Judgement Appeal from a decree of the High Court (March 5, 1908) reversing a decree of the Subordinate Judge of Saharanpur (November 8, 1905) and dismissing the appellants suit. The decree appealed from declared that the respondent Jambu Parshad was adopted by Asharfi Kunwar, since deceased, and that his adoption was valid. The appellant sued as the nearest reversionary heir of Lala Mittar Sain, deceased, a wealthy banker and rais of Saharanpur and of the Jaini caste, who died in 1890, leaving two widows and a daughter, but no male issue. The senior widow, Asharfi Kunwar, was living at the date of suit, and was defendant No. 1, the respondent being defendant No. 2. The plaint alleged that Asharfi had given out on April 14, 1900, that she had adopted the respondent Jambu Parshad, and had on that day executed a deed of adoption in his favour. It submitted that Asharfi had no power alone to adopt in the lifetime of her co-widow that the respondent was not given in adoption by any one with legal power to do so and that owing to the respondent being married and twenty-three years old his adoption was invalid. It prayed that it might be declared that the adoption of Jambu Parshad alleged by Asharfi Kunwar never in fact took place, that it was quite illegal and opposed to Hindu law and custom, and that the document of April 14, 1900, was null and void as against the plaintiff. The written statement contended that " among the Jains adoption is no religious ceremony and that under the law and custom there is no restriction of age or marriage among them." The fourth issue was, "How does the fact that before the alleged adoption Jambu Parshad had been married and how does his age at the time of adoption affect the claim? Whether according to custom or law such an adoption could be validly made." Upon this issue the Subordinate Judge held that "in these provinces according to the doctrine sanctioned by the Benares School of Hindu Law a married man of the three regenerate classes cannot be adopted whether he be of the same gotra as the adopter or not." Also " that the existence of a custom of -adoption of a married man by Agarwal Jains and specially by a widow (for here the adoption has been made by a widow without the consent of the nearest reversionary heir of Mittar Sain) has not been proved by the defendants." The Subordinate Judge also recorded that it was admitted that " in these provinces adoption was made in the Dattaka form only by the Agarwal Jainis." The High Court, on the other hand, said that " in view of the ruling of their Lordships of the Privy Council that in Jain cases it rests on the party alleging a custom or practice at variance with that of orthodox Hindus to prove his allegation we have treated this burden as one which lay on the defendant-appellant. This onus he has in our judgment satisfied, and we remain of the opinion which we expressed in Manohar Lal v. Banarsi Das (( 1907) I. L. R 29 Allah. 495.) that the marriage of a Jain is no bar to his adoption." The decision of the case turned upon the evidence of custom, and evidence relating thereto was adduced by witnesses from Jaipur and from the five districts of Saharanpur, Muzaffarnagar, Meerut, Delhi, and Karnal. The Subordinate Judge said of the Jaipur evidence, " Twenty-one witnesses were examined by commission at Jaipur and one at Khurja in the district of Bulandshahr by the defendants. The Subordinate Judge said of the Jaipur evidence, " Twenty-one witnesses were examined by commission at Jaipur and one at Khurja in the district of Bulandshahr by the defendants. Their evidence, it is admitted, does not prove anything in favour of the alleged custom." They " say that there, with the consent of heirs, turban is tied round the head of a relative of a deceased with the consent of his relatives, and this is adoption." The High Court said that the evidence of the Jaipur witnesses was relied on by the defendants in appeal and "has some value as shewing that Agarwala Jains, in the Jaipur State, which borders upon the Agra district, adopt married men," but that the ritual " is unlike that which prevails amongst Jains in this province." In order to establish the alleged general custom thirty-six witnesses apart from those of Jaipur were examined by the respondent from the five districts mentioned above. They gave forty-three instances of alleged adoptions of married men by Agarwal Jains, both male and female. Two were of the respondent and his brother and were still sub judice. Three were admitted to have been not proved. There remained thirty-eight whose names were given in a list by the First Court and numbered seriatim. As to six of them there were concurrent findings that they were not proved. Of the remaining thirty-two instances eight came from the Saharanpur district, nine from that of Muzaffarnagar, eleven from that of Meerut, while three were produced from Delhi and the Delhi district, and one from the Karnal district. The Delhi instance was a very recent one, that of Jaggi