Judgement Appeal (No. 14 of 1919) from a judgment and decree of the Court of the Judicial Commissioner (October 22, 1917) reversing a decree of the District Judge, Wardha. The suit had been on appeal to the Privy Council in September, 1913, the appeal being reported at L. R. 40 I. A. 213. On that occasion the suit was remanded for trial. The principal question arising in the present appeal was whether the first respondent (the principal defendant) Jainarayan had been validly adopted by Jaidevi Bai as a son to her deceased husband Rambilas. The fact of the adoption, which took place in 1886 or 1887, was not in dispute. The appellants-plaintiffs alleged that the family was governed by the Mitakshara, and that Jainarayan being an orphan the adoption was invalid. The family were Hindus of the Dhusar caste who about 1836 had migrated into the Central Provinces from the Gurgaon District of the Punjab. The defendants pleaded that the family was governed by the customary law of the Gurgaon District and not by Hindu law, and that the adoption was valid according to the customary law. The plaintiffs by their reply pleaded (inter alia) that the Dhusars were not agriculturists and consequently were not governed by any tribal custom. The relevant facts appear from the judgment of the Judicial Committee. The District Judge in the course of his judgment stated that it was admitted that the family had not changed its law and that its rights were to be determined according to the law of the Gurgaon district. He, however, was of opinion that the Dhusars were non-agriculturists, and that the onus was upon any Dhusar asserting that he was governed by customs prevailing in the Punjab to prove it. In his view the Dhusars were governed by the Mitakshara law modified by certain customs. He found that the adoption of one orphan at least among the Dhusars was proved, but held that that was not sufficient to establish the custom alleged. An appeal to the Court of the Judicial Commissioner was allowed, it being held that the custom alleged was established. The learned judges said that the view expressed in Rattigans Digest of the Customary Law of the Punjab, pt. An appeal to the Court of the Judicial Commissioner was allowed, it being held that the custom alleged was established. The learned judges said that the view expressed in Rattigans Digest of the Customary Law of the Punjab, pt. 1, that in the Punjab custom was the " first rule of decision " in question regarding (inter alia) adoption appeared to be the accepted interpretation of s. 5 of the Punjab Laws Act (IV. of 1872). They pointed out that although the Dhusars were not agriculturists, certain of the customs recorded in the revaj-i-am of the Gurgaon District (See Settlement Report Gurgaon District, 1872- 1883, Appx.) were expressly stated therein to apply to Dhusars. Those customs showed a departure from the law of the Mitakshara. In the Punjab there was no religious element with regard to adoption, and they considered that once that element was eliminated the burden of proving that an orphan could not be adopted was upon the persons so asserting. That being the case they came to the conclusion that the evidence was sufficient to establish the custom. 1921. June 14, 16. De Gruyther K.C. and Parikh for the appellants. The family migrated to the Central Provinces in 1836, and carried with them their personal law, which was the law of the Mitakshara. The Gurgaon district did not become part of the Punjab until 1858, and the revaj-i-am was not prepared until 1878. The onus was upon the respondents to show that the customs alleged form part of the law governing the Dhusars in the Gurgaon District in 1836 Balwant Rao v. Baji Rao. (( 1920) L. R. 47 I. A. 213.) That onus was not discharged. Further the Dhusars are not agriculturists. It has been held in several cases in the Punjab that Hindu law governs non-agriculturists residing in a city, in the absence of proof of specific custom modifying that law see Sardul Singh v. Karm Singh. ( 1910 P. R. No. 30.) In Chiman Lal v. Hari Chand (( 1913) L. R. 40 I. A 156.) in which the Board held that a custom allowing the adoption of an orphan had been established the parties were agriculturists, Agarwal Banias. A revaj-i-am is not of the same authoritative effect as a wajib-ul-arz. The High Court in taking the revaj-i-am as conclusive gave too wide an application to the decision in Beg v. Allah Ditta. A revaj-i-am is not of the same authoritative effect as a wajib-ul-arz. The High Court in taking the revaj-i-am as conclusive gave too wide an application to the decision in Beg v. Allah Ditta. (( 1916) L. R. 44 L A. 89.) But in any case the revaj-i-am did not mention the custom relied on, and the evidence was wholly insufficient to establish it. E. B. Raikes for the respondents. The decision of the Board in Beg v. Allah Ditta (( 1916) L. R. 44 L A. 89.) is to the effect that in the absence of rebuttal the revaj-i-am is conclusive. It is true that it does not refer to the custom alleged, but it expressly states that various customs as to adoption apply to Dhusars. Those customs are at variance with the Mitakshara and show that the Dhusars were governed by customary law. Two instances were clearly proved; having regard to the infrequency of cases in which the custom could be applied that evidence is sufficient. On the facts found by the District Judge he should have held that the custom was established. Parikh replied. July 11. