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Suganchand Bhikamchand Vs. Mangibai Gulabchand - Court Judgment

LegalCrystal Citation
Decided On
Case NumberFirst Appeal No. 13 of 1939
Reported in(1942)44BOMLR358
AppellantSuganchand Bhikamchand
RespondentMangibai Gulabchand
DispositionAppeal allowed
hindu law-jams-adoption-adoption by widow in joint family-consent of husband or coparceners whether necessary-manoaris of marwar-visa oswal jains of jodhpur-migration to thomt-presumption of carrying law of origin-custom-proof-judicial decisions-general testimony of witnesses-specific instances of custom.;among jains in the bombay presidency the widow of a coparcener in a joint family is competent to adopt a son without the authority of her husband and without the consent of his coparceners. the customary law of the jains in marwar is the same. it governs the visa-oswal jains, who originally belonged to the jodhpur state but migrated to the thana district in the bombay presidency.;when a custom has been repeatedly brought to the notice of the courts and has been recognised by them.....john broomfield, j.1. the plaintiff-appellant, whose suit for partition of his half share in joint family properties has been dismissed by the trial court, claims to be the adopted son of one bhikamchand, brother of gulabchand defendant no. 1, the adoption having been made by bhikamchand's widow jadavbai defendant no, 2 on may 8, 1936.2. gulabchand and bhikamchand were members of a joint family. bhikamchand died in april, 1926. in 1927 jadavbai wanted to adopt a certain boy, not the plaintiff, but defendant no. 1 objected and the idea was dropped. in july, 1929, there was an agreement between defendant no. 1 and jadav-bai making provision for her residence and maintenance. on april 30, 1936, jadavbai sent a formal notice to defendant no. 1 announcing her intention of making an adoption......

John Broomfield, J.

1. The plaintiff-appellant, whose suit for partition of his half share in joint family properties has been dismissed by the trial Court, claims to be the adopted son of one Bhikamchand, brother of Gulabchand defendant No. 1, the adoption having been made by Bhikamchand's widow Jadavbai defendant No, 2 on May 8, 1936.

2. Gulabchand and Bhikamchand were members of a joint family. Bhikamchand died in April, 1926. In 1927 Jadavbai wanted to adopt a certain boy, not the plaintiff, but defendant No. 1 objected and the idea was dropped. In July, 1929, there was an agreement between defendant No. 1 and Jadav-bai making provision for her residence and maintenance. On April 30, 1936, Jadavbai sent a formal notice to defendant No. 1 announcing her intention of making an adoption. Defendant No. 1 replied to the notice on May 5, 1936, saying that Jadavbai had no right to make an adoption and that he was strongly opposed to it. However, the adoption took place. The fact of adoption was at first disputed in the lower Court but was afterwards admitted. Defendant No. 1 refused to give the plaintiff a share in the family properties, and this suit was brought in September, 1936.

3. The parties are Marwari Jains of the Visa-Oswal community. The family originally belonged to the Jodhpur State but migrated to the Thana district some generations ago, in 1891 according to the statement made by defendant No. 1. In the written statement there is a general assertion that the adoption is contrary to the Dharmashastras, i.e., Hindu law, and also to the custom of the Jain community in Jodhpur State. The only particular reason given for the alleged invalidity of the adoption is stated in paragraph 3 and is that the plaintiff is said to be neither of the defendants' religion nor of the defendants' family. But at the hearing of the case it was alleged that no widow in this) community can validly adopt unless she has either the permission of her husband or the consent of his relations.

4. The issue on the point raised by the trial Judge was in a very general form : What is the law of adoption applicable to the parties Is the adoption valid and legal according to law and custom The learned Judge found that the plaintiff is of the same family and caste as the defendant and that anyhow there is no law or custom proved which requires that the adopted son should be of the same family, caste or religion as the family into which he is adopted, but he upheld the defendants' contention that the adoption, of plaintiff without the consent of defendant No. 1 was not legal and valid ' according to law and custom ', and dismissed the suit.

