P.C. Mallick, J.
1. This is a suit for a declaration that plaintiff is the adopted son of one Ramprotap Udhani and as such entitled to his estate. There is also the prayers for possession, for injunction, damages and accounts. The defendants impleaded are, Dhapu Debia daughter of Ramprotap and her husband Chandanmul Jajodia. The allegations made are that Munia Debi. widow of Ramprotap, on 25-9-1950 adopted the plaintiff as a son of Ramprotap. It is alleged that Munia Debi had authority to adopt though it is not stated when such authority was given and whether it was oral or in writing. The. plaintiff is the grandson of Ramprotap by his daughter Rukmini Debi. Rukmini died in December 1949 prior to the adoption. It is pleaded that 'according to the custom and practice prevailing amongst the Agarwal Community to which the parties belong, a daughter's son can be validly given and taken in adoption.' Munia Debi, Ramprotap's widow died on 5-3-1956. On Ramprotap's death, Munia along with her son Ghasiram became entitled to the estate of Romprotap in equal share in 1940. On the death of Ghasiram in 1943, Munia inherited Ghasiram's estate as well and till her death Munia was in control and management of the entire estate. It is alleged that Munia had no stridhan property. After Munia's death the defendants are alleged to have wrongfully taken possession of the estate of Ramnrotan and Gbasirami, to have surreptitiously removed the moveables including Ornaments, jewelleries and utensils, have realised and are still realising the rents of the immovable properties in denial of the plaintiff's title as the adopted son of Ramprotap. As part of theestate left by Ramprotap is situate outside the jurisdiction of this Court, leave under Clause 12 of the Letters Patent has been obtained. Ramprotap had another daughter Sm. Ganapaty Saraogi by a predeceased wife. At the time of death of Munia, Ramprotap had no son living, but two daughters, namely, the defendant and the said Ganapati Saraogi. The only other daughter, namely. Rukmini, the mother of the plaintiff died in November 1949 prior to the death of Munia Debi. On the application of Ganapati this Court by an order dated 20-3-1957, directed that Ganapati be added as a defendant and the plaint amended accordingly. Subsequently on the plaintiffs application the plaint was further amended by an order dated 2-2-1959. The object of the last amendment is to challenge the deed of trust executed by Munia Debi inter alia in favour of her daughter Dhapu in respect to a very valuable immovable property of the estate being premises Nos. 1 and 2, Tagabandhu Bural Lane purchased on 15-5-1928. The property appears to have been purchased by Munia Debi and the conveyance is in her name. Allegations are introduced in the plaint by the subsequent amendment that the said property was purchased by Rampratap in the benami of his wife Munia and that the defendant Munia had no title of her own to create the trust in favour of her daughter Dhapu. It is to be noted that though the suit was instituted originally after obtaining leave under Clause 12 of the Letters Patent, no further leave under Clause 12 was obtained for either of the amendments effected.
2. In due course Dhapu and Chandanmull filed a written statement jointly. Leave was given to them to file additional written statements after the amendments. The defendant Ganapati filed her own written statement after being added as a party. There are altogether four written statements on record-- three by the two original defendants Dhapu and Chandanmull and one of Ganapati.
3. In their written statements, the defendants Dhapu and Chandanmull denied that Munia had any authority to adopt, that there was any custom to give and take a daughter's son in adoption, or that there was in fact an adoption. All allegations of wrongful conduct made against them have been denied. It is contended that Dhapu had inherited the estate of Rampratao as his heir at law after the death of Munia. Benami is denied and it is alleged that the premises Nos. 1 and 2, Jagabandhu Bural Lane was the property of Munia purchased with ber stridhan money and as such she was competent in law to create the trust in favour of Dhapu. It is further pleaded in the additional written, statement that even if the property was purchased by Rampratap with his own money in 1928, he by his act and conduct led the defendant Dhapu to believe that the property belonged to Munia having been purchased with her stridhan money and that the defendant Dhapu acted upon the said belief. In consequence Rampratap and his successors in interest are estopped from denying that the property was purchased with Munia's own money. A further case is made that in any event Munia acquired title to the said property by adverse possession. It is pleaded that the suit is not maintainable, is bad for non-joinder of necessary parties and is barred by limitation and that! this Court has no jurisdiction to entertain this suit.
4. Ganapati in her written statement also denied that Munia had any authority to adopt or that she could or in fact did adopt the plaintiff. She contended that as the heir of Rampratap she is entitled to one quarter of the estate on this basis that on Rampratap's death Munia inherited half the estate, the remaining half having been inherit-ed by Ghasiram and that on the death of Munia, Ganapati along with Dhapu as the two heirs of Rampratap inherited equally to the estate of Rampratap. In the result, she is entitled to a quarter of the estate and the remaining three quarters belong to Dhapu as the heir of Rampratap one quarter and as the heir of Munia half inherited from Ghasiram. Ganapati denied that the premises Nos. 1 and 2, Jagabandhu Bural Lane belonged to Dhapu or that the same was purchased with the stridhan money of Munia.
5. On these pleadings the following issues were settled:
1. (a) Did Munia Debi have authority from her husband to adopt the plaintiff as a son unto her husband?
(b) Did Munia Debi adopt the plaintiff as a son unto her husband on 25-9-1950 ?
(c) Is there any custom and practice prevailing amongst the Agarwal Community to which the parties belong that a daughter's son can be validly given and taken in adoption ?
(d) Was the plaintiff's adoption, if any, valid ?
2. Were premises Nos. 1 and 2, Jagabandhu Bural Lane purchased by Rampratap Udbani out of his own money and in the benami name of Munia Debi?
3. (a) Is the Deed of Trust dated 29-7-1949 in respect of premises Nos. 1 and 2 Jagabandhu Bural Lane void for uncertainty ?
(b) Does the said deed amount to a gift of the said premises ?
(c) Has not the said deed been acted upon or give effect to?
4. Did the defendant No, 2 take possession of the assets and properties of Ghasiram Udhani or Rampratap Udhani ?
5. Has this Court jurisdiction to try this suit?
6. Is the suit maintainable ?
7. Is the suit barred by limitation ?
8. To what relief, if any, is the plaintiff entitled
6. At the trial a number of witnesses have been examined, some of the witnesses having been examined de bene esse prior to the trial. A number of documents have been tendered. The case has been argued with thoroughness by the learned counsel for all the parties' and I record my appreciation of the assistance rendered by the Bar in this case.
7. It is convenient at this stage to consider a point of law raised by Mr. Dev on behalf of the defence which, if upheld, must lead to the dismissal of the suit. The point of law raised is that this Court has no jurisdiction to give any relief to the plaintiff in this suit. The suit was originally instituted against two defendants, namely, the defendant Dhapu and her husband Chandanmull. Relief claimed is that the plaintiff is the adopted son of Rampratap and as such entitled to his entire estate and possession thereof. Leave under Clause 12 of the Letters Patent was obtained on the averment that part of the estate left in respect to which relief is sought is situate outside the jurisdiction of this Court, Mr Dev's contention is that the suit as originally instituted was bad for non-joinder of Ganapati, another daughter of Rampratap, who along with Dhapu inherited to the estate if the plaintiff is not the adopted son of Rampratap. Ganapaty was a necessary party in a suit for declaration of plaintiff's title to the estate of Rampratap. His alternate submission is that the suit really is a declaration of the plaintiffs status as the adopted son of Rampratap. The other reliefs in this suit are consequential dependent on the establishment of the plaintiff's status as the adopted son. There are averments in the plaint to the effect that the plaintiff's title has been denied by the defendants and the defendants Dhapu arid Chandanmull are dealing with the estate situate at Calcutta in denial of the plaintiff's title. A part of the cause of action to institute this suit, therefore, arose within the jurisdiction of this Court, and in order to give jurisdiction to the Court to try this suit leave under Clause 12 would be necessary. Leave though asked for and obtained however is not on that basis. The plaintiff has proceeded on the basis that it is a suit forland and inasmuch as part of the land is situate outside jurisdiction leave under Clause 12 has been obtained. Whichever, way the plaint is read, Ganapati is a necessary party and in the absence of Ganapati no relief could be granted to the plaintiff in this suit as originally framed, Ganapati was however added as a party on her own application by an order dated 20-3-1957. No leave was obtained under Clause 12 by the plaintiff after this amendment. It is contended that this leave is imperative in law to enable this Court to entertain this suit and grant a decree against Ganapati. If no decree can be granted against Ganapati even though she is added as a party to the suit, the original defect of the suit remains. The suit was further amended at the instance of the plaintiff to challenge the deed of settlement effected by Munia in respect to premises Nos. 1 and 2, Jagabandhu Boral Lane. For this amendment also leave under Clause 12 was imperative in law. No leave to amend however was obtained by the plaintiff. In the absence of such leave the suit as amended cannot be entertained by this Court.
