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Harnabh Pershad Alias Rajajee Vs. Mandil Dass - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1900)ILR27Cal379
AppellantHarnabh Pershad Alias Rajajee
RespondentMandil Dass
Cases ReferredSiddhessur Dutt v. Sham Chand Nundun
hindu law - customary law--jains--power of sonless widow to adopt a son without permission of husband--saraogis--right of a sonless jain widow--limitation act (ix of 1871), article 129--minority. - macpherson and wilkins, jj.1. the parties to this suit are jains of the agarwalla class and residents of arrah in the district of shahabad. the suit relates to properties of considerable value, which are said to appertain to the estate of jinwar dass, who died in 1850 without issue, but leaving a widow misri koer. the plaintiff's case is that misri koer died on the 19th february 1883; and that he then under mitakshara law as heir of jinwar dass became entitled to all the properties claimed. the suit was instituted on the 28th january 1895, and the plaintiff says that he attained majority (21 years) on the 28th july 1894.2. the defendant says that the plaintiff is not the heir of jinwar dass, and that the suit is also out of time as misri koer died on the 6th january 1883, and the.....

Macpherson and Wilkins, JJ.

1. The parties to this suit are Jains of the Agarwalla class and residents of Arrah in the district of Shahabad. The suit relates to properties of considerable value, which are said to appertain to the estate of Jinwar Dass, who died in 1850 without issue, but leaving a widow Misri Koer. The plaintiff's case is that Misri Koer died on the 19th February 1883; and that he then under Mitakshara Law as heir of Jinwar Dass became entitled to all the properties claimed. The suit was instituted on the 28th January 1895, and the plaintiff says that he attained majority (21 years) on the 28th July 1894.

2. The defendant says that the plaintiff is not the heir of Jinwar Dass, and that the suit is also out of time as Misri Koer died on the 6th January 1883, and the plaintiff attained majority more than three years before the date of suit. On the merits his case is that according to the custom prevalent among the Agarwalla Jains, a sonless widow acquires an absolute right to the property left by her husband, and can also adopt a son to him without his permission; that in 1854 Misri Koer personally adopted his father Bhagwan Dass reserving to herself the life interest and that in 1877 she executed a deed by which she gave to Bhagwan all the property which she had inherited from her husband or had herself acquired, and that since then, Bhagwan and after his death in 1893 he, the defendant, has been in undisputed possession of the same. He further says that as a matter of fact Jinwar Das did give verbal permission to Misri Koer to adopt a son, that there was a good and valid adoption whether the Mitakshara Law does or does not apply, and that the plaintiff is estopped from denying the adoption as he, his father Jug Mandil, and all the kinsmen throughout recognised and treated Bhagwan as the adopted son of Jinwar Dass. He also contends that it is not open to the plaintiff now to question either the fact or the validity of the adoption made in 1854, as no suit was brought to set it aside when the Limitation Act IX of 1871 was in force. The existence of the alleged custom and the facts of the alleged adoption, the permission to adopt, the treatment and recognition, were all denied by the plaintiff who said that, if there was any adoption at all, it was an adoption by Misri Koer to herself and not to her husband and that the defendant could derive no benefit from it.

3. On the issues raised to meet all the above mentioned contentions the Subordinate Judge in a full and careful judgment found that the plaintiff is the nearest heir of Jinwar Dass, and that the suit is in time, Misri Koer having died on the 19th February 1883, and the plaintiff having attained majority on the 28th July 1894. Deciding, however, all the other issues against the plaintiff, he dismissed the suit. The plaintiff appeals, and the appeal really opens the whole case, for the defendant supports the judgment of dismissal by contending that the suit ought also to have been dismissed on the preliminary grounds, that the plaintiff was not the heir of Jinwar, and that the suit was out of time under the provisions of the Limitation Act now in force. For the plaintiff it is contended:

(1) That the alleged customs are not proved and that the Mistakshara

Law must apply.

(2) That Misri Koer did not, in fact, adopt Bhagwan Dass, and that,

even if she did so, the adoption was personal to herself and conferred no title on Bhagwan to the properties now claimed: That Jinwar gave no verbal permission to his wife to adopt.

(3) That Bhagwan was never treated or recognized as the adopted son,

of Jinwar, and that the supposed acts of treatment and recognition, even if they existed, did not create an estoppel.

(4) That the suit is not barred under the Limitation Act IX of 1871, as it was not necessary under that Act to bring a suit to set aside the alleged adoption of Bhagwan.

