Amar Singh, J.
1. The resp. brought a suit for a declaration that he was the adopted son of one Motilal Mahajan of Bijoliyan & for an injunction that the applt. & Mt. Motiya Bai be restrained from wasting the property of Motilal. He alleged in his plaint that Motilal called him from his village Dhangao in Asoj St. 1995, & kept him as an adopted son & that after Motilal death he performed all the rites & ceremonies relating to his (Motilal) death. The defts. denied the factum as well as the validity of the alleged adoption. The learned munsif Bijoliyan who filed the case came to the conclusion that the adoption was in fact made & it was valid according to the custom prevailing among the Jains to which religion Motilal & the parties belonged. He consequently decreed the suit against both the defts. On appeal the learned Dist. J., Bhilwara modified the decree in that he disallowed the relief for injunction & refused declaration as against Mt. Motiya Bai. So fat as the applt. is concerned, the decree for declaration was confirmed. Against the decree of the learned appellate Ct. the deft. Gulab Bai has coma in appeal to this Ct.
2. The points raised on behalf of the applt. against the judgment of the appellate Ct. are that the pltf. has not alleged in his plaint that the adoption was in fact made by Motilal & there is also no evidence to this effect, & that it has neither been alleged nor proved what ceremonies were necessary to validate the adoption & that they were performed. On behalf of the resp. it has been urged in the first instance that the finding of the lower appellate Ct. about adoption is a finding of fact & cannot be disturbed in S. A. It has also been contended that the parties are Jains & therefore no particular ceremonies were necessary to validate the adoption. Reliance was placed on Sections 617 & 624 Mulla's Hindu Law, Edn, 10. the following rulings were also cited : (a) Moroti v. Radha Bai, A. I. R. (32) 1945 Nag 60 : (I. L. R. (1944) Nag. 796) (b) Ram Kishore v. Jai Narayan, A. I. R. (9) 1922 P. O. 2 : (48 I. A. 405 P. C.) (c) Pannalal v. Chiman, A. I. R. (34) 1947 Lah. 54 : (225 I. C. 8) (d) Subramaniam Chettiar v. Soma Sundaram, A.I.R. -23 1936 Mad. 642 : 59 Mad. 1064 (e) Chimanlal v. Hari Chand, 40 Cal. 879 : (40 I. A. 157 P.C) (f) Parshottam v. Veni Chand, 45 Bom. 754 : (A. I. R. (8) 1921 Bom. 147) (g) Biradh Mal v. Prabhavati, A.I.R. (26) 1939 P C. 152: (I. L. R. (1939) Kar. 258) (h) Dhanraj v. Soni Bai, A.I.R. (12) 1925 P. O. 118 : (52 Cal. 482).
3. We have considered the arguments of both the parties. The finding whether the pltf.-resp. was adopted by Motilal is certainly a finding of fact but the question whether the facts found make out a valid adoption is a question of law & can be gone into S. A, There can be no doubt that the parties are Jains, but the rulings that have been cited on behalf of the pltf.-resp. do not apply to the facts of the present case. The ruling reported in Maroti v. Radhabai, A. I. R. (32) 1945 Nag. 60 : (I. L. R. (1944) Nag. 96 deals with the case of Shudras & cannot therefore serve as an authority in the case of Jains. The ruling reported in Ramkishore v. Jai Narayan, 48 I. A. 405 : (A.I.R. (9) 1922 P. C. 2) also has no application to the case of Jains. Their Lordships had to consider whether the custom of adoption of an orphan obtained among the Dhusar community, Gurgaon District in the Punjab which has no relevancy in the present case. The ruling reported in Pannalal v. Chiman, A.I.R (34) 1947 Lah. 54: (225 I.C. 8) deals with the case of Agarwalas of Ambala District in the Punjab & there is no mention in it that the parties were Jains. That ruling too, therefore, does not apply to the facts of the present case. The ruling reported in Subramaniam v. Soma Sundaram, 59 Mad. 1064; (A.I. R. (23) 1936 Mad. 642) also deals with the custom of adoption of an orphan among the Nattu Kottai Chettis & is, therefore, beside the point.
4. In Chimanlal v. Hari Chand, 40 Cal. 879 (40 I. A. 157 P. C.) their Lordships of the P. C. ruled that among the Agrawals of Zira in the Punjab an orphan & a married wan can be yalidly adopted according to a custom prevalent among them. The parties to this suit are neither proved to be Agrawals nor to have originated from the Punjab. In the Punjab customary laws play a very important part & override general law wherever the later is in conflict with the former. The Punjab ruling quoted above, therefore, cannot have any application to the present case. It is significant that in the ruling just refd. to, their Lordships were cautious enough to say that owing to the limited nature of the evidence as to custom among the Agrawal Baniyas of Zira in that case, it would not be a satisfactory precedent if in any future instance other parties' further evidence regarding the alleged custom of the Agrawal Baniyas of Zira should be forthcoming.
5. In Parhsottam v. Venichand, 45 Bom 754 : (A.I.R. (8) 1921 Bom 147) their Lordships of Bombay H. C. held that as between the parties to the suit it was proved that the evidence adduced as to the custom of an orphan was sufficient. But it was observed that in view of the limited nature of the evidence adduced in the case it could not be held that the custom of adopting an orphan among Jains in Western India was established as a valid custom. It is, therefore, obvious that this ruling cannot serve as authority in the present case.