8. The point for consideration is whether the plaintiff should have obtained leave under Clause 12. of the Letters Patent when either of the amendments were effected. I propose to consider the two amendments separately inasmuch as the firsh amendment was effected not at the instance of the plaintiff but by a stranger to be added as a party while the second amendment was effected at the plaintiffs instance. Mr. Dev contends that when a new party is added as a defendant it is a new suit as against this defendant and fresh leave is imperative to give jurisdiction to this Court, if part of the land is situate outside jurisdiction in case the suit is one for land or if part of the cause of action arose outside jurisdiction if the suit is not for land. In support of this argument Mr. Dev strongly relies on the decision of the Appeal Court in the case of Benoy Sankar Dhandhgnia v. ChoteyLal Dhandhania, 84 Cal LJ 200. There was a partition suit instituted by Hiralal Dhandhania and his three infant sons against Chotelal and his infant son and one Bhagabati Prosad., Bhagabati Prosad contended in his written statement that he along with his two infant sons ware entitled to one-third of the half share in the joint estate and claimed separate allotment and possession. The suit was settled in terms of a settlement filed in Court, and a decree was passed in terms of settlement. Benoy, Bejoy and Bimal the sons of Bhagabati Prosad were added parties and Bhagabati was appointed their guardian. Bhagabati Prosad was paid a certain sum of money and was declared along with others to have no share in the four valuable properties allotted to Chroteylal andTulsiprosad which last two were entitled to get owelty from certain defendants. Bhagabati Prosad acted as the next friend and guardian of the minor sons. Usual leave was given to the next friend and guardian to settle the suit on terms filed and the settlement was certified to be for the benefit of the minors. Subsequently a suit was filed by Benoy, Bejoy and Bimal inter alia for a declaration that the consent decree was void and that it be see aside so that the suit may be reheard. The ground on which the consent decree was sought to be set aside is that no leave under Clause 12 having been obtained when Benoy, Bejoy and Bimal were added as defendants, the consent decree was without jurisdiction and void. Das J. who heard the suit held that as Bhagabati was the father and karta of his branch of the family, though not so described, Benoy, Bejoy and Bimal were 'dormantly as it were parties to the suit. Therefore, bringing mem on the record did not amount to addition of new parties but only clarified the position by making explicit what was implicit.' In this view of the matter His Lordship held that no party was added and no leave was necessary. The appeal Court took a different view and held that it was a case of addition of new parties and by the amendment the scope of the suit was enlarged, and reliefs which, could not be given in the suit as originally framed could be given after the amendment. In that view of the matter the Appeal Court held that leave was imperative and in the absence of such leave the Court had no jurisdiction to pass a decree against Benoy. Bejoy and Bimal. This is a decision of the Appeal Court in which the point was directly raised for decision and as such a compelling decision on me. It is a clear authority for the proposition that when a new party is added, fresh leave under Clause 12 must be obtained, and the leave originally obtained would not suffice.
9. Mr. I.P. Mukharji, learned counsel for the plaintiff has cited the case of Kissory Mohun v. Kali Churn, ILR 24 Cal 190 in which Sale J. held that the restrictive words of Clause 12 of the Letters Patent apply to the case of plaintiff but that there is no similar restraining provision applicable to a case where the person seeking the exercise of the Court's jurisdiction is the defendant. In this case a Calcutta property was mortgaged twice. The second mortgage was with respect to the Calcutta property along with a property outside jurisdiction. In the mortgage suit instituted by the first mortgagee in respect to the Calcutta property the second mortgagee was impleaded as a defendant. There was the usual decree that the Calcutta property be sold. Pursuant to that decree the property was sold. The sale-proceeds of the Calcutta property after fully satisfying the claim of the first mortgagee, satisfied partly the claim of the second mortgagee as well. The second mortgagee thereupon applied for the sale of the other outside property under the liberty reserved by the decree for the balance of his claim. The question was whether he could do so without obtaining leave under, Clause 12 of the Charter. Sale, J. took the view that the words in Clause 12 of the Letters Patent restrictive of the exercise by the Court of its jurisdiction must be construed strictly. The restrictive words being only applicable to the plaintiff and there being no similar restrictive provision applicable to a person seeking the exercise of the Court's jurisdiction who is the defendant, no leave was necessary. The point raised in the instant case is different and the case is clearly distinguishable. We are not called upon in this case to consider whether the added defendant Ganapati is entitled to any relief in the plaintiffs suit. The decision of the Bombay High Court in the case of Foolibai v Rampratab, ILR 17 Bom 466 has also been cited by Mr. I.P. Mukharji in support of the proposition that Ganapati alone, the added defendant, is entitled to take the objection and the objection is not open to any other party. The original defendants, therefore, are not entitled to take the point that this Court has no jurisdiction by reason of the fact thatno leave was obtained when Ganapati was added as a party by the order of this Court on her own application and the plaint amended accordingly. If cannot however be contended that the point as to jurisdiction, has not been taken by Ganapati. It is true that Mr. Dev the learned counsel for Dhapti and Chandanmull argued the point and not Mr. Ghosh, the learned counsel for Ganapati. Mr. Ghosh however while arguing the case made it clear that though he is addressing his argument not on all issues raised in the case, he is doing so to avoid repetition. He expressly stated that on the issues on which he did not address any argument he would adopt the arguments to be addressed by Mr. Dev the learned counsel appearing for defendants Nos. 1 and 2. In that view of the matter this argument of Mr. Mukharji loses its force and the authority cited appears to have no application. Since, however, the case has been cited and strongly relied on by Mr. Mukharji, it is proper that I should deal with the Bombay case cited by Mr. Mukharji. In the Bombay case cited in answer to the plaintiff's claim against a firm, the defendant Foolibai pleaded that she was not the owner of the firm and that it belonged to her son's daughter Goolibai. Plaintiff thereupon made an application for adding Goolibai a party defendant and the order was made adding Goolibai a party. Agaimst this order adding Goolibai a party an appeal was taken by Foolibai on the ground that the effect of adding Goolibai as a party was the institution of a new suit without obtaining the necessary leave under Clause 12 of the Letters Patent. The Court held that the only party competent to appeal against the order adding her a party is Goolibai and not the original defendant Foolibai. Goolibai would be entitled to take the point at the proper time and may be at the trial the suit might be dismissed on that ground as against her. That had, however, nothing to do with the suit against Foolibai. The claim now made after addition is that either Foolibai or Goolibai was liable and there are really two suits rolled into one. If the claim against Foolibai is proved, a decree will follow against her and the suit as against Goolibai will be dismissed. If, however, Goolibai is held to be liable as the owner of the firm, then the question will arise whether in the absence of leave the Court had jurisdiction to pass a decree against Goolibai. But that is a matter entirely between the plaintiff and Goolibai and the original defendant Foolibai had no say in the matter. The Bombay case is clearly distinguishable from the instant case inasmuch as in the Bombay case a decree could not be passed against both the defendants, the claim against either being clearly distinct and separate. In the instant case the suit must be either decreed or dismissed as against all and the suit cannot be decreed against the original defendants and dismissed against the added defendant. This case, therefore, is hardly of any assistance to Mr. Mukharji.