4. It will be convenient to deal first with the questions raised by the defendant as they are of a preliminary character. We see no sufficient reason for dissenting from the Subordinate Judge's conclusion that the plaintiff is the nearest reversionary heir of Jinwar Dass. The evidence is certainly very meagre, but there are few male members of the family now alive. Comparing, however, the evidence of both sides we cannot say that the Subordinate Judge was not justified in considering the evidence for the plaintiff more reliable and sufficient. We feel, however, grave doubt whether he was right in finding that Misri Koer died on the 19th February 1883, and not on the earlier date stated by the defendant. The reason which the plaintiff gives for remembering the date may be more plausible than the reason given by the defendant, but still it is very vague and not of much value where the question is one of days. Much reliance is placed upon the entry in the death register, but having regard to the state in which the book is, and to the evidence of Jung Bahadoor Lall in connection with it, we think no weight can be attached to the entry. From his evidence it would appear that in 1883 the register was in charge of the police, and it is not shown that it was kept under the provisions of Bengal Act IV of 1873, or. of part VIII of Bengal Act V of 1876, which was the Municipal Act then in force. Apart also from all objections which might be taken to the register itself, there is no guarantee for the correctness of the date of the death as entered in it. The entry shows that Mir Karim Buksh reported the death, but who he was we do not know, and it is quite possible that the death may have been reported some time after it actually occurred and entered without any particular regard to the date of occurrence. The Subordinate Judge seems also to have been under some misapprehension as to the nature of the entries in the defendant's books kept by Udoy Chand. There is no reason to doubt that the books were regularly kept in the course of business. Udoy deposes that he made the entries and refreshing his memory from them he gives the date of Misri's death which he certainly could do, if the entries are correct. We do not understand the reason which the Subordinate Judge gives for not relying on them and no good reason for rejecting them has been suggested to us. We cannot, therefore, uphold this part of the decision. The matter is not, however, of much importance as we cannot interfere with the decision as to the date on which the plaintiff attained his majority, and if that is correctly found, the suit is within time, although instituted more than twelve years after Misri Koer's death. If Ramyad Pattak's evidence is believed, and the Subordinate Judge has believed it, there is no doubt about the date of the plaintiff's birth. The truth of his evidence is questioned on the ground that be was not the regular priest of the family, and that he is said to have been called when the regular priest Buloo Misser was temporarily absent. This may give rise to some suspicion but it would not justify us in rejecting his evidence in the absence of other evidence to show that it is false. It is said that the plaintiff did not produce the certificate under which a guardian was appointed by the Court, and that he must be taken to have attained majority at the age of 18 years, but the fact that a guardian was appointed by the Court was not questioned in the Court below and cannot be questioned now.

5. The most important point in the case is as to the existence of the customs relied on by the defendant, and the evidence bearing upon it is very voluminous as a great number of witnesses residing at Arrah and elsewhere have been examined, some of them at great length. This is not the first occasion on which the question of Jain customs has been raised and brought before the Courts in India, and before dealing with the evidence it will be as well to see how the cases stand.

6. In Govind Nath Roy v. Gulab Chand (1833) 5 Select Reports, S.D.A., Cal., 276, it was held that a Jain widow could adopt a son without the sanction of her husband. This was a Moorshedabad case decided in 1833, and the decision was apparently based upon the Vyavastha of a Pundit. There was a further question which was not decided as to the right of the widow under the Jain law to alienate or give away property after the adoption. The opinion of the Pundits as to this was conflicting. In Sheo Singh Bat v. Dakho (1874) 6 N.W.P., 382, the Allahabad High Court held in 1874 that the sonless widow of a Saraogi Agarwalla takes by the custom of the sect an absolute interest in the self-acquired property of her husband, and that she could adopt without the permission of her husband or the consent of his heirs. There was a further question whether on the adoption the estate taken by the widow passed to the son as proprietor or whether she could retain the ownership. It was not, however, necessary to decide that point. The widow had apparently claimed to retain the ownership, at least she had treated the adopted son as her successor, but as she and the adopted son were both plaintiffs and not in contest on the point, the Court made a decree declaring her right to be maintained in possession as proprietor or in the alternative as manager on behalf of her infant son. This was a Meerut case. It was appealed to Her Majesty in Council and the decree was upheld (1878) I.L.R., 1 All., 688: 2 C..L.R., 193: L.R., 5 I.A., 87. I shall have to allude to their Lordships' judgment later on, but may point out here that the decision was arrived at after a great deal of evidence had been taken at Delhi and other places as to the custom of the Jains. There appears to have been a conflict of evidence as to the extent of the widow's dominion over the ancestral property of her husband, when that property was divided or undivided, but as the suit only related to the self-acquired property of her husband, it was unnecessary to express any opinion as to the extent of her right over the ancestral property whether divided or undivided.

7. In Manik Chand Golecha v. Jagat Settani Pran Kumari Bibi (1889) I.L.R., 17 Cal., 518, a Moorshedabad case, it was held that a widow of the Oswal Jain sect could, according to the custom of the sect, adopt a son without the authority of her husband. There the family had become Vaishnabs or orthodox Hindus, but it was held that this change did not affect the laws and customs by which the personal rights and status of the members of the family were governed.

8. In Lakhmi Chand v. Gattoo Bai (1886) I.L.R., 8 All, 319, an Aligarh case, the right of a Jain widow to adopt a son without the permission of her husband or the consent of his heirs was recognized, and it was held that the adoption must be taken to be to her husband. In this case the question was whether the widow could make a second adoption to her husband, the son whom she had first adopted having died an infant and unmarried. It does not appear that the right to make one adoption to her husband without permission was at all disputed, and it may be, for all that appears to the contrary, that the right to make the second adoption was disputed as inconsistent with the Jain customs. The case is not, therefore, of much value on the questions now raised, nor does it appear to what sect of Jains the parties belonged.

