upheld a custom of the kind set up in this case in a dispute between Saraogi Agarwallas. In that case the parties lived at Meerut, and the evidence was the evidence of persons residing at Delhi. It is argued that we must hold that that case shows that all Saraogi Agarwallas are governed by this custom, and that the onus was upon the Plaintiff of showing that in the case of this particular family they had disregarded this custom and had adopted the Hindu law. We think that it is clear upon the authorities that we must look and see whether a particular custom applies to a particular place. This principle is to be found, we think, in the cases of Bhagvan Das Tejmal v. Rajmal alias Hira Lal 10 Bom. H.C.R. 241 and Mahabir Persad v. Kundan Koer 8 W.R. 116, which have been cited to us, and also in the decision of Sir Richard Garth and Mr. Justice Prinsep, which has been put in as an exhibit in this case. It is admitted by the learned counsel for the Appellant that the Saraogi Agarwallas of Calcutta do not follow any such custom, and it is very remarkable that the parties have gone so far field as Delhi, Paniput, Benares and Jaipore for evidence, and that their evidence so far as the place where the parties live is concerned is not of a class upon which any action can be taken. The decision of this Court to which we have referred includes a finding that at Arrah, Calcutta and other places the Jain Agarwalla, although in matters of religion they have usages and customs which differ materially from these of ordinary Hindus as regards their temporal concerns, especially the rules of inheritance, are governed by the Mitakshara law. This is as much a finding as to the position of Jain Agarwalla as is the case in the North-Western Provinces High Court Reports. We are bound to say that it is new to us that any such custom or anything of the kind altering the law of inheritance has found its way into this province. When we come to see the evidence, it seems pretty clear that nothing of the kind has happened. The only important evidence would be the evidence coming from Barh and Arrah. An attempt has been made to some extent to give evidence to show the custom at Arrah but that evidence in our opinion has completely failed. The general evidence of persons belonging to a particular sect but having made no special study of the customs of that sect, cannot be worth so much as specific instances of a right being asserted successfully by a widow as against reversioners. If the general custom which is alleged existed, there could be no difficulty whatever in giving the clearest possible evidence on the subject, but when we came to examine the deeds which have been put in, we find that one and all they fail The first one, Exhibit D, is by a widow endowing certain property. The property is small, and it does not appear anywhere on the face of the document that the lady obtained the property from her husband. Therefore it proves nothing at all. Exhibit E is by a lady in favour of her adopted son, making over the property which had been absolutely given to her husband under a deed. How this can help the Appellant, it is impossible to see. Exhibit F has not been proved. It was admitted in spite of an objection, but we find no evidence of its execution on the record. Even if it were proved and could be acted upon, it is difficult to see that it amounts to anything. By it a lady makes over to her adopted son certain property, a part of which was obtained from her husband, and a part of which was acquired by herself. There is no allegation of her getting the property absolutely from her husband, and as she had adopted a son, it is clear that she would have no absolute right under any circumstances. Exhibit G is by the same lady in favour of the same person, and has also not been proved. It is not therefore evidence. But even if it were evidence, we find that it comes to nothing more. It is true that there is in it an allegation that on the death of the husband the property came absolutely into the proprietorship and possession of the lady. But whether this means that the reversioners would have no right on her death is by no means clear. At any rate, the only person who was entitled to the property was the adopted son who took under this deed and he has really only taking what it is admitted he was entitled to. That is all the documentary evidence that there is. As we have said before, if the custom had been an universal one, instances could have been multiplied to any extent. As matters stand, however, the affirmance by us on evidence of this kind alleged would, we think, cause great consternation and upset a good many titles. The evidence from Paniput, whence this family a great many years ago seem to have come, may be perfectly good, as may also the evidence from Jaipur and Delhi. But the fact that this family over a bundled years ago was governed by certain customs in another place makes it very difficult for us to hold that those customs still exist, when no evidence whatever, worthy the name, has been given to show that they have been governed by those customs during their residence in the Lower Provinces. Moreover, a mass of evidence has been given to show how very much these people have approached to the Hindus in everything except the worship of Pareshnath. That is exactly as in the case tried by Sir Richard Garth and Mr. Justice Prinsep. It is only in matters of religion that these people differ from the ordinary Hindus We are by no means satisfied in this case that there is clear and satisfactory evidence that the parties to the suit are governed by any custom as to inheritance other than that which obtains under the ordinary rules of Hindu law. It follows, therefore, that on this point also the appeal fails. The appeal is dismissed with costs.