10. Of the cases cited, the Calcutta case cited above has direct bearing on the question. It is a decision of the Appeal Court and hence a compelling decision on me. The only way the instant case can be distinguished from the cited case is, that in the instant case the party was added on her own application and not on the application of the plaintiff. In the cited case a stranger to the suit was added on the application of the plaintiff and the defendants who in a partition suit occupies the same position as that of the plaintiff. Where the plaintiff seeks leave to amend his own plaint by adding a party, he institutes a new suit as against the added party. But a party can be added on his own application as in the instant case or the Courtitself may direct that a party be added. In either case, such addition may be made in spite ot the opposition of the plaintiff. In such a case, should the plaintiff ask for and obtain leave under Clause 12 of the Letters Patent? The Calcutta decision gives no answer to this question. There is substantial argument on either side. It may be argued as it has been argued with force that inasmuch as leave is the foundation of jurisdiction, leave must be obtained no matter whether the amendment is made at the instance of the added defendant or that of the Court. An application for amendment made on behalf of the plaintiff and an application for amendment made on behalf of the defendant must be treated on the same footing. On the other hand when the Court adds a party suo motu or on the application of the added party in spite of the plaintiffs objection, why should the plaintiff be required to obtain leave to vest jurisdiction in the Court to try the suit? By reason of the addition, the scope of the suit might well be expanded but the plaintiff cannot be held responsible if the addition of party is not at his instance. The Court when it adds a party suo motu on its own responsibility, cannot say at the trial that the addition of party made at its instance was without jurisdiction. Nor can the added defendant be heard to raise objection to jurisdiction when he himself applied to be added as a party in a suit originally instituted by the plaintiff after duly obtaining leave under el. 12 of the Letters Patent. I therefore hold, but not without hesitation that in the absence of the plaintiff's obtaining leave when Ganapati was added as a party this Court has jurisdiction to entertain the suit and pass a decree against Ganapati. I have not followed the decision in Dhandhania's case, 84 Cal LJ 200 on the sole ground that in Dhandhania's case, 84 Cal LJ 200 amendment wag effected by the plaintiff to the suit along with other parties who occupied the same position as the plaintiff's while in the instant case addition of parties were made at the instance of the stranger.
11. The second amendment challenging the deed of settlement executed by Munia was effected at the instance of the plaintiff and as such the position is different. The amendment undoubtedly adds a new cause of action. But the new cause of action is in respect to the same land in respect to which the suit was instituted after obtaining leave under Clause 12 of the Letters Patent. In the case of Provabati Kunwar v. Kaiser Kunwar recently decided by me and reported in : AIR1959Cal642 , I expressed my view that in a suit for land partly situate within and partly outside jurisdiction, instituted after obtaining leave under Clause 12 of the Letters Patent, no fresh leave for amendment is necessary if the plaint is subsequently amended. Further, the new cause of action introduced by the amendment in the instant case relates to land situate wholly within the jurisdiction of this Court. It follows that if by the amendment a new suit, as it were, is being instituted, it relates to a land situate wholly within the jurisdiction of this Court. For the institution of such a suit, in any event, no leave under Clause 12 of the Lettters Patent is necessary.
12. In my judgment this Court has jurisdiction to entertain this suit even though no leave under Clause 12 of the Letters Patent was obtained for either of the amendments effected.
13-18. The case of adoption as made in the plaint is that there is a custom and practice prevailing amongst the Agarwal community that at daughter's son can be validly given and taken in adoption, that Rampratap gave authority to his wife to adopt a son to him and that in fact Munia did adopt the plaintiff as a son on 25-9-1950. These arequestions of fact and considerable evidence -- oral and documentary -- has been tendered. I should state at once that in this case the oral evidence tendered has to be accepted with a considerable amount of caution. (His Lordship considered the evidence and proceeded:)
19. The plaintiffs case is that about a fortnight before 25-9-1950 Munia accompanied by Biswanath went to Ghatoa. Two days prior to 25th September, Chiranjilal went to Ghatoa. Munia decided to perform the adoption ceremony at Ghatoa, because at 16, Mullick Street Jethmal, Ghasiram and Balaram died. On 25th the ceremony wa9 performed. On the previous day Choganlal Brahmin went round to invite people. No invitation letters were printed. After adoption Munia gave a sheet of stamped paper to Mahajan Ganeshram to draw up a deed which was done and the deed was signed by Munia. After Munia's signature, Kanyalal, Hardeo and Ganeshram put their signatures on the document. There were other persons present including Jagannath. After the deed was executed, Gur was distributed amongst the persons present. Chiranjilal came away two days after. Biswanath went on living with Munia, now the adoptive mother and stayed there for six months and came to Calcutta thereafter, again with Munia. This document was registered about a month after the deed of adoption. The original deed has not been tendered in evidence, but a certified copy is exhibited in this case. The certified copy exhibited bears the date 8-5-1956. Chiranjilal stated in Court that he procured himself the certified copy in early May. He said that two other certified copies were also obtained on his behalf which he had in his possession and which were shown to the Court by his counsel Mr. I. P. Mukherjee. Either side is alleging that the original is being suppressed by the other side.
20. The document is short and reads as follows:
'I, Mussamat Munia. widow of Rampratap son of Lachhi Ram Agarwalla, of Ghatoa, with a view to continuing the line of descent of my deceased husband Rampratap and for the purpose of spiritual welfare of his departed soul, by this deed of adoption adopt, in the line of my deceased husband, the son of. Chiranjilal Agarwalla of Chirawa district Zbunjhunu, Rajasthan, by the name of Biswanath who is my real and natural gandson, and declare that from this day the abovenamed Biswanath, as the natural son of myself and my husband, has acquired all lands of and entire rights in all my own, my husband's own and ancestral moveable and immovable properties which (would have belonged) to our natural son. And the abovenamed Biswanath shall consider me to be his mother who bore him and I will consider him to be my natural son. No heirs or relations of my husband shall be competent to challenge this deed of adoption--if they do, they shall be deemed to be liars. I have executed this deed of adoption out of my own accord, in possession of intellect and sense, and, without being under the influence of intoxication or ire, so that there be proof and the same may be of use at the proper time.'
21. It is dated 25-9-1950 and witnessed by 1. Kanayalal Kamkhin of Ghatoa, 2. Hardeo Mahajan of Ghatoa and 3. Ganesh Ram Mahajan. Ganesh Ram according to the evidence is the scribe. On 21-10-1950, the deed was presented for registration before the Sub-Registrar, Nawah, Parasrann PuroMt by Munia. Munia was identified by Brijmchon pleader. Munia admitted the same and declared that she having no son adopted Biswanath and executed the deed which might be registered. The deed shows the signature of Munia and Brijmohon Misra. Two witnesses at the time of registration are (1) Jagannath Mahajan and (2) Mangual Purohit. The certificate then indicates as follows:
'Registered in pp. 156 and 157 of Vol. 2 of Register Book No. 5 dated 21-10-50 and fee charged as under:
Sub-Registrar - Sambhar
It appears on the margin of the first page that the stamp paper was sold by Rameswarlal, Tahsil Nawah, to Munia widow of Rampratao Agarwalla Mahjan of Ghatoa Pargana Nawah through Jabar Sing on August 28, 1950.