9. In Bachebi v. Makhan Lal (1880) I.L.R., 3 All., 55, a Manipuri case, which came before the Allahabad Court on second appeal, the question was whether a Jain widow of the Bindala sect, said to be a small one confined to a few districts, could by the custom of the sect alienate ancestral property be inherited from her husband, and it was held that the custom was no; established and that the Hindu law must take effect.

10. In Shimbhu Nath v. Gayan Chand (1894) I.L.R., 16 All., 379, a Saharanpur case on second appeal to the High Court, it was held that an Agarwalls Jain widow had full power of alienation over the non-ancestral property of he: deceased husband, but that no such power was proved over the ancestral, property. Edge, C.J., and Banerji, J., seemed to consider that the decision in Sheo Singh Rai's case was sufficient to prove the custom as regards the non-ancestral property in the absence of any evidence to the contrary.

11. In Peria Ammani v. Krishna Sami (1892) I.L.R., 16 Mad., 182, a Tanjore case, a Jain widow set up the right to adopt a son without her husband's permission, but it was found that the custom was not proved. From the judgment of Best, 0., it appears that the parties to the suit were natives a Southern India, whose ancestors had been converted to Jainism, an it was distinguished on that ground from the case of Rithcurn Lalla v. Sooju Mull Lallah (9 Mad. Jur., 21). In Mandit Koer v. Phool Chand Lal (189) 2 C.W.N., 154, a case from Barh in the Patna district, which is much relief on for the appellant, the parties are described as Agarwalla Saraogis of Bah and a sonless widow set up a right by Jain custom to take an absolute interest in her husband's property, and it was found that the custom was not proved. The case has been much relied on as an authority for the proposition that the particular custom set up must be proved to apply to the particular place where it is alleged to exist, and that evidence of a similar custom at other places is of little or no importance. We are informed that this case is now on appeal to Her Majesty in Council.

12. Some other cases have been cited in which a special custom of the Jains has been set up, but the custom has been either different to the customs alleged in the present case, or there has been ho decision upon it. In Chandun Koer v. Padmanath Koer [Exhibits 26, 8, III, BBBB] the parties resided as here in the Shahabad district. There were two brothers who were said to be joint in estate. The elder brother died leaving a widow who got possession of his share. The mother of the younger brother, a minor, brought a suit to establish the minor's right to it. The widow of the elder brother opposed the claim on the ground that according to the Jain custom it had devolved on her. The case was eventually compromised, the elder widow, the defendant, getting a life interest in some immoveable properties and an absolute interest in some bonds and decrees for money. This was a case of the year 1863. Under the Mitakshara Law, if the brothers were joint, the minor brother would have taken the whole estate. In the present case there is no question of a joint estate.

13. In Lalla Mohabeer Pershad v. Kundun Koonwar (1867) 8 W.R., 116, which was also a Shahabad case, decided in 1867, a childless Jain widow claimed her husband's share of the property as hers under the law regulating succession among the Jains, whether the family was divided or undivided. The claim was opposed on the ground that the family was undivided. Peacock. C.J., and L.S. Jackson, J., held that there was no sufficient evidence to show that the law of succession among Jains was different from that of the ordinary Hindu law governing the particular province in which the property was situated and which was the law of the Mitakshara. But they held that the property being separate the plaintiff was entitled to it under the Mitakshara Law as heiress of her husband. It does not appear that any evidence of custom was given, but a Vyavastha of a Pundit as to the Jain law or custom and which was in the plaintiffs favour put in. Peacock, C.J., considered that the Vyavastha was not based on any good authority. This case went on appeal to the Privy Council (1873) L.R., 1 I.A., 55, but no question of Jain custom was gone into, and the decision of the High Court was affirmed on the supposition that the Mitakshara Law applied. The case has been much relied on as an authority for the proposition to which we have referred in connection with Mandit Koer's case, and it was cited in that case. Peacock, C.J., said that the custom set up must be proved, and that, if it is not proved, the law of the locality must prevail. He does not profess to deal with the question of law of how the custom is to be proved.

14. In Chotay Lall v. Chunnoo Lall (1878) I.L.R., 4 Cal., 744: 3 C.L.R., 465; L.R., 6 I.A., 15, a Calcutta case, no question of Jain custom was decided, but their Lordships explained the judgment in Sheo Singh Rai's case, upon which it was attempted to put too wide a construction.

15. In Bhagvan Das Tejmal v. Rajmal (1873) 10 Bom., 241, a Jain custom was set up by which a son could be made over to a person in adoption by his relatives when he and his widow were both dead. It was held not to be proved. The judgment contains an account of the Jains and their religious views.

