1. This is a plaintiff's appeal arising out of a suit for recovery of possession of a house situated at Hardwar which has been acquired by the plaintiff under a sale-deed, dated 27th October 1914, from one Madho Rao. The plaintiff's case is that this house, along with certain jagirs situated in the Gwalior State belonged to one Nil Kanth Rao who died sometime before 1913. His widow, Mt. Anandi Bai, with permission of the Darbar, adopted Madho Rao as her son. It is an admitted fact that at the time when Madho Rao was adopted namely in 1913, he was a married man having several children and his parents were dead. He, therefore, either gave himself in adoption or he was given in adoption by the prohit who performed the ceremonies. Among the contesting defendants was Ganga Prasad who is in actual possession of the house and who denied the validity of the alleged adoption. Defendant No. 5 is Mt. Anandi Bai, who has since this adoption repudiated it and adopted another son. Defendants 1, 2 and 3 are sons of Madho Rao who has since died.
2. The learned Subordinate Judge, after considering the entire evidence in the case, came to the conclusion thai it had not been established that there was a custom under which an orphan like Madho Rao could have been validly adopted. He has accordingly dismissed the suit. The plaintiff comes up in appeal and the question of custom is strongly pressed before us.
3. It may be mentioned at the outset that prior to the institution of the suit the plaintiff had first instituted another suit on the basis of the aforesaid sale-deed for possession of this very house. In the plaint of that suit there was no clear mention as to the way in which Madho Rao had succeeded to the estate of Nil Kanth Rao. It was therefore, felt that the plaint was defective. On 1st June 1916 an application was made for permission to withdraw that suit on account of the flaw with liberty to bring a fresh suit. This permission was granted and the suit withdrawn. It might therefore have been expected that the present plaintiff, before filing his new plaint would take care to formulate the alleged custom which is the basis of his claim. The only paragraph in the present plaint which mentions this custom is paragraph 2 which states that Defendant No. 5 namely Mt. Anandi Bai, 'according to the practice in the Gwalior State and with the permission of the said State' adopted Madho Rao, and by virtue of which he became the owner of and entitled to the estate of Nil Kanth Rao. This statement amounts to an assertion that there is a territorial custom prevailing in the Gwalior State not necessarily confined to any particular family and that in addition thereto the permission of the Darbar has some efficacy. The issue which was framed by the trial Court on this question was Issue No. 2 which ran as follows:
What is the custom or law of adoption obtainable in Gwalior State
4. It is, therefore, obvious that no special family custom governing the particular family of Nil Kanth Rao was put forward but a general custom prevailing in the Gwalior State was asserted. Nil Kanth Rao was an old resident of Vengrula in Ratnagiri district in the Bombay Presidency. His ancestors had migrated to Gwalior about 100 years ago and were granted some jagirs by the Darbar. They also acquired some property in British India.
5. On the death of Nil Kanth Rao, his widow undoubtedly applied to the Darbar for permission to adopt Madho Rao. In her application she clearly stated that Shankar Rao ( which was the former name of Madho Rao ) was 40 years old and was literate, and he had little boys. There was, however, no express mention that Shanker Rao was an orphan and his parents were dead, and that this adoption would take place in the old Svayam Datt form. The permission was duly granted to her and there can be no doubt that she did in fact adopt Shankar Rao who was given the name of Madho Rao after his adoption in 1913. The Jagir of Nil Kanth Rao devolved on Madho Rao and he was recognized by the Gwalior Darbar as his rightful successor at a subsequent stage. Mt. Anandi Bai subsequently appears to have changed her mind and repudiated this adoption as stated above. She adopted another son in his stead. In spite of the objection raised by Mt. Anandi Bai for herself and as guardian of this second adopted boy, Madho Rao was able to obtain a succession certificate from the High Court in Gwalior in the year 1915. It is, therefore, quite clear that so far as the Gwalior State is concerned, his adoption was duly recognized and acted upon by the Darbar. It is also an undoubted fact that Madho Rao got the jagir in the Gwalior State. In 1917 Madho Rao brought a suit against Mt. Anandi Bai in the High Court of Bombay on the allegation that he was the adopted son of Nil Kanth Rao and was entitled to all his assets, and that his widow, Mt. Anandi Bai, had removed a box containing valuable ornaments from Gwalior. This suit was tried in the Bombay High Court. We are not at present concerned with the reasoning adopted in the judgment. It is sufficient to state that the learned Judge of the High Court came to the conclusion that the custom alleged by Madho Rao should not be accepted. This judgment was affirmed in appeal.