22. There are some/ mistakes in the translation originally filed. Subsequently it has been corrected by tile translator who made the translation. The translator present in my Court approved of the corrected copy as being the correct translation of the original.
23. Objection has been taken to the admissibility of the certified copy as evidence in this case by the learned counsel for the defendants. It isalleged that the plaintiff is in possession of the original and is suppressing it. The reason for suppression is that to the knowledge of the plaintiff,the document is not a genuine deed executed byMunia. It is however impossible for me to holdon the evidence before me that the plaintiff is inpossession of the original and is withholding theoriginal from the Court. If the original is not inthe possession of the plaintiff, then it may be in thepossession of the defendants Dhapu and Cbandanmull and, if not, in somebody else's possession --not known to' the plaintiff. If it is in the possession of the defendants, then secondary evidence isadmissible without any notice, otherwise the plaintiff is entitled to tender the certified copy as secondary evidence on the footing that the original islost. The copy shows that it is a copy of an entryin Book No. 5. Book No. 5 required tobe kept under Section 51 of the Registration Act is the 'Register of deposit ofwills.' The instant document should have beenentered in Book No. 4 'Miscellaneous Register.'There is no doubt that the entry has been made inthe wrong book. It should have been entered inBook No. 4 but has in fact been entered in BookNo. 5. This is not a document which must be registered to be an effective document in law. Themistake is obvious and I am unable to holdthat because of the entry having been madein the wrong book, registration is invalidand no certified copy of such anentry in the wrong book is admissible in evidence,(see Satindra Nath v, .Tatindra Nath and Girish Chandra Sealin the matter of, 40 Cal WN 1012 : (AIR 1936 Cal212). Otherwise the certified copy is ex facie regular bearing the certificate of the registering authority as being a true copy. The certified copyis, in my judgment, admissible in evidence underSection 76 of the Indian Evidence Act. I am not considering the question now whether the original ofthe certified copy was a genuine document executedby Munia.
24. This document ex facie is nothing more than a bare admission on the part of Munia that she has taken in adoption Biswanath. The document does not state when the adoption was taken though it does suggest that it took place on the same date. It does not state how she has done it, what, if any ceremony was performed. It does not re-record that Chiranjilal gave away the boy in adoption and all the necessary and usual ceremonies have been performed. It does not state that Munia had authority from her husband to adopt. I should imagine that the authority of the husband being the condition precedent to adopt, such a document to evidence a valid adoption by the widow should record clearly the authority with full particulars. Again, Chiranjilal is not a party to the document nor is he a witness to it. It is indeed strange that if as the evidence is that the document was written out immediately after Chiranjilal gave away the boy in adoption and the document was intended to evidence this fact and considered so important as to be registered, why Chiranjilal should not be a party to it or at least be a witness to it. No explanation has been given to explain this absence of Chiranjilal in not being a party to the document. The stamp papers appear to have been purchased in the name of Munia by one Jabar Sing long before Munia came to Ghatoa. Munia. according to the evidence of the plaintiff and his father Chiranjilal, came ten or fifteen days before the date of adoption. About A fortnight before the stamp papers were purchased. Munia must have therefore written to Jabar Sing or any other man to purchase the stamped papers. No such letter, if any, has been produced. Jabar Sing has not been, called. There is no evidence who this Jabar Sing is. Of the witnesses to the document, only Hardeo Mahajan gave evidence. Ganesh Ram Mahajan the scribe witness is dead. Kanyalal Kankhin has not been called. Apart from these witnesses, Jagannath Mahajan who is a witness to registration gave evidence of execution of the document. Jagannath Mahajan gave his reason for not being a witness to the execution of the deed. The explanation is that since his brother Ganesh Ram was a witness, he did not become a second witness from the same family. Chiranjilal and Biswanath also gave evidence on the point. No explanation acceptable to the Court has been given as to why Chiranjilal was not a witness to the document. According to Chiranjilal, immediately after the ceremony of giving and taking was finished, the stamped paper was given by Munia to Ganesh Ram the scribe who wrote out the deed which was then executed. Chiranjilal was present then at Ghatwa. Chiranjilal left Ghatwa two days alter. This deed appears to have been presented for registration about a month after by Munia herself who went to Nawah for the purpose. Brij Mohon who identified her to the Sub-Registrar has nofi been called and no explanation has been given of this failure to call Brij Mohon. It should be kept 5n mind that the defence case all along had been that the document wag not a genuine document. Of the two witnesses present at the time of registration, Jagannath Mahajan gave evidence. The other witness Mungilal Purohit, according to Jagannath Mahajan, is dead. The witnesses who gave evidence that the necessary ceremonies had been performed are Hardeo Mahajan, Jagannath Maliajan, the plaintiff and his father Chiranjilal Churiwalla. The only living daughter of Munia, viz.. Dhapu or her husband or any other agnates like Raghunath Rai, Kanayalal and others who were living in Calcutta were neither invited to attend nor did they attend, if such, a ceremony was held. So also no intimation of this fact was given to Ganapati or the near agnates either before or after the alleged adoption.
25. Did Munia execute the deed of adoption dated 25-9-1950? The defence case is that Munia never executed this deed. The original deed is not forthcoming to enable me to compare the signature of Munia in the deed with the signature in the deed of settlement executed in respect to pre-mises Nos. 1 and 2, Jagabandhu Boral Lane. I have, therefore to come to my decision on the evidence on record as to whether Munia executed a deed, the certified copy of which has been exhibited in this case. That a deed was executed which purported to be a deed executed by Munia in September 1950 is a fact proved beyond doubt. There is the evidence of registration and there is the certified copy which proves that on 21-10-1950 the original of the certified copy was registered. The fact that it was entered in the wrong book is hardly material on the point. It was suggested on behalf of the defence that this document was created after the present dispute started and registered surreptitiously and an ante-dated entry has been made in the Registration Book. This is hardly acceptable. It must be held on the present evidence tendered by the plaintiff on this point, which I accept, that the document was executed on 25-9-1950 which was subsequently registered on 21-10-11950. If the document was in fact executed, who other than Munia could have done it It is to be noted that there is clear proof that in the middle of 1949 June-July Munia was anxious to take! Biswanath in adoption. The oral evidence tendered on behalf of the plaintiff by Hardeo, a witness to the document, and of Jagannath Mahajan of its registration by Munia becomes therefore acceptable. Accepting this evidence I hold that Munia executed the document on 25-9-1950.
26. This original document I hold is not in the possession of the plaintiff. The suggestion made by the defence that the document is in the possession of the plaintiff and he is suppressing it because the document is not genuine is not acceptable to me. If as I hold that the document was genuine, there could hardly be any reason for the plaintiff to withhold it assuming he had the document. Defendant Dhapu may or may not be in possession of the original and it is not necessary for me to record a rinding as to whether Dhapu is in possession of it. In order to enable the plaintiff to tender the certified copy as a secondary evidence, it is enough for the plaintiff to prove that the original is not in his possession and so far as he is concerned it is lost. There is ample evidenced to that effect which I accept.