5. Jains are ordinarily governed by Hindu law, as was held in Chotay Lall v. Chunno Lall , and many other cases. An alleged custom contrary to the Hindu law must be proved, but, as pointed out in Banarsi Das v. Sumat Prasad (1936) I.L.R. 58 All. 1019, when 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 calling) evidence in each case. Another proposition of law as to which there is no dispute is that where a Hindu family migrates from one province to another, the presumption is that it carries with it its personal law, i.e. the laws and customs as to succession and family relations prevailing in the province from which it came. It is a rebuttable presumption, and the plaintiff in this case has alleged that his family (meaning the family of the parties) has adopted the law of Bombay. No attempt, however, has been made to prove this allegation, and we must take it that the relevant law and custom, is that of Jodhpur. Cases such as Bhimabai v. Gurunathgouda Khandappa-gouda (1932) L.R. 60 IndAp 25 which deal with the Mitakshara law, as interpreted and understood in the Mahratha districts of the Bombay Presidency, have no application here.

6. The plaintiff has not told us what according to him is the law prevailing in Jodhpur. The defendant says that it is the Benares law, that is to say the Mitakshara as interpreted by the Benares School, but in any case the only parts of India in which a widow can adopt without the permission of her husband are the Madras and Bombay Presidencies. Plaintiff attempted in this case to prove that Jadavbai's husband authorised her to adopt before his death, but the evidence on this point is very unsatisfactory and the trial Judge's rejection of this evidence has not been challenged in the appeal. We must take it therefore that according to the Hindu law prevailing in Jodhpur this adoption would be invalid, and would indeed be invalid even if defendant No. 1 had consented to it, since the husband had not given his permission. But in many respects Jains are governed by special custom at variance with the Hindu law, and as neither party can rely upon the law, the question of the validity of this adoption, without the authority of the husband and also without the consent of his relations, depends on whether there is a custom by which such adoptions are valid.

7. In Asharfi Kunwar v. Rup Chand I.L.R. (1908) All. 197 it was held that according to the law and custom prevailing amongst the Jain community (the parties to the case' came from the Saharanpur district) a widow has a power to adopt a son to her husband without any special authority to that effect. This case was affirmed by the Privy Council in Rup Chand v. fambu Parshad , and it appears that their Lordships agreed generally with the High Court, although the main point, if not the only point, argued in the Privy Council appeal was whether the custom permitted the adoption of a married man. Again in Banarsi Das v. Sumat Prasad it was held that according to a well established and recognised custom among the Jains (in this case also the parties came from Saharanpur) a widow can adopt without authority from her husband or permission of his kinsmen. In this case numerous authorities have been cited and discussed, including some decisions of the Privy Council, for instance Sheo Singh Rai v. Dakho I.L.R. (1878) All. 688 where it was held that according to the usage prevailing in Delhi and other towns in the North-Westem Provinces,, among the sect of the Jains known as Saraogi Agarwalas ; a sonless widow takes an absolute interest in the self-acquired property of her husband and has a right to adopt without permission from her husband or consent of his kinsmen. The conclusion arrived at from the study of the cases was that the custom under which a Jain widow can adopt a son to her husband without her husband's authority or permission of his kinsmen has been recognised by judicial decisions since 1833 in, different parts of the country, i.e. Bengal, Central Provinces, United Provinces and the Punjab. It was also pointed out in the course of the judgment that in respect of the prevalence of this custom there: was no material difference between the Agarwal, Choreewal, Khandwal and Oswal sects of the Jains.

8. It was held in Harnabh Pershad v. Mandil Das I.L.R. (1899) Cal. 379 that judicial decisions recognising the existence of a disputed custom amongst the Jains of one place are very relevant as evidence of the existence of the same custom amongst the Jains of another place, unless it is shown that the customs are different. The same proposition has been laid down by Mr. Justice Fawcett in Parsho-tarn v. Venichand (1920) 23 Bom. L.R. 277.

