1. The dispute in this appeal relates to certain zamindari and house property situated in the Budaun and Moradabad districts. The allegation of the plaintiffs was that the said property belonged to Rai Baijnath, their maternal grandfather. The plaintiffs are the sons of Mt. Kashmiro, the sole surviving daughter of Rai Baijnath.
2. Rai Baijnath died on the 13th February, 1912. He had a son, Ram Sarup, and two daughters : Mt. Kashmiro and Mt. Nannhi. Sam Sarup died in the lifetime of his father on the 18fch July, 1910 leaving a widow Mt. Bhagwandei. Mt. Nannhi died some time in 1889. She was married to Chandu Lal, by whom she had a son Rajbahadur. At the time of the death of Baijnath, Mt. Kashmiro, his daughter, and Rajbahadur, the son of his other daughter Mt. Nannhi, were the only persons alive. Rajbahadur died on the 6th June, 1912, leaving a widow Mt. Anand Kishori and two minor sons, Kanhaiya Lal and Jagmohan Lai. In the mutation proceedings, which followed the death of Baijnath an application was filed by Mt. Kashmiro, Mt. Bhagwandeo, and Mt. Anand Kishori, the last named acting as the guardian of her two sons, Kanhaiya Lal and Jagmohan Lai, agreeing that half of the property left by Baijnath might be entered in the name of Mt. Kashmiro and the other half in the names of Kanhaiya, Lal and Jagmohan Lal.
3. Another village Gad haul which stood-recorded in the name of Ram Sarup was on the death of Ram Sarup entered in the names of his widow Mt. Bhagwande and Rajbahadur jointly.
4. The present suit was filed by the plaintiffs on the allegation that the property which stood recorded in the name of Baijnath along with the village Gadhauli, which is stated to have been purchased by Baijnath in the fictitious name of his son devolved on his death on his sole surviving daughter, Mt. Kashmiro, and that the compromise filed in the mutation proceeding was not binding on thorn. The plaintiffs accordingly claimed a declaration that as the sons of the sole surviving daughter of Baijnath they were his next reversionary heirs, and that the order passed in the mutation proceedings, including the entry of the names of Kanhaiya Lal and Jagmohan Lal, did not affect their rights.
5. The defence of Mt. Bhagwandei, Kanhaiya Lal, and Jagmohan Lal was that Rajbahadur had been adopted by Ram Sarup in the lifetime of Baijnath, that the village Gadhauli was the self acquired) property of Ram Sarup and that Baijnath had executed a will by which he had allotted one house and a cash allowance of Rs. 5 per measen to Mt. Kashmiro and the whole of the remaining property to Rajbahadur.
6. The case was first tried by Khawaja, Abdul Ali, then the Subordinate Judge of Moradabad, who came to the conclusion that the will, set up by the defendants was not proved; that the village Gadhauli belonged to Ram Sarup; and that the alleged adoption of Rajbahadur was not proved. An application for review was subsequently made by Mt. Anand Kishori on behalf of her minor sons, Kanhaiya Lal and Jagmohan Lal, on the ground that certain additional documentary evidence had been discovered, the existence of which she had been unable to ascertain during the hearing of the suit. There was a further allegation that a certain witness produced by the plaintiffs had fraudulently impersonated a man, who had died many years earlier. The application for review was granted; and the order granting it was upheld by this Court. The case was thereupon re-heard and some additional evidence taken. Another Subordinate Judge had meanwhile succeeded in the office; and the conclusion at which he arrived was that, though the will alleged to have been executed by Baijnath on the 29th January, 1912 was not proved, the adoption of Rajbahadur by Ram Sarup was satisfactorily established; and that the said adoption was valid according to the custom observed by the tribe to which Baijnath belonged.
7. We have thus in the case two judgments dealing with the question of adoption, one delivered by the former Subordinate Judge based on the evidence then adduved before him, and another delivered by his successor, which rests very largely on the documentary evidence which was adduced after the application for review was granted. We are concerned in the present appeal only with the latter.