27-37. The adoption is proved by Hardeo and Jagannath of Ghatwa, Chiranjilal and Biswanath. The other witnesses like Kanayalal, Raghunath Rai and Harchandrai only heard of it and their evidence cannot be considered to be evidence, if at all, of any value on the point. (His Lordship reviewed the evidence and continued :)
38. It is clear that only after he received the certified copy of the deed of adoption that Chiranjilal decided to set up the title of his son to the estate of Ramprotap as his adopted son. It appears from the Ghatwa correspondence that a number of busy bodies were out to get certified copies of the deed. Mr. Mukherji stated that in fact three certified copies were obtained including one obtained by Chiranjilal himself. The one tendered in this case is dated 8-5-1956, which, according to Chiranjilal, he obtained himself after going to Nawa. Other certified copies also were obtained in or about the same period. The first overt act took place on 6-5-1956 when Biswanath lodged a diary to the effect that on the same date at 10 a.m. Dhapu came and was trying to get possession of the household articles left by Munia at 16, Mullick Street and thereby threatening the complainant to deprive him of his legal rights of getting possession of the deceased's articles. He further added that he being the son of her elderdaughter Rukmini Debi is the legal heir to the property.' It is noted by the police officer that the dispute being over civil matters the party has been referred to court. This diary entry is proved by the police officer who made it. The signature of Biswanath Churiwalla is there in Hindi. Biswanath was confronted with this diary which showed that upto date he put forward title as a grandson of Ramprotap by his daughter Rukmini. Biswanath did not put forward his claim as the adopted son of Ramprotap. At first Biswanath stated that on 6-5-1956 Dhapu did not come back on that date. On the following day he corrected his evidence and stated that Dhapu was there. In an affidavit affirmed on 25-6-1956 by Biswanath in a proceeding in this suit he stated in paragraph 22(b) that he Biswanath locked the room in the occupation of Munia on 17-4-1956 and he locked the other rooms on 7-5-1956. Dhapu on returning back broke open all the locks in the absence of Biswanath and took possession of the rooms wrongfully. His attention was drawn to this affidavit. In court he stated that of the dates given April 17, is alright but May 7, is wrong. Biswanath's evidence in answer to Q. 328 is as follows :
'No, I stated before the police that I was the son of the late 'Munia Debi and that there was a deed of adoption and I was the rightful owner of her properties and that the defendant Dhapu had wrongfully and forcibly entered the house. But the police officer said, 'I am not going to admit what you say; where is the deed of adoption?'
Objection was taken that this statement before the police officer is not admissible in evidence under the Criminal Procedure Code and the Evidence Act. It has not been disputed that the statement is relevant evidence which would have been admissible had it been made before any other person. But it is contended that such a statement when made to a police officer is not admissible. I find -neither reason nor authority in support of such a proposition. The authorities cited are in connection with criminal proceedings. No doubt a statement made to a police officer cannot be admissible as an evidence of confession of guilt. It is absurd to invoke the authorities and reasoning in support of an argument that such a statement before a police officer cannot be proved as an admission under Sections I5 to 21 of the Evidence Act, in a civil case. I hold they are admissible. The police diary does suggest that even on 6-5-1956, Biswanath was not asserting his title to the estate of Ramprotap as his adopted son though undoubtedly he put forward a claim. If his evidence is accepted that he did refer to the deed of adoption to the police, then for the first time on 6-5-1956 he asserted his title as the adopted son of Ramprotap. It is however difficult to believe that Biswanath stated to the police that he was the adopted son and that the police officer stated that he was not going to admit that and that he demanded to see the deed of adoption. There was no reason why the police officer should not record what Biswanath stated. The police officer would all the same be entitled to refer the parties to the Civil Court on failure of Biswanath to produce the daed of adoption. There was no reason whatsoever for the police officer not to record Biswanath's statement, if in fact such a statement was made. Biswanath's evidence that he signed the diary without knowing the contents is hardly acceptable. In the police diary an overt) act is alleged to have been done by Biswanath on 16-4-1956 when he locked the doors of the room at 16, Mullick Street in proof of Biswanath's title. The diary was made only for the purpose of creating evidence and it was felt that the overt act inproof of Biswanath's title must be ante-dated to strengthen the plaintiff's case. I do not believe the story put forward by Biswanath.
39. Certified copy of the. deed of adoption was obtained On 8-5-1956. Thereafter, in May Mr. S. N. Bagla acting for Biswanath wrote letters to the officer-in-charge, Burra Bazar Police Station and the Calcutta Corporation not to grant trade license to Dhapu of the 'Jilibi Shop', to the tenants not to pay rent to Dhapu. He also advertised in the papers that Biswanath was the adopted son of Ramprotap and as such heir to his estate. On 11-5-1956 Chandanmull filed a petition in the Court of the Chief Presidency Magistrate to the effect that Chiranjilal, Biswanath and Biswanath's step-mother had started since the beginning of May 1956, creating disturbance in the family and are Sending undesirable persons to intimidate your petitioner to give up the property in favour of the accused persons.' In answer Chiranjilal filed a petition after the institution of the present suit, putting forward the claim of Biswanath to the entire estate of Ramprotap as his adopted son. The present suit was filed on 17-5-1956.
39-A. I have not the least doubt that till May 1956, the parties were living in amity and it is only after Chiranjilal obtained the certified copy of the deed of adoption that disputes started and Biswanath's title as the adopted son to inherit the estate of Ramprotap was asserted. I am unable to accept the plaintiff's case that he was driven out from 16, Mullick Street on the day after the death of Munia by Dhapu and her husband. There is a discrepancy in the evidence as to the time when the altercation look place between Dhapu and Biswanath when Dhapu was alleged to be removing the title deeds and movables. According to Biswanath it took place at about 9 p.m. that is to say, two hours after the party returned back from the burning ghat. According to Chiranjilal it took place in the early hours of the following morning. Nothing happened, however, after this serious event. According to Chiranjilal, he went to Dhapu to plead for Biswanath but after Dhapu peremptorily rejected Biswanath's claim nothing happened. Chiranjilal advised his son to see the solicitor Mr. Bagla and the son's evidence is that he saw the solicitor. This story of Chiranjilal and Biswanath is unacceptable. The solicitor Bagla was approached in early May and from early May the solicitor took all necessary steps to protect the interest of Biswanath. Biswanath when hard pressed in cross-examination stated that on the day following his expulsion from 16, Mullick Street, he lodged a complaint with the police. This is patently false. Had there been such an important piece of evidence, the plaintiff would have tendered it. The story of locking the doors of 16, Mullick Street on April 16, as contained in the police diary of (3-5-1956 is clearly an afterthought and manufactured for the purpose of evidence. I have no hesitation in holding that the funeral and sradh of Munia were performed by Raghunath the nearest agnate. All the ceremonies were performed by Raghunath including the sradh at 16. Mullick Street. I further hold that Chiranjilal & Biswanath both participated in the sradh ceremony performed at 16, Mullick Street on the 12th day. No parallel sradh was performed at 19, Amratolla Street as alleged by the plaintiff. The whole story is a myth. When the party went to Ghatwa for performing! the Mauser ceremony and it was performed with great pomp, it is then that we get an indication of setting up the title of Biswanath and a small group of Ramprotap's relations were on the move in thematter. Chiranjilal was being regailed with the fantastic story of Dhapu having dug up large quantity of valuable ornaments and utensils -- sold some of them after melting and met the lavish expense incurred at Ghatwa from the sale proceeds. There was not merely the mauser expenses to be met but liberal bribes were given to the village folk. Chiranjilal was told that there was a registered document which will prove his case. Though urged by Harchandrai and others, Chiranjilal did nothing till he got the certified copy of the deed of adoption in May. Immediately on receipt of the deed, Chiranjilal acted and acted with vigour. We find the solicitor is sending letters to the tenants, to the Corporation, to the police and all and Sundry setting up Biswanath's title. Advertisements were issued in the papers and shortly thereafter the suit was instituted on 17-5-1956.