16. In Bimal Dass v. Sikhar Chand, an unreported case, from the Shahabad district decided in 1879 (Ex. 24), a widow inherited immoveable property from her husband and on her death her daughter became the heir. On the daughter's death her husband claimed the property as her heir under a custom peculiar to the Jains. It was held that the custom was not established, and that the succession must go according to the Mitakshara Law. Garth, C.J., said he was satisfied that the Mitakshara Law was observed in questions of inheritance amongst the Agarwalla sect of Jains at Arrah, but this must, of course, be taken as having reference to the evidence in the case and the particular custom pleaded.

17. The cases, therefore, show that for many years past the Jains in different parts of India have been setting up a special custom by which they are regulated in certain matters relating to succession and adoption, and that at least in three cases, two of the Moorshedabad and one of the Meerut district, the right of a Jain widow to adopt a son to her deceased husband without his permission has been established and recognized. The only case in which the right was set up and not established is the Madras case, and that may be distinguished for the reasons already stated. In two cases from Meerut and Shaharanpur it was found that she acquired an absolute right to the self-acquired property of her deceased husband, and in one case from the Patna district it was held by this Court, without drawing any distinction between ancestral and self-acquired property, that no such custom was established among the Jains of that locality.

18. It is broadly argued on the one hand that this case must be decided on the local evidence as to the prevalence of the alleged customs in the Shahabad district without reference to the prevalence of the customs among Jains in other parts of the country; on the other, that the Jains not being Hindus in religion, the Hindu Shastras, which are founded on that religion, cannot be held to apply to them at all; or at all events that, if the Jains are subject to Hindu law, except in so far as it is controlled by their own special custom, the existence of the custom, as regards adoption, must now be taken to be judicially established, and must be recognized without further proof as applicable to all Jains. Neither argument appears to us to be sound or consistent with the rule, as stated by their Lordships of the Judicial Committee in Sheo Singh Rai's case and explained in the case of Chotay Lall. In the latter case they say this: The customs of the Jains, where they are relied upon, must be proved by evidence as other special customs and usages varying the general law should be proved, and that, in the absence of proof, the ordinary law must prevail.' They add that the decision in Sheo Singh Rai's case 'did no more than adopt and affirm the law, to be deduced from a long roll of cases in India, that when the customs of the Jains are set up, they must be proved like other customs varying the ordinary law, and that, when so proved, effect should be given to them.' The mere fact that a man is a Jain is not, they say, enough to establish the conclusion that the ordinary law did not apply to him.

19. There is nothing in what their Lordships say to limit; the scope of the enquiry to the particular locality in which the persons setting up the custom reside. The defendant is not setting up a local custom; his case is that the customs relied on prevail amongst all the Jains who are now a scattered community and that the Arrah Jains have adhered to them. It would be impossible to prove the existence of a custom prevalent amongst the Jains generally by evidence of a purely local character, but, if the general custom is proved, the question might arise whether the Jains of any particular locality had adhered to or departed from it, and that would depend upon the facts and circumstances of each case, We consider, therefore, that judicial decisions recognizing the existence of a disputed custom amongst the Jains of one place are very relevant as evidence of the existence of the same custom amongst the Jains of another place, unless, of course, it is shown that the customs are different. It follows that oral evidence of the same kind is equally admissible. If it were otherwise it would be extremely difficult to say where the line should be drawn, east or west of Arrah, Agra is not very much further on the one side than Calcutta is on the other. Moreover the adoption cases, to which we have referred, were not decided on the evidence of local witnesses only.

20. The plaintiff certainly tried to make the issue a narrow one. His case as stated in the plaint and explained by his pleader was that the Agarwallas of Arrah were not Saraogis at all, but what he called Hindu Jains, who were governed entirely by the Mitakshara Law, and nearly all his witnesses say that the Arrah Agarwallas are not Saraogis. In that view of the case evidence of the customs governing the Saraogis would be immaterial. It is, however, abundantly proved, and the fact is not now disputed, that the terms Jain and Saraogi are synonymous, all Saraogis being Jains, and all Jains being Saraogis, except perhaps in so far as that term may be used to distinguish the laity from the priesthood.

21. The defendant has, apart from the local witnesses, examined on the question of custom a great number of witnesses residents of the districts to the west of Arrah and extending up to Delhi and Kurnal, and also witnesses residing in Calcutta, Moorshedabad and Gaya to the east of Arrah. These include persons of the Agarwalla, Choreewal, Khandwal and Oswal sects of Jains. Many of them are persons of position and independence not likely to be induced to come forward and give false evidence. The defendant has also examined eight witnesses now non-residents of Arrah. Of these one resides at Agra, one at Paniput, three at Famchal, and three at Calcutta. We agree with the Subordinate Judge that the evidence greatly preponderates, both in quantity and value, as to the existence of the custom that a sonless Jain widow can adopt a son to her husband without his permission or the consent of his kinsmen. Taken in connection with the decisions to which we have referred we think it is sufficient to establish that custom.

