1. This is judgment will also govern Second Appeal No. 627 of 1952.
2. These appeals arise out of a suit instituted by the respondent No. 1 in this appeal who is the sole respondent in the other appeal, under Order 21, Rule 63 of the Code of Civil Procedure, for a declaration that a certain property which he had attached in execution of two decrees against the respondent No. 2 Narayandas belonged to him and not to the present appellant.
3. The relevant facts are as follows: The property in question was originally owned by Sunderdas. After his death, his widow Radhabai took the respondent No. 2 in adoption. It is contended by the respondent No. 1 that by virtue of the adoption he succeeded to this property and has become the owner thereof. It would appear that Radhabai gifted this property to the appellant in the year 1941 by virtue of which the appellant is in possession of this property.
4. It was contended on behalf of the appellant that the adoption was invalid because Narayandas as well as his father Sunderdas being Udasis, they were governed by the customary law prevailing in Punjab from where the family had migrated to Berar and amongst them adoption is not permitted. On behalf of the respondent Motilal, it is not permitted. On behalf of the respondent Motilal, it was contended that though the family had migrated from Punjab, they had adopted the custom regarding adoption prevailing in Berar. Both the Courts below have held in favour of the respondent on this point and decreed the suit.
5. It is urged before me by Mr. Bobde on behalf of the appellant that a family originating from any particular State of India can adopt a different school of Hindu law provided that family was itself governed by some school of Hindu law, and that where as here, the family is governed by customary law, it cannot adopt the lex loci. According to him, in such a case what the family has to prove is that it had adopted some new customs. He points out that all the decided cases only deal with the change in the school of Hindu law and nothing more. To my mind, the principle underlying these cases would equally apply where a family was not governed by any particular school of Hindu law but was governed by customary law. Indeed, the principle is so general that it is not confined to only Hindus. That would follow from the decision of their Lordships of the Privy Council in Abdurrahim Haji Ismail Mithu v. Halimabai, 43 Ind App 35 : AIR 1915 PC 86 : (at p. 87 of AIR) they have observed.
'Where a Hindu family migrate from one part of India to another, prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom this new custom must be affirmatively proved to have been adopted, but when such a family emigrate to another country, and, being themselves Mohemedans, settle among Mohamedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made.'
Mr. Bobde then argued that whereas the respondent No. 1 alleged that the family of Sunderdas had adopted the lex loci of Berar in the matter of adoption, the evidence is to the effect that Udasis in general who have migrated to Berar have adopted the lex loci as to adoption. The precise pleading of the plaintiff on the point is to the following effect:
'Radhabai and her husband Sunderdas as well as the defendant No. 2 Narayandas were Hindus. They were the permanent residents of Berar and had adopted the customs and usages prevailing here. They were governed by the Mitakshara School of Hindu law as administered by the Bombay School.'
The respondent No. 1 has led evidence on this point and the appellant has led evidence to the contrary. Considering the entire evidence, the lower appellate Court came to the conclusion that Udasis who have migrated from Punjab to Berar have adopted the customs and usages in Berar including the custom relating to adoption. It may be mentioned that even the evidence adduced by the appellant goes to the extent of showing that all Udasis who have migrated from Punjab have adopted the customs and usages of Berar; but according to that evidence, they have not adopted the customs and usages in Berar in regard to adoption. Thus, the only difference between the evidence adduced by the parties is with regard to the custom of adoption. The finding of the lower appellate Court on that point, however, is in favour of the respondent that the custom has been established. Shri Bobde, however, contends that where the plea is to the effect that a particular family has adopted the lex loci, the evidence also should be to that effect. To my mind, even this could be proved by the evidence of the kind which was adduced here. This is really a case where the part is proved by proof of the whole. The respondent No. 1 had averred that Sunderdas and his family who are Udasis have adopted the lex loci of Berar. The evidence is to the effect that not only Sunderdas and his family but the entire Udasi community has adopted the lex loci of Berar. This is not a case of variance between the pleading and the proof, but it is really a case where the proof is more pervasive than the case that was pleaded.
6. Then Mr. Bobde said that the evidence on behalf of the respondent is only to the effect that the Udasis had adopted the custom of adoption, but that it was further necessary for them to prove that under that custom permission of the husband to make an adoption was not necessary. Now, it is to be borne in mind that the precise plea is that the lex loci of Berar was adopted by this family. Under the lex loci, permission of the husband to make an adoption is not necessary and what the witnesses were deposing to was the very fact that the law of adoption prevailing in Berar was adopted by the Udasi community. Mr. Bobde says that there are other communities in Berar in which an adoption cannot be made unless there is permission of the husband. It must be borne in mind that those communities where the permission of the husband is necessary are not governed by the lex loci but by their personal law. Thus, there is no substance in this point.
7. I may also point out that the Nagpur High Court has upheld this very adoption in Purushottam v. Akhada Panchayati Naya Udasi and has laid down therein that the Gharbhari Udasis of Berar who have migrated from the Punjab have renounced the laws and customs prevailing amongst the Udasis of the Punjab and have adopted the laws and customs prevailing amongst the Hindus in Berar. This decision therefore, supports the conclusion arrived at by the lower appellate Court.
8. No other point has been argued. I dismiss each appeal with costs. Leave to appeal under the Letters Patent is refused.
9. Appeals dismissed.