9. There is no presumption that the custom held established in the cases to which I have referred applies to all Jains wherever they; are in India. There is for instance) no such custom among Jains in Madras. An attempt was made to prove a similar custom by certain converts to Jainism in Tanjore in Southern India, but the custom wasi negatived by the High Court in Peria Ammani v. Krishnasami I.L.R. (1892) Mad. 182 and in view of this decision it was held in a later case, Gettappa v. Eramma I.L.R. (1926) Mad. 228 that the fact that the custom has been upheld by Courts in the other Presidencies among certain sects of Jains does not warrant a general presumption of the prevalence of the custom in the Madras Presidency.

10. The custom in question does not prevail ire the Bombay Presidency either, as appears from Yamashetti Bkaushetti v. Ashok Bhamshetti [1940] Bom. 819. It was held there that the Jains in Bombay are governed in this respect not by custom but by the law as laid down by the Privy Council in Amarendra Mansingh v. Sanatansingh (1932) L.R. 60 IndAp 242 and Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 IndAp 25. No doubt the result is the same, that, is to say among Jains in Bombay a widow may adopt without the consent of the husband or his co-parceners as in the case of other Hindus. But that is by reason of the provisions of the law ' itself and not by reason of any ancient custom in derogation of the law.

11. However, prima facie there is much more affinity between the Jains in Marwar and those in Delhi and Northern and Central India than with converts to Jainism in Tanjore or even with Jains in Bombay, and I may mention that in one of the cases I have already referred to, Asharfi Kunwar v. Rup Chand, the Court found that the custom was the same among Jains in the Jaipur State, which adjoins Jodhpur, as it was found to be in the Saha-ranpur district. One would certainly expect to find the custom held established in Banarsi Das v. Sumal Prasad and the various decisions cited there prevailing in the Jodhpur State also. Although there is no presumption to that effect-and the trial Judge was right in throwing on plaintiff the burden of proving the existence in Jodhpur of a custom by which his adoption is made valid-the proved existence of this custom in North and Central India is no doubt strong evidence in his favour.

12. Both sides in their evidence have referred to a number of instances of adoptions, some in Marwar, which I may mention is another name for Jodhpur State, some in Thana. All of them are comparatively recent, the earliest date I think is about 1924. Learned counsel for the plaintiff conceded! that his client had not adduced evidence sufficient to establish what the custom in Jodhpur is in this respect, apart from a judicial pronouncement of the Maharaja of Jodhpur, exhibit 170, to which I shall refer later. Learned counsel for the defendants relied on four or five cases only out of those referred to by the witnesses.

13. There is first the case of the adoption of one Meshrimal which took place about 1924. He was adopted by Dhakubai widow of Chandramal who was a cousin of Gulabchand, defendant No. 1 in the present case. Gulabchand objected to the adoption. He wanted his own brother Bhikamchand to be adopted. But the adoption took place and the adopted son got Chandramal's estate. What Gulabchand says about this is that he withdrew his objection because provision was made for Chandramal's daughter. It seems to be a fact that some land was given to this daughter before the adoption took place. But there is nothing to support defendant No. I's assertion that his consent to the adoption was obtained in this way.

14. A witness Amarchand has deposed that his sister Parvati adopted a boy named Chandamal in about 1927. He says that Parvati's husband's brother and brother's son were living and that the husband's brother at first objected. The adoption took place, however, and six months afterwards a dispute arose, but apparently the only dispute was as to what property the adopted son was to get. Some property was alleged by the husband's brother to be his self-acquisition. This case, therefore, obviously does not help us at all.

15. Then there is the case of an adoption by one Sirekuvarbai widow of Zum-barlal deposed to by a witness Bacharaj. He says that Zumbarlal's brother's son objected, but his objection was, not listened to and so the caste people did not attend. The witness himself says he did not attend because he was afraid of a scuffle taking place. The evidence does not show, however, that the adoption was not legally valid.