40. Why Chiranjilal did nothing before the receipt of the certified copy? If he knew as a fact that Biswanath was given in adoption by him at Ghatwa and taken by Munia and that a deed was executed immediately after evidencing adoption, if he knew all these facts, this inaction cannot be explained. I would have expected Chiranjilal to take all steps on behalf of his son immediately. He would not have allowed Dhapu and Baghunath to perform the sradh to the total exclusion of Biswanath. He would not have allowed Dhapu to take possession of the movable and immovable properties of Ramprotap and Munia and be a mere idle spectator. If Chiranjilal knew that there, was a registered deed of adoption and his evidence is that he was shown this deed by Munia, then he need not have waited to receive the certified copy to decide his course of action. The more I consider the conduct of the parties, the more convinced I am that Chiranjilal, Biswanath, Raghunath and others did not know of the existence of this registered deed and would not believe of its existence, unless certified copv was shown. This is the reason why in spite of the urgings by Harchandrai and his group, Chiranjilal did not move till the certified copy was obtained. This conduct throws very great suspicion on the story of adoption ceremony having been performed at Ghatwa in which Chiranjilal took an active part. The oral evidence tendered is not of disinterested witnesses and for reasons set out before Cannot be accepted unless corroborated by dependable evidence -- either of documents or of conduct. The documents strongly relied on by Mr. Mukharji are the letters of Chandanmull to Chiranjilal in the middle of 1949 and the deed of adoption. These two letters do indicate that Munia was anxious to take Biswanath in adoption. There is, however, no evidence that Chiranjilal or his wife Rukmini were also willing to give Biswanath in adoption. Chiranjilal's evidence is that after the birth of Rajendra he was willing to give Biswanath in adoption. It follows that prior to the birth of Rajendra in December 1949 he was unwilling and that was the state of mind of Rukmini as well. Rukmini died a fortnight after Rajendra's birth and it is difficult for me to believe that in the fortnight she lived she did apply her mind to the subject and changed her mind. I believe that Rukmini till the date of her death was unwilling to give her eldest son in adoption and that was the attitude of Chiranjilal as well. The oral evidence of Chiranjilal that he subsequently changed his mind is hardly acceptable. The only reason given to change his mind is the birth of Rajendra. How this event has anything to alter Ghiranjilal's decision is not intelligible to me. Had Biswanath been the only son of Chiranjilal then I can well understand Chi-ranjilal's unwillingness to give him in adoption and his reason for altering his decision when another son was bom. But such is not the case. Chiranjilal had at that time two sons and Rajendra is the third. While however giving due importance to the letters of Chandanmull to Chiranjilal in the middle of 1949 as very strong evidence of the fact that Munia was anxious to take Biswanath in adoption, it falls short of being evidence of the fact of adoption in so far as it does not indicate any willingness on the part of Chiranjilal to give away the boy in adoption. Further, Chiranjilal could not altogether ignore his deceased wife's intention in the matter. I hold that the deceased wife was against giving her eldest son in adoption altogether. The third document on which reliance is placed by Mr. Mukharji is the deed of adoption. The deed, however, does not recite that the ceremony of giving and taking has been performed, nor is Chiranjilal a party to it. He is not even a witness. If the deed was drafted immediately after the ceremony in the presence of Chiranjilal. I would expect Chiranjilal to be a party and I would expect that the document would record this essential fact in the deed that the boy was given away by Chiranjilal and accepted by Munia. In the absence of Chiranjilal being a party to the deed and in the ab-bence of averment in the deed that the ceremony of giving away and taking has been performed, I am unable to hold that the document is an evidence of the ceremonies having been performed. It may well be that in her anxiety to take Biswanath in adoption, Munia at the instance of her Ghatwa relations like Harchandrai and Hardeo executed the document, even though she was aware that the father was not willing to give the boy in adoption. The deed of adoption, in any event, cannot be considered to be a clinching document in the absence of Chiranjilal being a party to it and in the absence of any reference , of the ceremony of giving and taking has been performed. In this state of affairs subsequent evidence of conduct of the parties assumes very great importance. Witnesses may lie but evidence of conduct proved by cogent evidence is always dependable. I have indicated before that the conduct of all parties indicates in unmistakable terms that there was no adoption. Biswanath continues to be the son of Chiranjilal Churiwalla even after adoption and was admitted in schools in the name of Biswanath Churiwalla, son of Chiranjilal Churiwalla having residence at 19, Amratolla Street. I believe that Biswanath after the alleged adoption all along resided at 19, Amratolla Street and not at 16, Mullick Street and I believe the defence witnesses on this point. Raghunath and Kanailal's conduct tended to show that there was no adoption. Raghunath could not have performed the funeral and sradh ceremonies had there been any adoption. So also Haghunath could not have been a party in the issue of invitation letters on the occasion of Munia's sradh excluding, the name of the only son of Ramprotap. Kanyalal could not have taken the four Havelis of Ramprotap from Dhapu had Biswanath been the adopted son of Ramprotap, in which event Dhapu would have no title in the Havelis to give to Kanvalal. Oral evidence now of Raghunath and Kanyalal loses all weight, in view of the above facts. It is clear to me that after the Mauser ceremony. Harchandrai and Hardeo enlisted the support of Raghunath and Kanvalal. Prior to that date, Raghunath and Kanyalal had not the slightest knowledge of the deed and the so-called adoption.
41. Mr. Acharya strongly urged me to holdthat Biswanath never went to Ghatwa. Biswanath's evidence is that he twice went to Ghatoa.once when the adoption took place when he resided there for six months and subsequently a few years after, when he resided there for a few days. When his knowledge of Ghatoa was tested by cross-examination, it transpires that his knowledge about Ghatoa is next to nothing. One who resided at Ghatoa first for six months and then for ten days subsequently is expected to have better knowledge of the place. On this basis, Mr. Acharya, made his submission. I cannot hold that this argument of Mr. Acharya is of no substance. I have previously discussed the evidence tendered as to authority to adopt given by Ramprotap to Munia. The contradictions in the evidence of the different witnesses have already been noticed. Further, in my view, the whole story suffers from inherent weakness. At the time when the authority was alleged to have been given, Jethmal, the first son, died some three months before and the second daughter was born. Ramprotap, though advanced in age, was still healthy and virile, impregnating his third wife practically every year. There was no occason for anybody to think that Ramprotap would not have any other son. In fact, subsequently another son -- Ghasiram -- was born to Ramprotap. In such state of fact, the question of adopting a soncan hardly arise. The question of adopting a son only arises when the parents give up all hope of having natural sons. When the couple are sexually active and the female is regularly conceiving and giving birth to children, the question of adopting a son can hardly arise. If there was any talk at all of adoption, as deposed by Raghunath, Kanyalal and Hardatrai, it was a talk of the most casual kind and was not a solemn act of Ramprotap giving authority to his wife to adopt a son. Further, if in fact such an authority was given by Ramprotap and Munia was anxious to have a son adopted in the absence of a natural son, why need she have waitedStill September 1950 to adopt a son Ramprotap died in 1940; her only son died in 1943. Why need Munia have waited so long if she had authority? This is somewhat inexplicable. Mr. Mukherjee argued that the letter of Chandanmull to Chiranjilal proves that Munia intended to adopt Biswanath and Chandanmull was urging Chiranjilal to give his son Biswanath in adoption. The nearest relations of Munia, therefore, were taking interest in the matter of adoption of a son by Munia. Unless Munia had the authority to adopt and this fact of Munia having authority was known to Chandanmull, Chiranjilal and all concerned, how the question of Munia adopting a son would arise at all. This is undoubtedly an argument available to Mr. Mukherjee. On the other hand, it should not be forgotten that the authority alleged was given by Ramprotap when Dhapu was two months old. Neither Dhapu nor her husband! Chandanmull could possibly have any knowledge of the authority Ramprotap is alleged to have given Munia when Dhapu was two months old. Also Chiranjilal could not have personal knowledge of the authority. It is not in evidence that Munia or anybody else ever fold either Chandanmull or Dhapu or Chiranjilal that she was authorised by Ramprotap in 1921 to adopt a son, in case she had no son born or if born died leaving no issue. Having regard to this fact, the importance of this bit of evidence, namely, Chandanmull writing to Chiranjilal whether he waswilling to give his son in adoption to Munia practically vanishes. The letter, therefore, amounts to no more than this that Munia was anxious to adopt Biswanath and at her request Chandanmull wrote to Chiranjilal stating Munia's desire and enquiring whether Chiranjilal and Rukmini were agreeable to the proposal. Neither party at that time considered whether Munia had the necessary authori-ty; that was not in the mind of anybody. It is not permissible from this fact to infer that there was in fact authority given to Munia in 1921 and that Chandanmull and Chiranjilal and all concerned had full knowledge of this fact. In my view, Raghunath, Kanyalal and Harchandrai are not merely extremely partisan witnesses but they are also otherwise undependable. I have felt my inability to accept their evidence on other important points in this case. They are not, in my view, dependable witnesses of truth. Further, they contradicted each, other in material particulars. Finally, the story is inherently unacceptable. On the evidence, it is impossible for me to hold that Ramprotap gave authority to Munia to adopt after the birth of Dhapu in 1921, in case Ramprotap had no natural son or in case the natural son died after the death! of Ramprotap.