22. The evidence of the witnesses examined for the defendant may be said to be unanimous on the point, and shows that there is in this. respect no difference in the custom of the four classes of Jains mentioned above. There are no doubt some minor differences, as to whether the boy must be adopted from the same Gotra, as to the ceremonies observed, as to whether the members of the different classes can intermarry or eat together, and as to the distinction as regards customs and ceremonies between the members of the different classes who are Vaishnabs or orthodox Hindus, and those who strictly adhere to the religious views of the Jains. These differences may, however, very well exist at different places without affecting the uniformity of the custom, It is said that many of the witnesses who give instances of adoptions by Jain widows at Arrah or elsewhere speak from hearsay and cannot also say whether the adoptions were made with or without permission. It would not be reasonable to expect definite evidence on the latter point. If no permission is necessary it is not likely that there would be any discussion on the question whether permission was or was not given. It was as easy for the plaintiff to show that permission was given in any particular case as for the defendant to show that it was not given, but I think the only instance in which it is distinctly said that permission was given is in the adoption by Musstt. Tuktuk Koer at Arrah, and that appears from the evidence of the defendant's witness, Sheo Pershun Lall. As, however, his daughter had married the adopted son, it was perhaps too much to expect that by saying that the adoption was without permission, he would shut every loophole of escape if the custom to which he spoke was held not to be proved and the adoption was afterwards disputed. As Musstt. Tuktuk's husband died in 1843, and the adoption does not appear to have been made till about 1887, it is not very likely that it was made in pursuance of permission. We have no doubt that a widespread belief in the custom existed and was acted on, and it is a strong and singular circumstance that in the only three instances in this part of India in which an adoption by a Jain widow appears to have been disputed, the adoption was upheld by the Courts on the ground that the husband's permission was not necessary.

23. We see also no reason to dissent from the decision of the Subordinate Judge that a childless Jain widow acquires by the other custom alleged an absolute right to her husband's property when it is his separate property, and it is not necessary to go any further in the present case. There is in the evidence no reason for drawing any distinction between ancestral and self-acquired property, and we see no ground for distinction. We do not, however, consider that the two customs must stand or fall together. They seem to us quite independent. The custom by which the widow can adopt without her husband's permission does not in any way depend upon the nature of the estate which she takes from her husband. Whether she took an absolute or qualified estate, the evidence is uniform that the adopted son acquires the same right to the property as her husband had, although there is some slight difference of opinion as to the extent of the control which she may retain over it. Even, therefore, if this custom fails, Bhagwan Das, if adopted, acquired a good title to the properties. The facts in this case are very similar to those in Sheo Singh Rai's case, although there is no connection between them either in point of time or place. Here, as there, the widow, notwithstanding the adoption, reserved to herself the estate, but here she subsequently made it over to her adopted son under a deed of gift. It is not necessary to determine in this case any more than in Sheo Singh Bad's, whether the effect of the adoption was to divest the widow, and it is immaterial, if there was an adoption, whether Bhagwan took as adopted son or under the deed during the life-time of Misri Koer.

24. It is, however, very strongly contended for the appellants that the custom of the Jains, whatever they may be in other places, did not apply to the Jains of Arrah who are governed in all matters of succession and adoption by the Mitakshara Law, and that the conduct of Jinwar and other members of the family shows that the alleged customs did not prevail. We see in the evidence no sufficient foundation for the contention that there is any difference in the customs observed at places east and west of Cawnpur. The Arrah witnesses and some witnesses of other places were examined at great length as to the ceremonies observed on death, marriage, adoption and other occasions, and as to the worship of Hindu deities with a view to show that there was no real difference in those respects between the Jains and the orthodox Hindus. We think it is unnecessary to enter upon any criticism of that evidence. It may be conceded that in ceremonials the practices vary at different places and even in Arrah itself, and that the views of some Jains are much stricter than those of others. It may be conceded also that their ceremonies in many respects approximate pretty closely to those of the orthodox Hindus, although this is not confined to Arrah itself. The reason is pretty obvious. The Jains have no written shastras and no priests of their own. Brahmans are called in to officiate at their ceremonies, and it is only natural that they should perform the ceremonies with which they are best acquainted. The whole matter may be pretty well summed up in what the defendant said when asked according to what custom the marriage would be performed, if the bridegroom was a Jain and the bride a Vaishnab. His reply was that the officiating priest was a Hindu Brahmin and does what he pleases, and that he would do so even if the bride and bridegroom were both Jains. But there is this fundamental distinction between the Jains and the orthodox Hindus that their belief in the nature of the future state is wholly different; a son among the Jains confers no spiritual benefit on the state of his deceased father, and the Jains do not believe in or observe the Sradh ceremony as it is observed by the orthodox Hindus. Some Jains also may worship or do homage to some of the Hindu deities, but they have their separate temples which no orthodox Hindu would enter, and their separate deities whom no orthodox Hindu would worship. Mere approximation in the observance of ritual or ceremonies does not, therefore, do away with the difference which exists between them, and we see nothing to differentiate the Jains at Arrah from the Jains elsewhere, as regards the observance of any customs peculiar to them or indeed in any other respect, save perhaps this that where the Jain communities are larger and more connected there may be less of the ordinary Hindu ritual. Of the plaintiff's Arrah witnesses four are Agarwalla Jains and three are Agarwalla Vaishnabs, and all but one are related to or connected with him. They state generally that the Arrah Agarwallas are governed in matters of succession and adoption by the Mitakshara Law, but their statements are contradicted by the evidence of the defendant's witnesses who are more numerous and on the whole more independent. They give some instances of sales or alienations by widows, but in only four instances are the deeds produced. These are (1) the will of Sriuns Koer in 1884 (Ex. PP), (2) a kobala by Mundir Koer in 1882 (Ex. HH), (3) a kobala of Tuktuk Koer and another in 1873 (Ex. Z) and (4) another kobala of hers in 1892 (Ex. V); They also give some instances of adoptions by widows, but these are open to the observation that some of them are comparatively recent and the widow is still alive. This is so in the case of Binda Bibi, Mohan Koer and Tuktuk. In the two former cases the witnesses can only say they heard there was no permission or that they never heard of any permission and they could not be expected to say any more. Tuktuk's case has been already referred to. One witness Nanuk Chand says he was himself adopted by a widow some 13 years ago, but his position is not a very high one. Two other adoptions by Mahdun Bibi and the widow of Mohan Koer are spoken to as having taken place long ago, but the evidence as to the former is very vague, and as to the latter the evidence of the adopted son, who is said to be still alive but old, would have been the best evidence. It is not of course to be expected that there would be many instances of Jain widow adoptions in a small community like that of Arrah. The evidence on the whole leads us to the conclusion that the customs applied to the Jains at Arrah just as much as the Jains elsewhere, and Misri Koer was evidently of the same opinion in 1857 when she made and registered her will.(Ex. D).