16. Another instance referred to is that of Mohanraj who was adopted by the widow of Kesarimal. A witness Ghewarchand has deposed that the permission of Kesarimal's brother was taken. However, even if it is merely for the sake of preserving peace in the family, the consent of the relations will naturally be taken if it can be obtained, and instances of this kind go only a very little way towards establishing an invariable and binding custom.

17. The last case mentioned by Mr. Desai, that of one Bhimraj adopted as a son to Ratanchand, is also of no assistance, because all that the evidence shows is that there was some kind of dispute about it.

18. It may perhaps be said to follow from the instances given that the consent of the relations of the husband is usually obtained, and when an adoption is made without that consent, it has frequently led to trouble of some kind. There is, I think, no single case actually referred to in detail in the evidence in which an adoption without the consent of the relations has been recognised as permitted by custom without opposition or some sort of compromise. However, as I say, the husband's relations would normally be consulted, whether the law strictly requires it or not. It certainly cannot be said that the defendants have established that there is a binding custom which makes it necessary to obtain the consent of the relations. No case has been referred to in which an adoption made without that consent has actually been set aside.

19. Witnesses have been examined on both sides who have made general assertions that the custom in Marwar and among the Jains in Thana is as alleged by the plaintiff or as alleged by the defendant respectively. In the evidence of this group of witnesses no particular instances have been referred to at all. Nor is any reference made to judicial decisions. That fact does not make the evidence inadmissible. In Ahmad Khan v. Channi Bibi (1925) L.R. 52 IndAp 379, the Privy Council said (p. 383) :.their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiff's side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of the High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence and its exercise without controversy.

20. There is no doubt that if the evidence is all one way, or if there is a strong preponderance of evidence in favour of a particular custom, the Courts cannot ignore it, although the witnesses do not cite specific cases in support of their statements. But general evidence of this kind which is conflicting has obviously very little value, and in the present case there is a hopeless conflict and no very good reason, as far as I can see, for preferring the general statements made on one side to those made on the other. The best of the witnesses of this class is perhaps Chunilal, who is a Bhat or bard from the Jodhpur State. He has stated that according to the custom which prevails throughout Manvar the widow can adopt provided she has the consent of the next heirs of her husband. But the witness has also stated that the boy to be adopted must be a near relation. That latter statement seems to be clearly wrong. There is not the slightest reason to suppose that the custom isi limited in this way. That being so, it is difficult to rely upon his statement as to the incidents of the custom in other respects.

21. One thing is very evident in this case and that is that there is a cleavage of opinion among those Jains who have come from Marwar as to what the customary law about adoption is. This dispute has given rise to factions and the evidence in the case is very probably coloured by this. It is not clear how or when these disputes arose.

22. The learned trial Judge was very much influenced by a statement made by the minor plaintiff's next friend. He said in the course of his cross-examination : ' It is true that a widow in a joint family in our community must have the permission of the husband or of the eldest male member of the family for adoption. Jadavbai's husband had given permission three or four days before he died.' Mr. Coyajee for the appellant argued that this statement is not binding on the minor plaintiff and he referred to a passage in Treve-lyan's Law of Minors at pagq 271 and to Waghji Thackersey v. Khatao Rowji I.L.R. (1886) 10 Bom. 167. The statement is not binding upon the plaintiff. Nevertheless it is relevant evidence and it is not easy to understand plaintiff's next friend making this admission, unless it is in accordance with ideas prevailing in the community at the present time. But I must say that the effect of the admission seems to me to be very largely counteracted by the fact that defendant No. 1 omitted to mention in his written statement the particular custom on which he mainly relied at the hearing of the suit. So that his own ideas on the question must evidently have been rather hazy.

