1. The general rule of Hindu Law is against the validity of the adoption in this case Minakshi v. Ramanada Ind. Dec. 35, but this rule may be varied by custom, and such a custom has been held to obtain in the southern districts of the Madras Presidency Vayidinada v. Appu 6 M. 44 (F.B.); Appayya Bhattar v. Vengu Bhattar 15M.L.J. 211. The lower Appellate Court has not found upon the evidence whether such a custom exists in the caste, of plaintiff and defendant or in South Kanara, which does not form part of the southern districts. The appellant is responsible for all the costs of this litigation, and we direct him to pay all costs incurred up to this day before the 15th September 1919. Upon payment of the costs before that day, we direct the District Judge to record a finding upon the following issue:
2. Is the adoption in this case valid according to the customs observed by the parties?
3. No additional evidence will be taken. In default of payment the appeal will stand dismissed with costs.
4. The finding is to be returned before the 15th of October 1919, and seven days will be allowed for filing objections.
5. In compliance with the order contained in the above judgment the District Judge of South Kanara submitted the following
6. In this case, I am asked to submit a finding on the evidence on record on the following point:
Is the adoption in this case valid according to the customs observed by the parties?
2. Before considering the evidence, which is meagre, in this case I think that it is necessary to refer to the circumstances under which the evidence was adduced.
7. The issue framed by the Munsif is worded thus: whether the defendant has not been truly and validly adopted by the plaintiff? Thus, it is seen that the burden of proof is thrown on plaintiff and, therefore, the defendant must have thought that if there is not mush evidence on plaintiff's aide he need not adduce much evidence.
8. The adoption, deed is a registered, document which contains a special reference to the custom, It is a deed executed by plaintiff himself and, when he himself admits the custom in the registered document, it is strong evidence against him and, unless he proves that he made the statement under a mistake or other justifying circumstance, it may very well be presumed that it is a correct statement of facts. In this case it is not shown that there is any justifying circumstance. Therefore,;Exhibit A affords a strong piece of evidence against plaintiff.
3. Apparently, therefore, it is for plaintiff to shift the burden on defendant but he has not succeeded in doing so. P.W. No. 1 is plaintiff himself and he is interested. Further, he contradicts Exhibit A. The next witness is P.W. No. 2 who is the natural father of defendant. His evidence has been disbelieved by all the Courts in this case on other points. So, he cannot be relied on this point also. Further, it must be remarked that he is also a party to Exhibit A as an attestor. He was the person who gave away defendant in adoption and it was then that Exhibit A was executed and the attestation of this witness taken, and so he may be presumed to have known the contents of Exhibit A when he attested it. So, his present evidence must be received with very great caution.
9. It is argued that he gives evidence against his own interest, but I am not certain of that, because we do not know whether he admits the existence of any ancestral property in his hands. Probably, he may say that the properties in his hands are all his self-acquisitions and that his sons have no right to claim them as a matter of right.
10. Defendant's mother died and afterwards P.W. No. 2 married a second wife and has children by her and he does not care for defendant at all after the death of his (defendant's) mother.
4. Another fact to be considered in weighing the evidence in this case is the impression which the parties and the Munsif were under when the trial of the case began. They were apparently under the impression that the decision in Vayidinada v. Appu 3 Ind. Dec. 427 applied. The accounts for the paucity of evidence on this point on both sides. Until the High Court pointed out that the decision applied to southern districts and not to western districts, no body concerned with this case seems to have thought that there is that way of distinguishing the case.
11. With the above remark, I must examine the evidence. The burden of proof of the issue sent out is on defendant.
5. There is only the evidence of D.W. No. 3 on the point and he is no doubt interested, but the question is, whether he cannot be believed under the circumstances of the case.
6. In the usual course, I have no doubt that this evidence will be considered not sufficient to prove a custom, but, under the peculiar circumstances, I am inclined to consider the evidence true and sufficient. There is Exhibit A which is executed by plaintiff (P.W. No 1) and attested by P.W. No. 2 and P.W. No. 3 (purohit) in which the custom is mentioned.