Mal, admittedly married, but adopted in spite of protests being made against it. In reply to the respondents evidence relating to these numerous instances twenty-five witnesses were called by the appellant from many parts of India, including Delhi, Meerut, Rampar, and Saharanpur, all of whom denied all knowledge of the alleged custom. The first four were from Delhi and said that no married boy had been adopted at Delhi except in the recent case of Jaggi Mal against which they protested. The Subordinate Judge held that the evidence of custom in derogation of the ordinary law must be clear, unambiguous, and satisfactory, shewing that those who followed it believed that they were acting in accordance with law. The Subordinate Judge held that the evidence of custom in derogation of the ordinary law must be clear, unambiguous, and satisfactory, shewing that those who followed it believed that they were acting in accordance with law. He found that the evidence given was " neither satisfactory nor is it above suspicion and in the case of several instances the witnesses have perjured themselves." To prove a general custom he considered that the defendants " ought to have examined witnesses from different parts of the country, such as Benares, Arrah, Jaipur, Delhi, and some other such important places." Not a single witness, he remarked, from Benares or Arrah had been examined, and the presumption was that the evidence of witnesses from those places would not have been in favour of the defendants. Jaipur witnesses had been examined, but it was admitted that their evidence was not in defendants favour. The witnesses from Delhi and Karnal did not speak of custom, and there was a strong feeling in Delhi City panchait against the adoption of a married man. It could not then be said that it had been clearly and satisfactorily established that the custom of adopting a married man existed in Delhi. The remaining witnesses came from Muzaffarnagar, Saharanpur, and Meerut, and certain kasbas of those districts. They, as already said, were friends, &c., of the defendants, and these places were not important places of Jain Agarwals. It could not be said that the defendants had proved any general custom or even local custom. In 1907, long after the Subordinate Judges judgment was given, the High Court at Allahabad, in the case of Manuhar Lal v. Banarsi Das(l), found (again reversing the finding of the lower Court) on the evidence therein recorded that twenty-three cases of adoption, of which nineteen had been put forward again in this litigation, had been proved, and in 1908, after considering the evidence in this case, it saw " no reason for coming to a different conclusion." In this case it considered that the thirteen additional cases put forward by the respondents were also proved, and that their number was sufficient evidence of the legality of these adoptions, and held in this case, as in Manohar Lall’s Case (1), that amongst the Jains marriage is no bar to adoption. The material passage in the High Court judgment (see I. L. K. 30 Allah. The material passage in the High Court judgment (see I. L. K. 30 Allah. 197) is as follows — Not including the Jaipur instances, we have thus established to our satisfaction upwards of thirty instances of the adoption of married boys amongst the Jains in the Saharanpur, Muzaffarnagar, Meerut, Delhi, and Karnal districts. The evidence given in support of sixteen of these instances is unrebutted. In thirteen instances the adopted sons themselves gave evidence in proof of their adoption and shewed that they had got the property of their adoptive fathers. In five instances either the adoptive or the natural father gave evidence in support of the adoption. The proof in some instances is stronger than in others, but we think that in all, with the exception of those which we have ejected as not satisfactorily proved, it is sufficient to satisfy an unprejudiced mind beyond reasonable doubt. The number of instances so proved is remarkable in view of the smallness of the Jain population in this province. Ordinarily unmarried boys would be selected for adoption, the choice of a married boy being the exception. We pointed out in Manohar Lal v. Banarsi Das (I. L. R 29 Allah. 495.) that there is no restriction in the matter of age to be found in Manu or the Smritis and that the adoption of a married man, of whatever age, is not forbidden by the Mitakshara, and that there is no religious significance attached by the Jains to adoption. It is not the case of the plaintiff-respondent that the rules of orthodox Hindus in the matter of adoption are applicable to the Jains. This case could not be set up seeing that the ceremonies of investiture with the sacred thread and of tonsure are unknown to the Jains, and that adoptions with the Jains are purely secular matters, while with the Hindus proper they have a religious significance. As we have pointed out, their Lordships of the Privy Council (Radha Mohun v. Hardai Bibi, ( 1899) L. R. 26 Ind. Ap. 