42. On the question of adoption, the only other point that now remains to be considered is whether the custom as pleaded in the plaint has been proved to exist. This is a question of fact. The custom is pleaded in paragraph 10 of the plaint and reads as follows:
'According to the custom and practice prevailing amongst the Agarwal Community to which the parties belong, a daughter's son can be validly given and taken in adoption.'
The custom pleaded is very wide in its terms, covering the entire Agarwal community of India, The custom pleaded is a community custom and not a local or family custom. This is certainly unfortunate. It was not necessary for the plaintiff's case to plead custom in such wide terms. Burden of proof of such a community custom is apparently much heavier than that of a family or local custom. It would require examples spread throughout India and the number must necessarily be correspondingly large. Instances of adpoption of grandsons by daughter sought to be proved in evidence by the plaintiff are seven in number. (His Lordship considered these instances and proceeded). The evidence ot adoption tendered, however, does not enable mroe to decide whether the custom relied on in each case was family custom or community custom. The number of cases tendered is comparatively few. Excluding the case of Rurhmal, held against by Costello, J. there are altogether six cases -- three of them very recent, one 50 years old and another 10 or 15 years. The cases are confined to a few families. No priest or cast dignitary or elder has been called to give general evidence as to the existence of this custom. On the defendant's side, Alamchand Joshi has tendered evidence denying the existence of this custom.
43. The Sastric Hindu Law lays down, inter alia, that any person who is a Hindu may be taken or given in adoption, provided he must not be a boy whose mother the adopting father could not have legally married. This is the general rule, but only applicable to the three upper classes and, excluding the Sudras. But even as to the three upper classes, this rule may be modified and adoption, though prohibited under this rule, would be upheld, if sanctioned by custom. The Agarwalas are not Sudras and they have been held to belong to one of the three upper classes. This has not been disputed. Reference may be made to the case of Lala Rup Chand v. Jambu Parshad, 37 Ind App 93 (PC), where it is held that Agarwal Jains belong to the twice-born classes. In the instant case, therefore, the adoption of the grandson by daughter, though prohibited by the general Sastric Law, can be upheld, if a custom is proved to exist sanctioning such adoption. Sir Dinshaw Mulla, Sir HenryMaine and Shri Golap Chandra Sastri in their treatises on Hindu Law record that this rule has been restricted in many recent cases to the daughter's son, sister's son and mother's sister's son. In the treatises above noted, no case is to be found of an adoption of a grandson by daughter among the Agarwals of Rajasthan. Mr. Sambhu Ghosh, learned counsel appearing for Ganapati, strongly urged that the absence of reference to any case of such adoption in such authoritative treatises Is a strong piece of evidence of the fact that no such custom exists amongst the Agarwals of Rajasthan. Mr, Rathin Dev submitted that in order to establish that a custom exists to supersede the general law, it must be established not merely that there has been such adoption in fact, but that it must further be proved that the parties were conscious that under the general Hindu Law it is not permissible but has become permissible under the custom of the community or family whereby the general law is superseded. Mr. Dev urged that there must be evidence that such adoptions are recognised by the community to which the parties belong and for that purpose it is imperative to lead evidence not merely of certain specific cases of adoption but evidence of priests or leading members of the community that such a custom is recognised by the community. In the instant case, though there is evidence of adoption of grandsons by daughter, there is no! general evidence by a priest, pundit or leading member of the community in support of such custom. The only evidence of priest or pundit is that of Alamchand Joshi, who denies the existence of such custom. I agree with Mr. Dev to this extend that evidence of certain cases of adoption will not be enough to prove the existence of custom, but it must be proved further that such adoptions have been accepted and recognised by the community. Such acceptance may be proved by the general evidence of the priests, pundits or village elders. But, in my judgment, they may be proved by other evidence as well. If there is evidence that even after such adoption the adoptive father and the adoptive son or their respective families have not been socially ostracised or that the adoption has not been challenged and title of the adopted son to inherit the property of the adoptive father has not been disputed in a court of law or otherwise by anyone else who would otherwise be entitled to the estate and the adopted son has been allowed to enjoy the property of the adoptive father, that would be good evidence of approval of the community of such adoption and the existence of custom in modification of Sastric Law is thereby proved. I do not think it essential that the custom being in derogation to the general law, it must be proved that the parties to adoption must be conscious that they were acting contrary to Sastric Law pursuant to a custom which supersedes the Sastrio Law. In the instant case, there is no evidence that the families which were parties to the adoption of a grandchild by daughter have been socially ostracised or that in case of old adoption the right of the adopted son to inherit the property of the deceased father has been challenged. There is no rebutting evidence tendered by the defendants. In the absence of such evidence, it must be held that the adoptions of grandsons in the specific cases proved have not been disapproved of by the community. The next argument of Mr. Dev is that the Email number of cases proved is not enough to establish general community custom, as pleaded in paragraph 10 of the plaint. Mr. Dev strongly relies on the decision of the Judicial Committee in Rup Chand's case reported in 37 Ind App 93 (PC), in support of his argument that to establish a general custom of the Agarwal community, a largernumber of such adoptions in a number of centres of Agarwal population must be proved. In the case before the Judicial Committee, the question was as to the existence of a custom prevailing amongst the Agarwal Jains whereby a married man can be taken in adoption, regardless of age and marriage. To prove custom, 21 witnesses from Jaipur and 36 witnesses from other places were examined. These witnesses gave 43 instances of adoption of married men by Agarwal Jains. Two of the cases cited were sub-judice; three admitted to have been not proved. Of the remaining 38 cases, there was the concurrent finding of both the courts that six have not been proved. Of the remaining 32 cases, 8 were from Saharanpur District, 9 from Muzaffarpur, 11 from Meerut and 3 from Delhi and I from Karnal. The Delhi cases were of very recent origin. The learned Subordinate Judge held that general custom has not been proved. The Allahabad High Court reversed the decision of the Subordinate fudge and held that the custom was proved. The Judicial Committee upheld this finding of the High Court, but did so with the following observation at page 104 of 37! Ind App. :
'The question in the present case was, and is, whether a custom, applicable to the parties concerned, and authorising the adoption of a married boy, has been established. This is strictly speaking pure question of fact determinable upon the evidence given in the case.