25. It is said, however, that the conduct of Bhagwan and other members of the family is opposed to this conclusion, and shows that the Mitakshara 'Law applied in every respect. In 1891, at the time of the census, a memorial (Ex. l) was submitted to the Bengal Government representing that the Jains ought not to be classed in the returns as a people separate from the Hindus. This was signed by Bhagwan, his son, the defendant, the plaintiff's witnesses Nos. 3, 5 and 10, and the defendant's witnesses Nos. 3, 8, 22, 27, 67 and 68. It represents that there was no difference between the Jains and the Hindus except on the matter of religion, that they observed the Sradh and other Hindu ceremonies, that they never had or required any separate law of inheritance, and that, if they were going to be distinguished from the Hindus, complications might arise in the disposition of their property. No doubt they all agreed in the desire that they should not be classed separately from the Hindus as a race, but a perusal of the evidence will show that they cannot be fixed with any knowledge of the contents of the memorial which was written in English. It is not true that they observed the Sradh in the sense in which the Hindus observed it, and it was quite unnecessary to say anything about the law of inheritance. The persons who got up the memorial have not been examined, and it is easy to understand how signatures were obtained, only the direct object of the memorial being made known.

26. Exhibits 12,13, 14 and 15 and H, all of the year 1893, have been referred to as showing that Bhagwan Das and the defendant always claimed to be subject to the Mitakshara Law, but the defendant admits being subject to the Mitakshara Law except as to special matters which were regulated by the customs of the Jains. There was no necessity in the matters to which those exhibits relate to mention any custom. Then Jinwar Das's first cousins Jago Mohan and Mansubrit Singh were joint in estate. Jago Mohan died in 1847, leaving a widow Kanta Koer, and after his death Mansubrit got his name registered as proprietor of certain of the joint properties ignoring Kanta Koer. So also Jinwar and his brother Munni Lall were joint. Munni Lall died in 1840 leaving a widow Sriuns Koer. In 1845 Jinwar got his name registered as proprietor of certain properties ignoring Sriuns. It is said that these acts are opposed to the alleged custom according to which Kanta Koer and Sriuns Koer would have respectively taken their husband's share. That would be so in appearance at least if the custom extended to the husband's undivided as well as to his separate property, a question which we do not consider it necessary to decide. The acts can be taken at the most as an indication that the rule of survivorship prevailed. But whatever happened during the lifetime of the surviving brother, it is clear that after his death his widow recognized the widow of the other brother as entitled to a share. In 1851 Kanta Koer, Tuktuk Koer and their mother-in-law Munder Koer came to an agreement, and divided the property which belonged to Jago Mohun and Mansubrit into three shares each taking one. So also after Jinwar's death Misri Koer never denied the right of Sriuns Koer to a half share. In 1853 she got her name registered for her husband's half share only, stating that the other half belonged to Sriuns. The latter it is true was not satisfied and wanted the whole on the ground that Misri was a childless widow. The two ladies were for some time on bad terms, and in 1864 Misri brought a suit for partition, the result of which we do not know. The other three ladies also got involved in some litigation, but it is unnecessary to follow all their squabbles as we think they have no bearing on the case. In the proceedings to which we have been referred there was no necessity to refer to or rely on any customs. It is sufficient to say that after the death of Kanta and Mander, Tuktuk seems to have got the shares which they held. In 1870 Sriuns got her name registered for the half-share which Jinwar and Bhagwan always admitted to be hers. There is no trace of any further disagreement after, that, and in 1884 Sriuns made a will by which she gave certain property to Bhagwan Dass and the rest to her daughter's sons. She, like Misri, asserted a right to deal with the properties as she liked.