113.) exposed the infirmity of the fundamental proposition Laid down by Mr. Justice Mitter, that the institution of adoption was an essentially religious institution. We have shewn that in several respects the practice prevailing amongst the Jains as regards adoption materially differs from that of Hindus proper. Ap. 113.) exposed the infirmity of the fundamental proposition Laid down by Mr. Justice Mitter, that the institution of adoption was an essentially religious institution. We have shewn that in several respects the practice prevailing amongst the Jains as regards adoption materially differs from that of Hindus proper. For example, it has been held that amongst them a widow is competent to adopt without the sanction of her husband Maharaja Govind Nath Roy v. Gulab Chand. ((1833) 5 S. D. A. 276.) In Sheo Singh Rai v. Dakho (( 1878) I. L. R. 1 Allah. 688.) it was held that a sonless widow can adopt a son without the authority of her husband. In Lakhmi Chand v. Gatto Bai (( 1886) I. L. R. 8 Allah. 319.) the authority of a Jain widow to make a second adoption on the death of the child first adopted was established. Again it has been held that a Jain widow may adopt a daughters son. In Bombay, indeed, it was held that according to the Hindu law in force in that Presidency the adoption of a married Asagothra Brahman was not prohibited Dharma Dagu v. Ram Krishna Chimnaji. (( 1885) I. L. R. 10 Bomb. 80.) It is only when we come to comparatively modern works such as the Dattaka Mimansa and Dattaka Chandrika that we find restrictions imposed on adoption. These restrictions were undoubtedly the work of the Brahmanical priests of later times. Their Lordships of the Privy Council in the case of Radha Mohun v. Hardai Bibi (1), to which we have already referred, pointing to the antiquity of the Smritis as compared with the Dattaka Mimansa and Dattaka Chandrika, observe that they " had occasion in a late case to dwell upon the mixture of morality, religion, and law in the Smritis Rao Balwant Singh v. Rani Kishori. (( 1898) L. R. 25 Ind. Ap. 54, 69.) They had to decide whether a prohibition on alienation of property away from a mans family, certainly based on religious grounds, had a purely religious or also a legal bearing." They then said " All these old text-books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for positive laws. 54, 69.) They had to decide whether a prohibition on alienation of property away from a mans family, certainly based on religious grounds, had a purely religious or also a legal bearing." They then said " All these old text-books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for positive laws. In the preface to his valuable work on Hindu Law Sir William Macnaghten says It by no means follows that because an act has been prohibited it should therefore be considered as illegal. The distinction between the vinculum juris and the vinculum pudoris is not always discernible. They now add that the further study of the subject necessary for the decision of these appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion, morality and law, lest foreign lawyers, accustomed to treat as law what they find in authoritative books, and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity never contemplated by the original law-givers." This is weighty and suggestive language. Again treating of the weight to be attached to the Dattaka Mimansa and Dattaka Chandrika, their Lordships, at p. 132, referring to the view expressed by Knox J. that the authority of these works was open to examination, explanation, criticism, &c, while not accepting this view, observe that " so far as saying that caution is required in accepting their glosses where they deviate from or add to the Smritis their Lordships are prepared to concur with the learned judge." Now, in view of the fact that the Jains dissented from Hinduism more than twenty-two and a half centuries ago, at a time when, so far as the authorities go, no trace of the restriction of marriage existed in matter of adoption, and seeing that in primitive times the practice of adoption had no religious basis ; also in view of the fact, which is admitted, that the practice of adoption amongst the Jains is necessarily unlike that observed amongst the Brahmans and Vaishiyas, as we have already pointed out, it might be thought that the onus of proving the existence of a restriction upon adoption in the case of the Jains such as prevails amongst Hindus proper lay upon the party making the assertion. In view, however, of the ruling of their Lordships of the Privy Council that in Jain cases it rests on the party alleging a custom or practice at variance with that of orthodox Hindus to prove his allegation, we have treated this burden as one which lay on the defendant-appellant. This onus he has in our judgment satisfied, and we remain of the opinion which we expressed in Manohar Lal v. Banarsi Das (I. L. R. 29 Allah. 