6. There can be no doubt that the family of Nil Kanth Rao, when it resided in the Bombay Presidency, was governed by the Mitakshara Law as modified by the Mayukha Law. Under the law there can be no question that an orphan, i.e. one whose parents are not able to give him away in adoption, cannot be validly adopted. That this is the well recognized Mitakshara Law admits of no doubt. We may refer to a case recently decided by the Privy Council, Dhanraj Joharmal v, Soni Bai . At the same time it cannot also be doubted that if a custom is proved under which such adoptions do take place they would have to be held to be valid. A case in point is the case of Ram Kishor v. Jainarayan A.I.R. 1922 P.C. 2 where the adoption of an orphan was held valid under a custom by their Lordships of the Privy Council. Every case, therefore, must depend on its own circumstances and evidence.
7. The burden lies on the plaintiff heavily to prove a special and unusual custom set up by him. We have, therefore, examined the evidence which is relied upon in support of that custom. (His Lordship then examined the evidence and while discussing the rules of Gwalior State according to which permission to adopt was granted by the Darbar in the State continued.) Under these circumstances we are of opinion that the rules which are contained in the Tawarikh Jagirdaran are the rules laid down by the Darbar for regulating the succession to jagirs. They in no way embody the record of any particular custom which prevails in Gwalior generally. Those rules are restricted to the jagirs and are not applicable to the people in Gwalior in general. When these rules were in force, it is not surprising that the father of Wasdeo Maharaj was accepted as the adopted son although his parents were dead at the time of his adoption. He was a jagirdar and succeeded to the jagir in the Gwalior State. That instance, therefore, is by no means conclusive as to the existence of a general custom prevailing in Gwalior. Every instance of a married man having been adopted is not really an instance of the alleged general custom, for we have not only to see whether the fact that Madho Rao was a married man was an impediment in the way of his valid adoption, but we have also to see whether in the absence of any proper person to give him in adoption he could have been adopted. Many of the witnesses who stated generally that a custom of adoption of orphans prevailed had to admit in cross-examination that whatever they stated about the adoption of an orphan and married persons was concerned with the jagirs only. We may refer to the evidence of Baji Rao Kante, Sardar Nana Sahib and Munshi Aulad Muhammad Khan.
8. In our opinion there is no inconsistency in the succession of Madho Rao to the jagir being recognized by the Gwalior Darbar and his not being a validly adopted son regarding other properties the devolution of which does not depend on the State's sanction. One might quote the analogy of the Oudh Estates Act under which taluqdari estates would devolve according to the rule of succession and adoption laid down by that Act, whereas succession to the non-taluqdari estates may be governed by the personal law of the deceased.
9. We, therefore, agree with the view of the Court below that there is no satisfactory evidence before us to show that a custom by which an orphan can be adopted exists among the common residents of Gwalior as was alleged in paragraph 2 of the plaint. No special custom of the family has been set up or proved. It is undoubtedly the law that when a person migrates from one country to another, there is a presumption that he carries with him his personal law and unless there is something to show that he has adopted the law of his new domicile, he must be deemed to be still governed by the old law. No previous act in the history of the family is forthcoming to show that it gave up the Mitakshara Law under which it was governed in Ratnagiri and adopted any special law prevailing in Gwalior. The mere fact that the family accepted the jagir from the Darbar would not of itself be sufficient to show that the personal law was necessarily changed. Having regard to all these circumstances we are of opinion that it is impossible to interfere with the finding or decree of the Court below.
10. The appeal is accordingly dismissed with costs.