27. On the first question we find that Misri Koer could, according to the Jain custom, adopt a son without her husband's permission, and that she took an absolute right to his separate property.

28. On the second question we have no doubt that Bhagwan Das was actually adopted by Misri Koer, that the adoption was to her, husband, and that Bhagwan acquired a good title to the properties. Whether he did so at once on the adoption notwithstanding that Misri Koer professed to retain her right to the properties, it is unnecessary to decide. In the documents D, E, F, and G, executed and registered by Misri Koer in the years 1857, 1866, 1871 and 1877, she positively asserts the fact of the adoption and treats him as her adopted son. She first makes a will in his favour--then she erects a Jain temple, endows property to it, and appoints Bhagwan to be the manager. Then she makes over to him absolutely as adopted son money and ornaments, and finally she makes over all her property. The evidence shows that Bhagwan was brought from Benares when about 8 years old, and that he lived afterwards with Misri, severing entirely his connection with his own family. He was of Vaishnab parents, and in some of the deeds above referred to she says she brought him up as a Saraogi, which was her religion and that of her husband. Ex. C shows that the parents parted with the boy; and when there was a bond fide intention to adopt, there is not the least ground for supposing that the adoption ceremony considered necessary was not performed. Three witnesses swear that such a ceremony did take place in their presence and the Subordinate Judge believed them. One of them is Sundar Das, a man of 70, whose sister was married to Jinwar Das, and who was certainly in a position to know. The other two were also men of mature age at the time of the adoption. On the plaintiff's side there is only one witness, whose age might have been 10 at the time of the adoption; the others were all infants or unborn. There is not even the negative evidence of persons who could say that they never heard of such a ceremony, although they must have known of it, if it had taken place.

29. It is said, however, that the adoption, if any, was to Misri herself and not to her husband. There is not a suggestion in the voluminous evidence in this case that when a Jain widow adopts without permission she adopts to herself only. Misri herself declared more than once that she made the adoption to perpetuate the name and prestige of herself and her husband, and that is a pretty clear indication of what her intention was. The fact that after the adoption she still considered herself the owner of the properties affords no reasonable indication to the contrary, and the widow in Sheo Singh Rai's case did the same. The transaction must be looked at from the point of view of those who were concerned in it, even if it was a mistaken view. It is true that in a plaint of 1875 (Ex. 20) Misri described herself as widow and heir of Jinwar, that in 1877 (Ex. 37a) Bhagwan described himself as adopted son of Misri Koer, widow and heir of Jinwar Das, and that he gave himself the same description in certain plaints filed in 1875, 1882 and 1883 (Exhibits 34-36).

30. In a deposition of 1883 (Exhibit 28) he calls himself, however, the son of Jinwar Das, and we find him so described in an earlier document of 1874 (Ex. BB). These are not, we think, matters of much importance, especially when Misri Koer considered, rightly or wrongly, that the adoption did not at once divest her,

31. We must admit that we regard with considerable suspicion the evidence of the permission to adopt given by the witnesses, who say they were present at the adoption ceremony. It looks like an afterthought to fill up what might be a weak place. It is evidence which could not be contradicted, and it is very significant that Misri, although she several times mentioned the adoption, never referred to it as having been made with permission. This is not evidence upon which we should be prepared to act, if evidence is necessary; but the matter is immaterial in view of the other conclusions at which we have arrived, and no Court would we think put a defendant to express proof of permission in respect of an adoption made more than 40 years ago and recognized ever since.