[After discussing evidence, the judgment proceeded:-]
8. We agree with the learned Subordinate Judge that on the whole there can be no doubt about the adoption of Rajbahadur by Bam Sarup.
9. The next question for consideration is whether there was a tribal or other custom in the caste, to which Ram Sarup and Rajbahadur belonged, recognizing the adoption of a sister's son. Under the Hindu Law the adoption by a person of a boy whose mother he could not have lawfully married in her maiden state is not permissible. The contention of the defendants is that their ancestors came from the Punjab where the adoption of a daughter's son or a sister's son was recognized by custom and that they brought that custom with them when they settled in these Provinces. The parties are Khatris belonging to the Sarin sub division. The Khatris are divided into two main branches (1), Purabiya or eastern Khatris and (2) Panchainva or western Khatris. The Purabiyas are said to have come long ago from the Punjab and to have settled in the eastern Provinces of India. The Panchainva Khatris, are said to have come later to these Provinces and are sub-divided into various sub tribes, each of which embraces a number of clans. The Sarin Khatris belong to one of the sub-tribes of the panchainvas or western subdivision (Sharing on Castes and Tribes, Vol. II, page 76). According to one tradition the Sarin Khatris are so-called, because they hesitated to offer opposition to the mandate of Alaudin Khilji, who wanted to impose widow remarriage among the Khatris a large number of whom had been slain in one of the wars at Ajmer, but to which the main body of the Khatris, who were unwilling to follow the 'Shara Ain' or Muhammadan Law, were bitterly opposed (Crooke on Tribes and Castes, Vol. Ill, page 272). According to another legend the same event is said to have taken place during the reign of Aurangzeb in connection with his wars in the Deccan. Whatever truth there may be in those legends, which the similarity or affinity between the words 'Sarin' and 'Shara Ain' seems to have fostered, there can be no-doubt that the Sarin Khatris are Khatris from the Punjab who had settled in these provinces some centuries back. Several witnesses belonging to the caste, who have been examined in the case have given evidence of a tradition to that effect existing among them; and one of the plaintiff's own witnesses, Bhawani Prasad, has deposed that they did come from the Punjab. The number of Sarin Khatris who have settled in these provinces is not very large. They comprise about 60 or 70 families altogether; and intermarriages among relations, between whom marriages would otherwise be considered reprehensible, are allowed among them.
10. There is evidence to show that the Sarin Khatris have been following the custom prevalent in the Punjab in the matter of adoption. Sheo Dial Singh, a Sub-Inspeotor at Mainpuri, who is himself a Sarin Khatri, states that Ishri Prasad, a resident of Delhi adopted Basant Singh, who was his own sister's son, and that after the death of the former, the latter became the owner of his estate and was still in possession of it. Another instance to which he has referred is that of Rai Parduman Kishun, who-was adopted by his maternal uncle, Ram Dayal, and became the owner of his estate, comprising numerous villages in the Bijnor and Moradabad districts. That instance is also referred to in a Will, executed by Raja Kishun Kumar, a Sarin Khatri, on the 11th May, 1910, wherein he mentioned that his father, Parduman Kishun, had been adopted by his maternal uncle, and that his family appellation (al) was consequently changed from wangi, that is, the appellation of the sub-section to which Baijnath belonged, into khosla that is the appellation of the sub-section to which Ram Dayal belonged. Both khoslas and wangis represent some of the different clans or sub-tribes into which the sarins are subdivided. A reference to that adoption is also to be found in the family history of Raja Kishen Kumar given in the Moradabad Gazetteer. It is there stated that Parduman Kishun was adopted by his maternal uncle, Ram Dayal, and that Ram Dayal was the grandson of Dharam Chand, a Khatri of Nurmahal, near Jullander City, who had settled at Moradabad and acquired wealth as a contractor there (Moradabad Gazetteer, page 89). Another instance referred to by Sheo Dial Singh is that of Rajbahadur, who was adopted by his maternal grandfather, Rai Panna Lal. Sheo Dial admits that these adoptions did not take place in his presence, but he has testified to the family represented by