1. The question in this case is as regards the validity of the adoption of defendant No. 1 by Dahi, the junior widow of one Jamnabharthi who died in March 1921 leaving an infant son, Purshottamgir, and two widows, Javer (senior) and Dahi (junior) On February 20, ln21, he left a will authorizing Dabi to make an adoption after the death of his son Purshottamgir. Purshottamgir died in August 1921, and on September 13, Bai Dahi adopted defendant No. 1. The senior widow Javer has brought this suit for a declaration that defendant No. 1 is not the adopted son of her husband Jamnabharthi.
2. Before the Subordinate Judge the defendants set up the custom of adoption of a chela by the Mathadhipati and the custom of the adoption of a chela by a widow if authorized by the Mathadhipati. The learned Subordinate Judge came to the conclusion that Gharbhari Qosais of Charotar did not countenance the right by birth of their sons in the ancestral property, and that there was no right of the sons by birth in this community and held that the adoption was valid, though he came to the conclusion that the custom set up of adopting a chela by the Mathadhipati and the custom of adoption by the widow being authorized by the Mathadhipati to adopt a chela were not proved.
3. The lower appellate Court came to the conclusion that Gharbhari Goaais of Charotar, i. e., a tract of Gujarat lying between the rivers Mahi and Sabarmati, form a distinct sect by itself governed by the same rules of property and succession which apply to secular masses under the Hindu law, including the son's right by birth in ancestral property. With regard to the practice of making chelas by widows, the only instance before the Court was that of an adoption by Amba, and the learned Judge came to the conclusion that the solitary instance was not Patkar J. sufficient to prove the custom of making chelas by widows among the Gharbhari Goaais.
4. It is urged on behalf of the appellant that the finding of the lower appellate Court should not be accepted as the onus of proof was thrown on the defendants and that the lower appellate Court has not considered the whole evidence in the case. The question of onus of proof has greater force in an original trial and hardly arises in an appeal where the appellate Court has to consider the facts and arrive at a conclusion on the evidence led before the trial Court. The finding of the lower Court is based on the evidence led before the Subordinate Judge after consideration of all the circumstances in the case, and is, therefore, binding on us in second appeal. We must, therefore, take it as found by the lower appellate Court that the practice of adopting chelas by widows is not proved amongst the Gharbhari Gosais to which sect the deceased belonged. The cases cited on behalf of the appellant do not bear upon this point. In Gosain Bambharti Jagrupbharti v. Mahant Surajbharti Haribharti I.L.R (1880) Bom. 682 it was held that marriage does not work a forfeiture of the office of Mahant and the rights and property appendant to it. In Balgir v. Dhondgir (1902) 5 Bom. L.R. 114 the question was whether one of the sons of the Gharbhari Gosais could succeed as a tonsured chela to the property of the deceased father to the exclusion of the other sons, and it was held that though a stranger may be adopted as a chela, one of the sons could not be adopted so as to prejudice the rights of the other sons, and all the sons of the Gharbhari Gosais succeed, in the absence of an adopted chela, equally to the property of the deceased. The decision does not deal with the question as to the custom relating to the right of a widow to adopt a chela to the deceased Gosai. The next case relied on is Gitabai v. Shiv-bahas (1903) 5 Bom. L.R. 318 where the question was as to the right of the widow of a Gharbhari Gosai to suoeeed to his property in preference to the chels of a Gurubhau of the deceased, and it was held that she was not entitled to so succaed, but was entitled to residence in and maintenance from the property of her deceased husband. The cases, therefore, cited on behalf of the appellant do not bear 1028 upon the question as to whether a widow of a Gharbhari Gosai can adopt a chela to the deceased Gosai. The evidence in this B> case consists of only one instance of Bai Amba. With regard to a custom of this character, it haa been held by the Privy Council in Ramalahshmi Ammal v. Sivanantha Perumal Sethvrayar (1872) 14 M.I.A. 570 that it is of the essence of special usages, modifying the ordinary law of succession, that they should be ancient and invariable, and it is further essential that they should be established to be so by clear and unambiguous evidence. See Mahomed Ibrahim v. Shaikh Ibrahim : (1922)24BOMLR944 Abdul Hussein Khan v. Bibi Sona Dero (1917) L.R. 45 IndAp 10; and Martand Rao v. Malhar Rao (1927) 30 Bom. L.R. 251, The evidence in this case falls short of the standard of proof necessary to establish a custom in favour of the right of a widow to adopt a chela. The decision in Chhajju Gir v. Diwan I.L.R (1906) All. 109 bears on this question. In that case the plaintiff set up a custom as prevalent amongst the Grihast Goshains of Hardwar and other places adjacent in the United Provinces whereby the widow of a deceased Goshain was entitled with the concurrence of the elders of the sect to adopt a chela and successor to her deceased husband, and it was held on the evidence in that case that such custom was not established. It is observed at Section 115 that a person who has had no association with a spiritual guide could not, except by fiction, be his chela, and that a posthumous chela was a contradiction in terms. Reference was made to West & Buhler's Hindu Law, 3rd Edition, Vol. I, page 565, and the opinion of the Shaetris, based on the Vyavahara Mayukha, para 142, which does not deal with the question as to the right of a widow to adopt a chela. We think, therefore, that it is not proved in this case that the widow of a Gharbhari Gosai of Charotar can adopt a chela to the deceased Gosai.