495.) that the marriage of a Jain is no bar to his adoption. De Gruyther, K.C., and Cowell, for the appellant, contended that the ordinary Hindu law of the Mitakshara applicable to the three twice-born castes applied also to the Jains except so far as it was satisfactorily proved on any particular point to be controlled by custom. Reference was made to Bhagvandas Tejmal v. Rajmal (( 1873) 10 Bomb. H. C. B. 241, 247, 251, 253.); Chotay Lal v. Chunno Lal. (( 1878) L. R. 6 Ind. Ap. Reference was made to Bhagvandas Tejmal v. Rajmal (( 1873) 10 Bomb. H. C. B. 241, 247, 251, 253.); Chotay Lal v. Chunno Lal. (( 1878) L. R. 6 Ind. Ap. 15, 28.) In fact it is finally settled that the law applicable to Jains is the Hindu law, that cases amongst Jains must be decided exactly as if they were orthodox Hindus, amongst whom clear proof of custom outweighs the written text of the law see Bachebi v. Makhan Lal (( 1880) I.L. R. 3 Allah. 55, 79.); Shimbhunath v. Gayanchand (( 1894) I. L. R. 16 Allah. 379, 383) ; Ambahai v. Govind (( 1898) I. L. R. 23 Bomb, 257.) ; Mandit Koer v. Phoolchand Lal (( 1897) 2 Calc. W. N. 155, 158.); Rani Bhagwan Knar v. Jogendra Chandra Bose(( 1903) L. R. 30 Ind. Ap. 249.); Peria Ammani v. Krishnasami.(( 1892) I. L. R. 16 Madr. 182, 184.) By the ordinary Hindu law a married man cannot be adopted even if of the same gotra as his adoptive father. The only exception to the exclusion of married men as capable of adoption is to be found in the Mayukha, c. 4, s. 5, 19. Reference was made to Maynes Hindu Law, 7th ed., pp. 57, 129, 132, and to Sivanananja Perumal Sethurayar v. Muttu Ramalinga Sethurayar (( 1866) 3 Madr. H. C. 75.) and Pichuvayyan v. Subbayyan. (( 1889) I. L. R. 13 Madr. 128.) The voluminous evidence in the case relative to a custom amongst Jains to adopt a married man was then examined, and it was contended that it was insufficient to establish a definite, uniform, and persistent usage to that effect so long and invariably acquiesced in and acted upon as to have acquired the force of law. To be of any avail it must have the effect of giving to a married Jain by force of a contract inter partes and apart from the consent of heirs the status and preferential heritable rights of a Hindu adopted son. It did not establish a custom under which the senior widow of a Jain can adopt a married boy without the concurrence of her co-widow. Not a single priest had been examined see on this point Chandika Bakhsh v. Muna Kuar. (( 1902) L. R. 29 Ind. Ap. It did not establish a custom under which the senior widow of a Jain can adopt a married boy without the concurrence of her co-widow. Not a single priest had been examined see on this point Chandika Bakhsh v. Muna Kuar. (( 1902) L. R. 29 Ind. Ap. 70.) Sir R. Finlay, K.C., Ross, Dube, and Motilal Nehru, for the respondent, contended that on the evidence the High Court had rightly decided that his adoption was established and that it was valid according to the law and custom by which Jains are governed. The adoption of a married man has been allowed in Madras, Bombay, and in the Punjab. [De Gruyther, K.C. Not in the Punjab.] The Jains differ from the twice-born classes in this respect, that they do not observe the upanayana or investiture with the sacred thread which completes affiliation. Reference was made to the Dattaka Chandrika, Stokes Hindu Law Books ( 1865), p. 644, s. 2, v. 32 ; Nitra Daye v. Bholanath Doss. (( 1853) Beng. S. D. A. 553.) The High Court puts the case too strongly against the respondent in respect of the two cases in 5th and 6th Indian Appeals— see Sheo Singh Rai v. Dakho (( 1878) L. R. 5 Ind. Ap. 87, 98, 107.) and Chotay Lal v. Chunno Lal (L. R. 6 Ind. Ap. 15, 28.)— for those cases related to the law of inheritance and to the adoption of a daughters son by a sonless widow. The Jains had separated from orthodox Hindus long before this develop ment of their law and consequently were not bound by it. As to the circumstances under which they separated reference was made to Dr. Hoernles presidential address to the Asiatic Society of Bengal in 1898, pp. 39, 40, and 42, and Bhagvandas Tejmal v. Rajmal. (10 Bomb. H. C. R. 241, 249.) Adoption amongst Jains is a purely secular transaction, and is not affected by those religious considera tions which in later times were unduly exaggerated in regard to adoption amongst the Hindus of the twice-born classes. Reference was made to Maynes Hindu Law, 7th ed., pp. 181, 132, 135, 172, 179, 192, 193; Golapchandra Sarkars Tagore Law Lectures on Adoption, pp. 359, 361-364, 367, 452-454; Jollys Hindu Law of Partition and Adoption ( 1885), p. 161. Reference was made to Maynes Hindu Law, 7th ed., pp. 181, 132, 135, 172, 179, 192, 193; Golapchandra Sarkars Tagore Law Lectures on Adoption, pp. 359, 361-364, 367, 452-454; Jollys Hindu Law of Partition and Adoption ( 1885), p. 161. If a Hindu doctrine such as that relating to the age and capacity (the Dattaka Mimansa and the Dattaka Chandrika do not mention marriage as a bar) of the adopted child is of very recent development, the presumption is that it does not apply to the Jains, who seceded before the doctrine came into existence, and the evidence given in this case as to custom should be regarded in the light of that presumption, more particularly as the adoptive father and the adopted son are of the same gotra. Reference was made to Maharaja Govindnath Roy v. Gulal Chand ((1833) 5 Sel. Rep. 276.) ; Viraragava v. Ramalinga (( 1883) I. L. R. 9 Madr. 148.) ; Stokes Hindu Law Books, pp. 575, 580; and Ganga Sahai v. Lekhraj Singh.