23. If we had only the oral evidence to go by, it would certainly be impossible to hold that plaintiff's adoption is valid by the customary law of the parties, and if he is to succeed, it must be mainly on the strength of a piece of evidence which it now remains to consider, exhibit 170. This is a certified copy of a letter from the Chief Minister of the Jodhpur Government to the Judicial Minister communicating the decision of the Maharaja, on appeal from the Chief Court of Jodhpur, in three appeals arising out of a suit brought by reversioners for the cancellation of an adoption by a widow. The adoption was alleged' to be invalid on various grounds, one being that the widow had adopted without the consent of her husband. Exhibit 170 must, I think, be regarded as the judgment of the highest judicial tribunal in Jodhpur. Mr. Desai did no doubt raise the objection that the judgment is not reported. We know nothing, however, about the practice in Jodhpur State in the matter of reporting judgments. No objection of this kind to exhibit 170 seems to have been made in tha Court below. It has never been suggested that it is not a true copy of the Maharaja's decision.

24. This objection that the widow could not adopt without the consent of her husband was dealt with in the judgment as. follows :-

The Chief Court has found against the plaintiffs as regards this plea and has held that a Jain widow does not require the consent of her husband and her kinsmen. This His Highness considers is the correct interpretation of the law on the point. As held by the Privy Council in Rup Chand v. Jambu Parshad no authority is required in the case of an adoption by a Jain widow. Moreover1 it is the universal custom in Marwar, which has been recognised uniformly by the Courts in Marwar, that no sanction of the husband or kinsmen is needed for validating, an adoption by a widow. Thus both according to Jain custom and the custom of Marwar a widow has the authority to make an, adoption even without the authority of her husband.

25. The expression ' interpretation of the law ' in this passage means, I think, customary law, and the effect of the pasesage as a whole, as I understand it, is that the customary law applicable to Jains generally in Upper and Central India is that a widow can adopt without the consent of her husband or of his relations and that the customary law of the Jains in Marwar, as uniformly recognised by the Courts there, is the same. No other decisions are actually cited. They were probably given in the judgment of the Chief Court. But the existence of these decisions is a statement of fact which it is impossible to ignore. The matter must surely have come before the Courts on many occasions and the defendants have not cited a single casei in which the custom alleged by them has been upheld. The fact that according to this judgment ihe custom has been recognised by a course of decisions in the Courts in Marwar is the answer to the learned trial Judge's objection that the custom should not be held proved by a single judgment.

26. It has been contended by Mr. Desai that the judgment is not sound and should not be accepted by this Court as an authoritative recognition of the custom, because, according to him, a confusion has been made between law and custom. Near the end of the judgment the following passage occurs :-

Thus under Hindu law the adoption in dispute is valid. That being so it is not for the party who seeks to establish the validity of the adoption to make out .a case under 'customary law. On the contrary it is for the party that challenges the adoption to establish custom. The trial Court was not therefore right in having thrown the onus on the first two defendants of proving the validity of the adoption.

27. Further on there is this sentence :

As has been already stated above custom has to be! established only if it runs counter to law which is not the case as regards the adoption in, dispute.

28. I am by no means sure, however, that Mr. Desai's criticism is justified. There were many other points in the Jodhpur case besides the one which I have mentioned. One of the objections to the adoption was that the widow could not adopt as she did not inherit the estate. Another was that her power to adopt had become extinguished because prior to the adoption the estate had vested in the collaterals. It appears therefore that all those difficult legal questions which arose as the result of the Privy Council decisions in Bhimabai's case and Amarendra's case had to be considered and determined in this Jodhpur judgment. In connection with these points numerous authorities were cited and discussed, authorities on points of law, not custom. The passages to which Mr. Desai has drawn attention may, I think, well refer to these other aspects of the case. It is not by any means clear that these statements at the end of the judgment qualify what is stated at the beginning on the point of the consent of the husband's relations.