12. D.W. NO. 2 does not help us much because he does not know any instance of the custom. Here, it must be mentioned that, though this witness was asked in cross-examination whether he knew of any instance, D, W. No. 3 was not asked that question. Apparently the cross examining Vakil avoided the question because he knew that the witness would be able to give instances. Otherwise, he would not have left out that question which he put specially to the previous witness.
13. Taking the circumstances into consideration, I must find that the custom is proved.
7. Seeing that the custom is prevalent in southern districts it is probable that it is prevalent here also. The defence Vakil quoted the foot notes to Minakshi v. Ramanadi Ind. Dec. 35, in the reprints of Indian Law Reports by Subramaniam and Krishnaswami, to show that the Bombay High Court has decided that the custom prevails in Gowd Sareswat Brahmins of South Kanara, but the book referred to therein is not here and I am, therefore, unable to say whether it was so decided or not.
14. On the whole, I find that the adoption is valid according to the custom observed by the parties.
15. This second appeal came on for final hearing, after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial.
16. Messrs. S. Srinivasa Ayangar, K.P. Madhava Rao and K.P. Lakshmana Rao, for the Appellants: The adoption of a brother's daughter's son is, under the text of Hindu Law, invalid. The texts forbidding adoption where the mother cannot be warned by the adopter apply. There is no custom amongst the Kshatriyas favouring such adoptions. The fact that such a custom prevails among the Gowd Saraswat Brahmins of the place does not warrant its extension to the Kshatriyas who have migrated from the north. The oral evidence adduced by defendants is far too scanty to deduce a custom having the force of law.
17. Messrs. K. Sadasiwa Rao and K. Sundara Rao, for the Respondent.--There is proof of the existence of the custom among the Kshatyrias of South Kanara. The plaintiff admits that the usages of the Kshatriyas are not different from those of the Gowd Saraswats among whom the usage prevails. Even the adoption of a sister's son is valid among them. See Vayidinada v. Appu 6 M. 44 (F.B.) ; Maniunath v. Kaveribai 4 Bom. L.R. 140 .
18. Again, the plaintiff has admitted the adoption in Exhibit A. That means he does not dispute its validity also.
19. We think that the plaintiff's admission in Exhibit A was an admission both of the fact and of the validity of the defendant's adoption See Ramalinga Pillai v. Sadasiva Pillai 9 M.I.A. 506, The burden of proving that it was not valid was, therefore, shifted on to the plaintiff's shoulders. Even if it is not so, the custom against the supposed rule based on the text relating to the reflection of a son is so widespread that very little evidence will turn the scale against that rule. The plaintiff admitted in his evidence that the usages of his community did not differ from those of the Gowd Saraswat Brahmins. He being a Kshatriya (presumably not very pure in extraction, clans of pure Kshatriyas being very rare), the customs of his community could not be more strict than those of Saraswat Brahmins. In Manjunath v. Kaveribai 4 Bom. L.R. 140 it was held that the custom among Gowd Saraswat Brahmins of Kanara (both north and south which were situated near the Dravida country) allowed the adoption of a sister's son [see, as regards Dravida custom Vayidinada v. Appu 6 M. 44 (F.B.). The case of a brother's daughter's son (against whose adoption there is no direct text, as in the case of daughter's son, sister's son and mother's sister's son) stands on a more favourable footing. The community of the parties to the suit migrated from Rajputana and have settled in South Kanara for long. The law which they brought with them did not evidently prohibit the adoption of a brother's daughter's son See Madhu Sudan Sinha Biswanath v. Kali Charan 27 C.L.J. 119 and Yamnava Govind Appaji v. Laxuman Bhimrao 14 Bom. L.R. 543.
20. Though the oral evidence on defendant's side in this case is meagre, we think that that evidence, being corroborated by the probabilities by the decision in Manjunath v. Kaverbai 4 Bom. L.R. 140, and by the admission of the plaintiff as to the customs and usages of his community not differing rom those of Saraswat Brahmins, can be treated as sufficient under the circumstances to establish the custom which allows the adoption of a brother's daughter's son.
21. In the result, we accept the finding and dismiss the second appeal with costs.