The custom alleged in the pleading was this : 'Among the Jains adoption is no religious ceremony, and under the law or custom there is no restriction of age or marriage among them'. And that appears to be the custom found by the High Court to exist. But upon the argument before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centres of Jain population, was insufficient to establish a custom so wide as this, and that no narrower custom was either alleged or proved.
In their Lordships' opinion there is great weight in these criticisms, enough, to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming.'
In the instant case, the number of adoptions proved is comparatively very small and such evidence as has been given does not cover all the centres of the Agarwal population, I agree with Mr. Dev that the cases proved are insufficient in number to establish the community custom as alleged in paragraph 10 of the plaint. The case of Musammat Subhani v. Nawab decided by the Judicial Committee and reported in 68 Ind App 1 : has been cited by Mr. Mukherjee. It was a case of succession and the question was whether there was a local custom applicable to a small class (Tula) in a district of Punjab whereby a collateral of the tenth degree takes precedence over a married daughter in succession to non-ancestral estate. In this case the court was called upon to consider the evidentiary value of 'Wilsons Manual on questions of Customary Law' and of entries in the riwaj-i-am. The court held that the Manual was admissible as evidence both under S. 48 and Section 35 of the Evidence Act. The entries in riwaj-i-am are held to raise a presumption of correctness^ but what evidence is required to rebut the presumption depends on the facts of each case. But this decision lays down that English rule of legal memory is not applicable to determining the validity of a custom in India. The observations in 68 Ind App11 at page 31 : are in these terms :
'It must be ancient; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of main -- still less, that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district.'
It is to be noted that neither party proved any specific instance in this case; so there was no rebutting evidence and the case was disposed of on presumptive evidence of the entries and the evidence of custom as recorded in the Manual. The original law as to adoption is to be found in the Sastric text. The restrictions imposed, however, have been modified by the Hindu society in the only way open, namely, by development of custom. This is the way of evolution of Hindu Law. The custom evolved to modify the Sastric Law must necessarily be subsequent in point of time. For Very cogent reason recorded by M. R. Jayakar, J. in , the rule of legal memory evolved by the English Courts has no application in India to determine the existence and validity of the custom. To validate a custom in order to have the force of law in India, the custom need not be of such long standing 'that the memory of man runneth not to the contrary'. In argument I put this question to Mr. Dev that if for 50 years past it is proved that there is a custom in existence, would that have the force of law? Mr. Dev replied that from this proof of existence for the last 50 years the Court will infer that it was in existence from time immemorial, hence ancient, and it has the force of law If, however, it is proved that previous to 50 years there was a case of such adoption but not approved of or accepted by the then Hindu society, then according to the reasoning of Mr. Dev, the proof of the custom for subsequent 50 years will not establish its antiquity and its validity as a customary law. This is hardly satisfactory. The Sastric Law must be held to be the law at the beginning and adoption of a grandson by daughter was then illegal. At some subsequent point of time this has changed by the evolution of a custom and if the date of change over is ascertained, then according to this reasoning the custom would lose its validity which without the ascertainment of the time of change over would have been valid. I confess that I do not understand far less appreciate this logic. Further, this would take away the flexibility of the Hindu society and make it rigid and hidebound bv the Sastric injunction. This argument will deny the evolution of Hindu society which has subsequently modified the original Sastric Law by the development of customary law. If the rule of legal memory does not apply to customary law in India, proof of the existence of custom for the last 50 years is enough to give it validity as customary law, even though it is proved or presumed that the law was otherwise previously. In my judgment, proof of the existence of custom for 50 years is enough to give it the validity of law, even though it is proved that previous to the period a different state of things existed.
44. It is unfortunate that the custom pleaded in this case is in such wide terms that it is impossible to record a finding in its favour on the comparatively scanty evidence tendered. Had the custom pleaded been only family custom Imight have been persuaded to uphold it on the basis of the evidence, scanty as it is. Hardeo is a member of the family and he has stated that his brother Muralidhar adopted his daughter's son in adoption. This is evidence of adoption of a grandson by daughter in the family and on this evidence I may be inclined to stretch a point in the plaintiff's favour and hold that in this family at least such a custom is proved to exist, provided I am satisfied that in fact such an adoption has taken place in the presence of the other members of the family present at Ghatoa who approved of it. Participation, by a large number of members of the family in the adoption ceremony raises an inference that such a family custom exists. Community custom, however, is of a much serious character and on the evidence on record I hold that community custom as pleaded in paragraph 10 of the plaint has not been proved.
45. The plaintiffs case as to premises Nos. 1 and 2 Jagabandhu Baral Lane is that it was purchased by Ramprotap in the benami of his wife Munia in 1928 for Rs. 78,000/-. Munia having no beneficial interest in the property was, therefore, not competent to create a trust in respect to the property on July 29, 1949, whereby after Munia's death. Dhapu and her heirs would get the property. A further case made is that the deed was not acted upon. In the conveyance dated 15th February, 1928. there is no recital that Munia purchased the property with Stridhan money. The property was purchased through Messrs. Charu Chaudra Basu, solicitor and Sashi Bhusan Das Gupta, an assistant of the solicitor's firm, proved the conveyance. Beyond proving the conveyance, he was not able to say whether the purchase money was Ramprotap's or Munia's. The deed of settlement dated 29-7-1949, recites that the property was purchased by Munia with her Stridhan money. Comment of Mr. I. P. Mukherjee is that this recital is an afterthought. In my judgment, neither the absence of recital in the conveyance of 1928 strengthens the plaintiffs case, nor its presence in the settlement deed of 1949 weakens it. The facts that the Corporation rate bills were in the name of Munia. not as a trustee but as before or the rent receipts were granted to the tenants by Munia not as a trustee are not evidence of any great weight to prove that the deed was not acted upon. The evidence tendered by the plaintiffs witnesses Kanyalal, Raghunath and Harchandrai to the effect that Ramprotap paid the consideration money is really no evidence at all, because they had no knowledge of it. It is wishful thinking, pure and simple, Munia might have been brought from a poor family, but I disbelieve Kanyalal when he said that Ramprotap had to pay several thousand rupees to Munia's father at the time of marriage, I nave already noted that these witnesses are not dependable witnesses at all. I attach no importance to their oral testimony as to who was the owner of the property -- Ramprotap or Munia. The mere fact that Munia came from a poor family led these witnesses to infer that in 1928 Munia could not have her own money to purchase this property Munia might well have been given money and ornaments by her husband after her marriage. Indeed, plaintiffs own witness Harchandrai stated that Munia had considerable ornaments and jewelleries of her own. The plaintiffs own case is that Munia had ample ornaments, jewelleries and cash, which Dhapu and her husband is alleged to have misappropriated or secreted. The onus of proving benami is On the person alleging it. To prove benami the plaintiff must prove that it is Ramprotap and not Munia who paid the purchase money. There is no evidence worth the name tothat effect. Mr. Mukherjee submitted that the doctrine of advancement by husband to wife or father to son does not apply to India. That question however can only arise when it is proved that Ramprotap paid the purchase price when the Conveyance was taken not in his name but in the name of Munia, his wife. In the absence of any suchevidence in the instant case, the doctrine relied on by Mr. Mukherjee has no application. I hold that plaintiff has failed to establish benami and the ostensible owner Munia must be held to be the beneficial owner of the property as well. Once it is proved that Munia is the beneficial owner Dhapu inherits the property on Munia's death as sole heir. It becomes imimaterial therefore whether the deedof settlement was acted upon or not. I am not however holding that the deed of settlement has not been acted upon. Such evidence as has been led by the plaintiff is not enough to enable me to record such a finding.
46. In the result, the suit is dismissed. Having regard to the relationship between the parties Imake no order as to costs. I certify that this is a fit case for employment of two counsel.