6. In the ruling reported in Biraahmal v. Prabhavati, A. I. R. (26) 1939 P. C. 152 : (I. L. R. (1939) Kar. 258) it was held by their Lordships on the admission of the parties that among the Oswal Jains adoption cannot be upheld without proof of giving & taking of the boy. The presence of the boy to be adopted & his father appears to have been considered necessary at the time of the giving & taking, although the acknowledgment of the execution of the deed of adoption before the Sub-Registrar by the fathar of the adoptee & his adoptive mother in his presence was considered to be sufficient proof of giving & taking. In the present case no such acknowledgment by the father of the pltf. & his adoptive father or mother in his presence is proved. The only thing proved is that the boy was called from his village & the adoptive father put his hand over his head. It is conceded that the natural father was even present at that time, to say nothing of his acknowledging the adoption. The ruling, therefore, does not apply to the facts of the present case & does not help the pltf. The ruling reported in Dhanraj v. Sonibai, A. I. R. (12) 1925 P.C. 118 : (52 Cal. 482) deals with the case of Agarwal Jains but it has neither been alleged nor proved that the parties to this suit are Agarwal Jains.
7. There is no general law relating to the ceremonies necessary for a valid adoption among the Jains of all types found in India. The utmost that can be concluded from the rulings bearing upon the question of adoption among certain sects of Jains is that adoption among them is a temporal arrangement & not a religious ceremony & is based upon custom. But there is no authority showing that there is any general custom regarding the ceremonies requisite for a valid adoption among all kinds of Jains inhabiting this country.
8. It is clear from the argument of the learned counsel for the resp that he relies upon a certain custom in the matter of adoption among the parties to this suit. It is incumbent upon a party relying upon a custom to allege that custom in unambiguous terms in his pleading & prove it. In the present case the pltf. has not alleged any custom in the plaint. All that he has done is to prove that the pltf. was called from his village by Motilal who put his hand upon the pltf.'s head & thereafter the pltf. lived with Motilal, & aftar his death performed rites & ceremonies connected with Motilal's death. If only these ceremonies were enough to validate the adoption, the pltf. ought to have alleged & proved it. To say that certain acts were performed does not by itself show that they were the acts which were necessary for a valid adoption. The pltf. ought to have brought out in his evidence in the first instance as what ceremonies were necessary for adoption among the sect to which he belonged & further he should have proved that those ceremonies were performed. Their Lordshipe of the P. C. in the ruling reported in Chhoteylal v. Chunnoolal, 4 Cal. 744 : (6 I. A. 15 P. C.) laid down that in the absence of proof of special custom varying the ordinary Hindu law, that law is to be applied to Jains & that when the customs of the Jains are set up they must be proved like other customs varying the ordinary law, & that, when so proved effect should be given to them.
9. Again in Mt. Bulaqan v. Ratan Lal, A.I.R. (15) 1928 ALL. 656 : (110 I. C. 516). It was held by a D. B. of Allahabad H. C. that unless a special custom is pleaded & proved, the ordinary Hindu law governs succession amongst the Jains. It cannot be assumed that they do possess peculiar custom of inheritance with reference to the property which devolves upon a Jain widow from her husband & reported decisions cannot supply the place of evidence & any fact relating to custom has got to be proved by the production of evidence bearing upon the question sought to be proved. In the present case far from proving, the pltf.. has not even alleged any custom with regard to adoption in his community. It has been argued with reference to the ruling of Nagpur H. C. quoted above that it is not necessary to allege in the plaint as to what ceremonies required by Hindu law ware performed at the time of adoption & that it is sufficient to allege that the adoption was made according to Law. It is true that it is not necessary to allege in the plaint what ceremonies were performed if a party relies on Hindu law as every body is presumed to know law. But when a party relies upon a custom it is necessary that it should be alleged as the presumption which can be made with regard to law cannot be made with regard to custom. A party who relies upon custom ought to plead it clearly in his plaint so that the opposite party may know his case & may have opportunity to meet it.
10. Reliance was placed upon a certain deposition of Motiya Bai & Gulab Bai. But as the learned appellate Judge has held, they were not proved. Before a statement can be read in evidence, it is necessary to establish the identity of the deponent which hag not been done. Moreover the statements do not throw any light on the question what ceremonies are necessary for a valid adoption among the community to which the parties belong The evidence for the pltf. shows that he wag adopted both by Motilal & his brother's wife Motiya Bai. Such a joint adoption is invalid under the Hindu law. The pltf. has not proved that there is any custom among the Jains validating such an adoption. The adoption is, therefore, invalid on this account too.
11. We feel that the pltf. has failed to prove what ceremonies according to the custom prevailing among his sect were necessary for a valid adoption & that such ceremonies were performed. We further find that the adoption is invalid also because according, to the pltf.'s evidence it was a joint adoption. Under the circumstances the decree of the lower Ct. cannot be sustained. The appeal is allowed, the decree of the lower Ct. is set aside & the is dismissed. Under the special circumstances of the case the parties to this appeal shall bear their costs throughout.