32. As regards the third question, Jugmandil, the plaintiff's father, lived next door to Misri Koer; their houses were only separated by a wall, and Jugmandil must have been, according to the plaintiff's account, Jinwar's nearest male relative. The plaintiff's mother's evidence shows that she and Misri were on good terms, and that they used to frequent each other's houses. Sundar Das swears that Jugmandil was present at and took an active part in the adoption ceremony, and in this respect we see no ground for disbelieving him. Misri was not making a surreptitious adoption, and Jugmandil, who was himself a Saraogi, may be assumed to know that she was not making an adoption personal to herself. Jugmandil must have known of the adoption, and the probability is extremely strong that he was, as Sundar Das says, present at the ceremony. Bhagwan was married in about the year 1862 to a girl of the Gya District. Madho Pershad, who is the brother of the girl's father, says that he negotiated for the marriage, that Jugmandil took an active part in the negotiation, and that Bhagwan was married as the son of Jinwar Das. Jugmandil was not present at the marriage which took place some nine or ten months after the betrothal, as he had then gone on pilgrimage. We see no reason to disbelieve the evidence of Madho Pershad, and there is no improbability about it. In 1866, when Misri endowed property to the Jain temple and appointed Bhagwan manager, Jugmandil was one of the persons appointed to be a punch, and who were to take the management out of Bhagwan's hands, if he misconducted himself. We cannot suppose that Judgmandil was ignorant of this. The evidence shows that Bhagwan acted as Samdhi [Dadsali Samdhi--Master of the ceremony--REP.] at the marriage of the plaintiff and his sisters and we believe it. He could not have done so in any capacity other than that of Jinwar's son. There is also evidence that Bhagwan acted as Kandhya [Kandhya--carrier or bearer.--REP.] at the funeral of members of the family, that he observed mourning ceremonies when any member of the family died, and that when he died the plaintiff and others went into mourning in the same way as they would have done for a relative. We have no doubt that he was throughout recognized as the adopted son of Jinwar and not merely as the adopted son of Misri Koer, that he ceased to be a gotra in his own family, and became a gotra of Jinwar. We entirely disbelieve the evidence for the plaintiff that Bhagwan was in Misri's house as a gomastha or a manager of her property. The evidence would go so far as to show that he was not even adopted by Misri. There is a mass of evidence, a good deal of it beyond suspicion, that Bhagwan was generally known and regarded as the adopted son of Jinwar. On these facts, especially the fact that he took part in the adoption ceremony, and in the marriage of Bhagwan, we think Jugmandil would have been estopped from denying the adoption. At all events no Court would listen to his objection that the adoption was invalid because made without the permission of Misri's husband, or call upon the defendant after 40 years to give proof of that fact. The plaintiff cannot be in any better position than his father.

33. We must hold also that the suit is barred under Article 129 of the Limitation Act, IX of 1871, which provides that a suit to set aside an adoption must be brought within 12 years from the date of the adoption, or (at the option of the plaintiff) the date of the death of the adopted father. That Act was passed by the Governor-General in Council on 24th March 1871, but was not to apply to suits instituted before the 1st of April 1873. It was repealed by Act XV of 1877 which came into force on the 1st of October 1877, but the repealing Act did not revive any rights which were barred under the Act repealed. Jugmandil died on the 15th October 1875. The plaintiff was born on the 29th July 1873, and attained majority on the 28th July 1894.

34. The case of Jagadamba Chaodhrain v. Dakhina Mohun Roy (1886) L.R. 13 I.A., 84: I.L.R., 13 Cal., 308, was brought while the Limitation Act (IX of 1871) was in force. Their Lordships, speaking of Article 129, say that the rational and probable principle to apply to the Act is that of allowing: a moderate time within which such delicate and intricate questions as those of adoption shall be brought into dispute, and that the article must be read as striking alike at all suits, in which the plaintiff cannot possibly succeed without displacing an apparent adoption by virtue of which the defendant is in possession. They add that the expression set aside an adoption is and has been for many years applied to proceedings which bring the validity of an alleged adoption under question, and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature. In that case the plaintiff did not sue to set aside an adoption, but for the recovery of land of which the defendant was in possession as adopted son. It was held that the form of pleading was immaterial, and that it was enough, if the case raised the issue of the validity or invalidity of an adoption.

35. The case of Mohesh Narain Munshi v. Taruck Nath Moitra (1892) L.R., 20 I.A., 30: I.L.R., 20 Cal., 487, was brought when the present Limitation Act (XV of 1877) was in force, and it raised the question of the validity of an adoption made in 1851. Nothing appeared to turn on the question whether the defendant was or was not in possession as adopted son while time was running under the Limitation Act IX of 1871, but it was found that the adoption was openly and constantly asserted, and that the plaintiff had full knowledge of it, and had acknowledged or acquiesced in the assertion of the right. It was held that the suit was barred under Article 129, Act IX of 1871. Their Lordships say the plaintiff had thus upwards of two years after March 1871, within which he might have brought his suit to set aside the adoption, and had notice under the statute that the period of limitation of twelve years from the date of the adoption would be applicable on the expiry of that time. Accordingly, on the 1st April 1873, no such suit having been raised, the plaintiff's right of action was barred.'

36. This is not, we must admit, such a strong case as that, but we have found that the adoption was an adoption to Jinwar and not to Misri Koer alone, and that Jugmandil knew of it and assisted in it, and we think that the fact that Bhagwan did not get actual possession until 1877 when Jugmandil was, dead, makes no difference.

37. It is argued that the plaintiff cannot be barred as he claims as heir of Jinwar Das on the death of his widow, and that he does not claim through his father Jugmandil, that he was not born till after the 1st of April 1873, and could not before that date have brought a suit to set aside the adoption. But, if the time for a suit to set aside the adoption was running, still less if it had expired, before the plaintiff was born, he would not get the benefit of the extended time allowed to minors under the Limitation Act. Under Article 129 time in this case commenced to run from the date of the adoption. A similar contention was raised in the case of Siddhessur Dutt v. Sham Chand Nundun (1875) 23 W.E., 285, and overruled. The decision of the Subordinate Judge is in our judgment right, and we dismiss the appeal with costs. There is an issue in the case as to which of the properties were ancestral and which self-acquired. The matter was not considered in the lower Court nor was there any discussion upon it before us.

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