the adopted sons being in possession of the estates of their adoptive fathers; and no serious attempt has been made on behalf of the plaintiffs to controvert the accuracy of his statement either by cross-examination or by the production of other evidence to the contrary. Ramchandra, the siladar of the Sahaspur estate, states that among the Sarin Khatris, a sister's son can be adopted. He mentions that such a custom existed in the Punjab and that among the Sarin Khatris, who have come from the Punjab and settled in these Provinces, the same custom was prevalent. Kali Charan, another Sarin Khatris, gives evidence to the same effect. He deposes that the Sarin Khatris originally came from the Punjab, that the ceremonies observed in the Punjab were also observed by them, and that among other things there was a custom recognizing the adoption of sister's son among them. An instance of an adoption of a daughter's son is afforded by a judgment of the Subordinate Judge of Bareilly dated the 27th June, 1908, in another case. It was there held that there was a custom among the Khatris of the Punjab recognizing the adoption of a daughter's son, and that the Khatri families, who came from the Punjab and settled in these provinces observed the same custom (Exhibit 5). Considering the small number of Sarin Khatris settled in these provinces, it would be difficult to expect a larger number of instances of that character.
11. It is generally recognized that in the Punjab among Khatris of all sub-divisions, the rules of the Hindu Law relating to adoption are not strictly observed and that a custom exists among the Khatris by which the adoption of a daughter's son or sister's son is recognized. In Sohna Mal v. Nanak Chand (1911) 4 P.W.R. 1911, it was held that non-agriculturist Hiadu Khatris did not follow the strict Hindu Law in matters of adoption and that among them the adoption of the sister's son was generally allowed.
12. In Taba v. Shibcharan (1883) 162 P.R. 1883, it was similarly held that there was no special custom among the Khatris of Nurmahal in the Jullundar district contrary to the general custom of Khatris in the Punjab to render invalid the adoption of the only son of a daughter. The same rule was recognized in Nikki v. Gujarmal (1916) 152 P.W.R. 1916.
13. It is argued by the learned Counsel for the appellants that these customs got statutory recognition when the Punjab Laws Act of 1872 was enacted. But before that year enquiries had been made into customs in almost ail the districts of the Punjab; and the general trend of the result, as recorded in the Settlement records, was that the rules of Hindu Law relating to adoption were not strictly in force (Tupper's Punjab Customary Law, Volume III, page 78). The instances proved in this case, and the general evidence of the custom given by the witnesses for the defence, go to show that the same custom is observed by the Sarin Khatris of the Punjab who have come and settled in these provinces. We, therefore, agree with the learned Subordinate Judge in holding that the adoption is valid according to the custom of the tribe to which Ram Sarup and Rajbahadur belonged.
14. The plaintiffs-appellants have taken exception to the inclusion of certain documents in evidence and the exclusion of a sale-deed which was tendered by them in evidence and rejected by the Court below. We have already indicated the documentary evidence which has been proved and can be admitted, and eliminated those which were, in our opinion, not properly proved. In regard to the sale-deed, to which the learned Counsel for the plaintiffs-appellants has referred, we need only point out that the suit was instituted some time in 1918 and first decreed on the 4th September, 1919, and that after the application for review was granted, it was reheard and not decided till the 4th July, 1921. The sale dead in question was produced on the 11th June, 1921 after the evidence for both the parties was closed. The plaintiffs had ample opportunities of producing any evidence on which they wanted to rely at the earlier stages of the hearing, and the Subordinate Judge was right in refusing to accept fresh evidence at that lata stage. The defendants have asked for leave to produce certain' rebutting evidence in case that sale-dead is admitted in evidence, but as we have not admitted that sale-deed in evidence and have upheld the order passed by the Sub-ordinate Judge relating thereto, the application of the defendants will be rejected.
15. The appeal fails and is dismissed with costs including fees in this Court on the higher scale.