5. Further, in the will, Exhibit 51, Dahi was not authorized to adopt a chela but was asked to adopt a son, and the Gharbhari Gosais of Charotar being governed by the same rules of property and succession which apply to secular masses under the Hindu law, we have to consider whether the adoption of defendant No. 1 is valid. It appears that on Jamnabharthi's death in March 1921, the property went to Purshottamgir as his heir, and after the death of Purshottamgir in August 1921 the property went by inheritance to his mother Javer.
6. The property, therefore, being vested in Javer, it would A. o. j. follow that the power of adoption of Dahi, the junior widow, 192S would come to an end. It is urged on behalf of the appellant ''''' that the power of adoption of Dahi did not come to an end as there was a specific authority given by her husband by his will. The decisions in Bachoo HurM&ondas; v. Mankorebai Pratapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46 IndAp 97, s.c. Bom. L.R. 496 and Sri Raghu-nadha v. Sri Brozo Kishoro relate to cases where the widow's power of adoption was not extinguished but was suspended. In Pratapsing Shivsing v. Agarsingji Raisingji it is held that the right of the widow to make an adoption is not dependent on her inheriting as a Hindu female owner her husband's estate, and that she can exercise the power, so long as it is not exhausted or extinguished, even though the property is not vested in her. In the cases above referred to the property was not vested in the widow on account of the nature of the estate, either on account of its being an impartible Zeinindary or of the nature of a Jivai grant or on account, of its being property belonging to the joint family. The authority to adopt given by the husband cannot, however, be exercised when the power of adoption itself has come to an end. See Ramlcrishna v. Sham-raoI.L.R (1902) 26 Bom. 526 : 4 Bom. L.R. 315; Madana Mohana v. Purushothama and Basan-gowda v. Rudrappa : AIR1928Bom291 . In Mussumat Bhoobun Moyee Debia v. Ram Kishore Aoharj Chowdhry (1865) M.I.A. 79, 310 and Madana Mohana v. Purushoihama (1908)L.R. 45 IndAp 156: 20 Bom. L.R. 1041 the authority to adopt was as a matter of fact given but it could not be exercised on the ground that it was incapable of execution. When the estate vested in the senior widow, Javer, by right of inheritance to her son Purshottamgir, she could continue the line by adoption. The vesting of the estate in Javer was 'a proper limit to the exercise of the power', and the moment that limit was reached, the power of adoption of the junior widow, Dahi, was at an end. To the same effect are the decisions in Chandra v. Gojarabai I.L.R (1890) Bom. 463; Shiv-basappa v. Nilava I.L.R (1922) Bom. 110 : 24 Bom. L.R. 1162; and Adivi Suryaprakasa Rao v. Nida-marti Oangaraju I.L.R (1908) Mad. 228. The facts of this case resemble the facts in Anandibai v. Kashibai I.L.R (1904) Bom. 461, and Faizuddin Ali Khan v. Tincowri SahaI.L.R (1895) l. 565. The adoption, therefore, of defendant No. 1 would be invalid as the property was vested in the widow Javer after the death of Purshottamgir, and Dahi's power of adoption came to an end.
7. On these grounds, we confirm the decree of the lower appellate Court and dismiss the appeal with coats.