(( 1886) I. L. R. 9 Allah. 253.) De Gruyther, K.C., in reply, contended that on the question of a married man being eligible for adoption under the ordinary Hindu law there was no authority in favour of the respondent, whilst in support of the appellants contention there was the case of Pichuvayyan v. Subbayyan (I. L. R. 13 Madr. 128.) besides cases going back to 1823. See also Stranges Hindu Law (ed. 1830), vol. 1, p. 91, c. 4, on adoption, and vol. 2, p. 87; West and Buhler, p. 1065; Jollys Hindu Law of Adoption, pp. 161, 309, 310; Amrito Lal Dutt v. Surnomoye Dasi. (( 1900) L. R. 27 Ind. Ap. 128.) The established rule is that the upanayana ceremony is a bar to adoption amongst the twice-born classes and marriage in the case of Sudras, See Ganga Sahai v. Lekhraj Singh (3) ; Guru Das Banerjees Hindu Law of Marriage and Stridhan, 2nd ed., pp. 127, 252; Vyavastha Chandrika, pp. 93, 102; Steeles Hindu Law and Castes, p. 23, Nos. 12 and 15. Then as to Hindu law in its entirety being applicable to Jains, see, besides authorities already cited, Maynes Hindu Law, 7th ed., pp. 133, 134, and 183; West and Buhler, 952; Sarkars Law of Adoption, pp. 452, 453. On the evidence it was urged that the alleged custom was not proved. 12 and 15. Then as to Hindu law in its entirety being applicable to Jains, see, besides authorities already cited, Maynes Hindu Law, 7th ed., pp. 133, 134, and 183; West and Buhler, 952; Sarkars Law of Adoption, pp. 452, 453. On the evidence it was urged that the alleged custom was not proved. Very few instances were proved, and were quite insufficient to establish a general custom. See Chandika Bakhsh v. Muna Kuar. (L. R. 29 Ind. Ap. 70.) The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a judgment and decree of the High Court of Allahabad, which set aside those of the Subordinate Judge of Saharanpur and dismissed the plaintiffs suit. The plaintiff sued as the nearest reversionary heir of one Lala Mittar Sain, a member of the Jain Agarwala community, who lived and died in the district of Saharanpur. The defence to the plaintiffs claim was based on the allegation that the defendant Jambu Parshad was the adopted son of the deceased Lala Mittar Sain, adopted by his senior widow after the death of her husband, and it was contended that the title of the adopted son excluded any right that might otherwise have existed in the plaintiff. The First Court decided against the adoption and made a decree in the plaintiffs favour. The High Court held that the adoption had taken place .in fact and was valid in law, and therefore reversed the decision of the First Court. Hence the present appeal. That the adoption took place in fact is no longer in dispute. The sole question which has been seriously argued is whether the adoption was valid in law, the objection to the adoption being based upon the fact that the adopted son was already married at the time of his adoption. So far as the pure law applicable to the case is concerned there is nothing in doubt. There is no longer any question that by the general Hindu law applicable to the twice-born classes a boy cannot be adopted after his marriage, and there is no doubt that the Agarwala Jains belong to one of the twice-born classes. To this rule there is an exception in the case of persons governed by the Mayukha, but that exception has no application to the present case. Other exceptions have been held to exist by custom. To this rule there is an exception in the case of persons governed by the Mayukha, but that exception has no application to the present case. Other exceptions have been held to exist by custom. Again there is no doubt that the Agarwala Jains are governed by the ordinary Hindu law (which for the present purpose means the Mitakshara law), unless and until a custom to the contrary is established. The question in the present case was, and is, whether a custom, applicable to the parties concerned, and authorizing the adoption of a married boy, has been established. This is strictly speaking a 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. But with regard to the relative rights of the parties to the present case, who have had full opportunity of producing whatever evidence they desired to produce, the case was properly dealt with by the High Court upon the evidence before it; and their Lordships are not prepared to dissent from the finding of the learned judges of the High Court that the evidence in the case supported the custom. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellants will pay the costs.