29. But, however that may be, I do not consider that this Court is called upon, to criticise the judgment or to examine its correctness. There is no question here of the binding character of a foreign judgment such as arises under Section 13 'of the Civil Procedure Code. The issue before us is what is the customary law of the Jains in Jodhpur in the matter of adoptions. What the, law in a foreign country is is a question of fact to be proved by evidence, and I find it difficult to see what better evidence one could have as to the state of the custom prevailing in Jodhpur than this judgment of the highest tribunal in that State. Whether the judgment is right or wrong, it must be said to settle what the custom is in Jodhpur just as effectively as the decisions of the Allahabad High Court for instance have settled it for Jains in Saharanpur and elsewhere and for that matter just as effectively as the Judicial Committee has settled it for Jains in Delhi in Sheo Singh Rai v. Dakho. There can no longer be any dispute as to what the customary law in Jodhpur is so far as subjects of the Jodhpur State are concerned, alnd though the judgment as a judgment does not bind the present parties, it is, I think, sufficiently cogent evidence against them, they being governed by the law of the Jodhpur State.

30. One of the points urged by Mr. Desai was that when a family migrates, it is the law existing at the time of migration which continues to govern the migrated members until it is renounced. He suggested that the custom found established in exhibit 170 may perhaps have grown up since the migration of the family of the parties and it was for the plaintiff to prove the contrary. We think, however, there is no substance in this argument. According to the statement of defendant No. 1 himself the migration took place in 1891, but the cases referred to in Banarsi Das v. Srnnat Prasad show that even in 1833 the custom was recognised as an ancient one. There is not the slightest reason to suppose that it was of later growth in Marwar than in other parts where the Jains are shown to have been following it. I may mention in this connection that, according to one of the learned Judges who decided Gettappa v. Emmma I.L.R. (1926) Mad. 228, the special customs of tha Jains are largely based upon the teachings of their own law-givers, in which case they must be extremely ancient-One other argument on behalf of the respondents must be mentioned. Mr. Desai said that in view of the admission made by the plaintiff's1 next friend, his clients may have refrained from producing all the evidence in their possession, and he asked that there should be a remand in order to enable the defendants to adduce further evidence. We consider, however, that there are no grounds for any such request. The foundation for it seems to be merely a statement occurring in the deposition of defendants' first witness Kanakmal, who stated at the end of his deposition in cross-examination ' The custom is hereditary and there are hundreds of such adoptions '. It is suggested that the defendants might have been able to give particulars of some of these numerous adoptions. However, as far as I can see, there is not the slightest reason to suppose that the defendants were misled or that they were in any way prevented from producing all the evidence they wished to produce for the consideration of the Court. The issues were framed in a general way without specifically throwing the burden of proof on either party, and though the judgment of the learned trial Judge shows that he attached importance to the admission of the plaintiff's next friend, there is no reason to suppose that the view which he took of this had any effect in restricting the amount of evidence which the defendants produced. We find therefore that according to the customary law by which the parties are bound the plaintiff is the lawfully adopted son of Bhikamchand and is entitled to succeed in his suit.

31. We allow the appeal and set aside the decree of the trial Court. We declare that plaintiff is the adopted son of Bhikamchand and is entitled to a half share of the properties mentioned in schedules A and B to the plaint except such properties as may be proved to have been alienated prior to the adoption. The trial Court must find after inquiry what these alienated properties are, and having done so, must take steps to effect a partition through the Collector or a Commissioner, as the case may be. Plaintiff is also entitled to a half share in the ornaments belonging to the family. The trial Court must inquire and determine what family ornaments are in the 'possession of the defendants and liable to be divided, and pass orders accordingly. The plaintiff is entitled to mesne profits from the date of the suit and an inquiry must be held as to that also.

32. As regards costs, the plaintiff must get his costs of the suit from defendant No. 1. The other defendants will pay their own. There will be the same orders as to the costs in the appeal. Defendant No. 1 must pay the court-fees both in the suit and in the appeal which the plaintiff would have paid if he had not been allowed to sue and appeal as a pauper : Order XXXIII, Rule 10.

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