1. This is a defendant's appeal. The suit was for possession of a moiety share in a house No. 50-3 situate in Ghasyari Mandi Naugaza in the city of Cawnpore, by a right of purchase under a sale deed, executed by defendant 2, who is the Official Receiver, in favour of the plaintiff-respondent.
2. The facts which have given rise to this appeal may be briefly sat out as follows: One Chandu Lal who was a Saraugi Jain died leaving a widow Mt. Munya Bibi. His estate devolved upon this lady under the Hindu law of inheritance. She took one Gopi Nath in adoption in or about the year 1908. On 9th January 1909 during the minority of Gopi Nath Mt. Munya, the adoptive mother, for herself and her minor son purchased the house now in suit for Rs. 9,000 from Ram Prasad and certain other parsons. Mt. Munya is alleged to have executed a will on 17th February 1918, in favour of the defendant-appellant, Mt. Bulaqan alias Munni Bibi, who is the wife of her adopted son Gopi Nath. There is a cloud of controversy as regards the due execution and genuineness of this will. It is alleged that the document is a spurious one. It is pleaded in the alternative that at the time of the execution of this will Mt. Munya was non compos mentis. This will was not registered in the life time of Mt. Munya and indeed, not for about a year and a half till after her death It is alleged that Mt. Munya died some time after the execution of this will, the date of her death is not known. On 5th July 1921, Gopi Nath executed a deed of gift in favour of his wife which embraced property other than the property in suit. Gopi Nath was adjudicated an insolvent on the 15th September 1923, and defendant 2 was appointed the Official Receiver. Defendant 2 executed a sale-deed in favour of the present plaintiff of a moiety share in the house on the 24th October 1924, for a sum of Rs. 3,000. Trouble arose between the purchaser and the wife of Gopi Nath as regards the former utilizing the fruits of his purchase and ultimately the present suit was instituted on the 6th January 1925, on the allegation that the house belonged to Gopi Nath, that it vested in the Official Receiver and the latter official was competent to convey a good title to a moiety share in the house by the sale deed executed by him in favour of the plaintiff.
3. The suit was defended on various grounds It was contended that the house was the exclusive property of Mt. Munya, the widow of Chandu Lal, that she as a Jain widow was competent to bequeath the house to the defendant-appellant and the will dated the 17th February 1918, was a valid and operative document. It was further pleaded that Gopi Nath had subsequent to the death of his adoptive mother ratified the will in favour of Mt. Bulaqan, his wife and thereby had passed a title to his wife under the will.
4. The learned Subordinate Judge of Cawnpore decreed the plaintiff's suit. He held that the house in question was purchased by Mt. Munya on the 9th January 1909, out of the funds which came into her hands from the estate of her husband Chandu Lal: that by the said purchase Gopi Nath became the absolute owner of the property, that Mt. Munya was not, therefore, competent to bequeath the property to her daughter-in-law Mt. Bulaqan, and that the will executed by Mt. Bulaqan could not be rendered operative by any subsequent ratification by Gopi Nath because Mt. Munya had no power to make a bequest of this property which did not belong to her and no act of ratification could validate a transaction made by a person who had not entered the same in the capacity of an agent.
5. In appeal, it is contended that Mt. Munya being a Jain widow it must be held in law that she was the absolute owner of the property which devolved upon her by inheritance from her husband Chandu Lal and that the adoption of Gopi Nath by her did not divest her of her estate as a Jain widow. We find it extremely difficult to subscribe to this proposition.
6. The four main divisions of the Saraugi Jains are Parma, Oswal, Agarwal and Khandewal. Although in certain respects they are dissenters from Hinduism, in matters of inheritance they follow the ordinary Hindu law. Unless a special custom is pleaded and proved, the ordinary Hindu law governs succession amongst the Jains. It cannot be assumed that they do possess a peculiar custom of inheritance with reference to the property which devolves upon a Jain widow from her husband and reported decisions cannot supply the place of evidence and any fact relating to custom has got to be proved by the production of evidence bearing upon the question sought to be proved. It cannot be held, as a matter of fact, that a custom in deviation from the general law exists in a particular Jain family or in the caste generally but the matter has got to be pleaded and proved like any other fact. This proposition is supported by considerable authority. In Rukhab v. Chunilal  16 Bom. 347, Jardine, J., cites with approval the following texts quoted from West and Buhler:
It is now settled law that the ordinary Hindu law of inheritance is to be applied to Jains in the absence of custom and usage varying that law.
7. In Chotay Lall v. Chunnoo Lall  4 Cal. 744 their Lordships of the Judicial Committee observe:
The customs of the Jains, where they are relied upon must be proved by evidence, as other special customs and usages varying the general law should be proved, and that, in the absence of proof, the ordinary law must prevail.
8. In Rup Chand v. Jambu Parshad  32 All. 247, Sir Arthur Wilson observes at p. 353 (of 7 A.L.J.) as follows:
So far as the pure law applicable to the case is concerned there is nothing in doubt. There is no longer any question that by the general Hindu law applicable to the twice-born classes, a boy cannot be adopted after his marriage, and there is no doubt that the Agarwala Jains belong to one of the twice-born classes.
9. It was held in this case that the general Hindu Law was applicable to the twice-born classes including the Jains and a special custom as regards the adoption of a married boy had to be proved like any other fact. In Mandit Koer v. Phool Chand Lal  2 C.W.N. 154 it was held that:
when a custom to the effect that the widow of a sonless intestate (amongst the Saraugi Agrawalas of Barb) takes an absolute interest in his property, is set up it must be shown by the clearest and unvariable evidence that particular custom applied to the particular place where the parties resided.
10. It would be unnecessary to multiply further authorities. The learned advocate for the appellant strongly relies upon the decision of the Judicial Committee in Sheo Singh Rai v. Dakho  i All. 688 as an authority for the proposition:
that although ordinary Hindu law, in the absence of proof of special customs, has usually been applied to persons of the Jain sect in Bombay, yet the Jains possess the privilege of being governed by their own peculiar laws and customs when the (SIC)ame are by sufficient evidence capable of being ascertained and defined and are not open to objection on grounds of public policy or otherwise
11. Reliance has been particularly placed upon the following passage from the head-note:
A sonless widow of a Saraugi Agrawala takes by the custom of the sect a very much larger dominion over the estate of her husband than is conceded by Hindu law to the widows of orthodox Hindus to the extent at least of an absolute interest in the self-acquired property of her husband.
12. In the written statement, the defendant has nowhere alleged that the property was purchased with the money which was the self-acquisition of her husband Chandu Lal. This was a matter which ought to have been alleged and which was capable of being proved. We are not in a position to make such a very large assumption in favour of the defendant-appellant that the said money was the self-acquisition of Chandu Lal. The Privy Council decision relied upon by the appellant does not therefore, admit of application to the facts of the present case. No custom as was set up in the case last referred to was alleged or proved. It follows, therefore, that Mt. Munya acquired this property with her husband's money as the property of her adopted son and from the date of the adoption, she was divested of her estate. It further follows that the lady was not competent to execute a will in favour of her daughter-in-law so as to pass a title to her, even on the assumption that the will was a perfectly genuine and bona fide transaction.
13. As has already been noticed above, the house in dispute is not one of the properties conveyed by the gift dated 5th July 1921, by Gopi Nath to the defendant-appellant. She can, therefore, have no title to the property under the deed of gift as such. The execution of the document cannot in any way directly or indirectly legalize the will executed by Mt. Munya in favour of the appellant. We do not think that there is any force in this appeal. It is accordingly dismissed with costs.