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal by the plaintiffs in the suit from a decree, dated October 22, 1917, of the Court of the Judicial Commissioner, Central Provinces, which reversed a decree, dated August 7, 1916, of the District Judge of Wardha, and dismissed the suit. The suit is a suit on title for possession of the properties mentioned in the amended plaint. The plaintiffs are the sons of Kedarnath, who is one of the defendants. The principal defendant is Jainarayan, and it is his title to the properties claimed by the plaintiffs which is in question. Jainarayans title depends on whether he was validly adopted as a son to Rambilas, who was a brother of Ramnath who had adopted Kedarnath. The following pedigree will show the position of the parties. Ramkaran. | | | Harbaksha. Balaram. | | Harbhajan, Bhagwandas. died in 1869. | | | = Sunder Bai, | = Jaidevi Bai, | Ramnath died Rambilas Ramrachpal. in 1883. died childless | | in 1881. trpaddfb3| | Kedarnath Jainarayan, adopted son, Defendant Defendant No. 1. alleged No. 3. to be adopted | son to Rambilas. | | | | Plaintiff No. Plaintiff No. Plaintiff No. Plaintiff No. 1. 2. 3. | | | = Sunder Bai, | = Jaidevi Bai, | Ramnath died Rambilas Ramrachpal. in 1883. died childless | | in 1881. trpaddfb3| | Kedarnath Jainarayan, adopted son, Defendant Defendant No. 1. alleged No. 3. to be adopted | son to Rambilas. | | | | Plaintiff No. Plaintiff No. Plaintiff No. Plaintiff No. 1. 2. 3. 4. The parties to the suit are Hindus of the Dhusar caste. The members of the Dhusar caste claim to be Brahmins, but that claim is not admitted, nor is it proved in this suit. Ramkaran and his two sons lived at Kutubpur in the district of Gurgaon, which was a district of the North-Western Provinces until after the mutiny of 1857, when, in 1858, it was transferred to the Punjab. Balaram and his descendants continued to live at Kutubpur until after the adoption of Jainarayan, the validity of which is in dispute in this suit. In or about the year 1836, Harbhajan migrated from Kutubpur to the Central Provinces and settled at Ashti in the District of Wardha; he acquired considerable property, which included the immovable property to which the suit relates. It is admitted that Harbhajan carried his personal law with him, and that this appeal has to be decided in accordance with that personal law. Harbhajan died in 1869, leaving his sons, Ramnath and Rambilas, him surviving. Ramnath married Sunder Bai, and, being childless, he adopted Kedarnath as a son to him. Ramnath died in 1883. The four plaintiffs are the sons of Kedarnath. Rambilas married Jaidevi Bai and died childless in 1881, leaving his wife Jaidevi him surviving. In 1886 or 1887, the exact date is uncertain, Jaidevi Bai in fact adopted Jainarayan as a son to her deceased husband Rambilas. Whether that adoption was or was not valid is the question upon which this appeal depends. At the time of the adoption of Jainarayan he was an orphan, his father and his mother being then dead, and he was nine or ten years of age, and was under the guardianship of Sunder Bai, the widow of Ramnath. Of the fact of the adoption there cannot be a doubt, the factum of the adoption is not disputed. At the time of the adoption of Jainarayan he was an orphan, his father and his mother being then dead, and he was nine or ten years of age, and was under the guardianship of Sunder Bai, the widow of Ramnath. Of the fact of the adoption there cannot be a doubt, the factum of the adoption is not disputed. It took place at Kutubpur, in the presence of members of the Dhusar caste then assembled, and of others, including Brahmins, some of whom recited Mantras, and the ceremonies observed on the occasion were apparently similar to those which were usually observed when Dhusars of Gurgaon adopted sons. Jainarayan was, in the presence of those assembled at Kutubpur, given in adoption by Sunder Bai to Jaidevi Bai and was placed by Sunder Bai on the lap of Jaidevi Bai as an adopted son. No one at the time, or for many years afterwards, questioned the validity of the adoption. On the adoption Kedarnath, without any protest or dispute, admitted Jainarayan as an 8- annas sharer in the joint family estate, that being the position which Rambilas had held when he was alive. Ramkishore, who is the plaintiff No. 1, is said to have been born on December 20, 1886, but whether he was born before or after the adoption of Jainarayan has not, so far as their Lordships are aware, been proved. His brothers, the plaintiffs No. 2, No. 3 and No. 4, were born after Jainarayan had been adopted. In 1897 Jaidevi Bai died, and in 1898, Kedarnath and Jainarayan partitioned the family estate between them in two equal parts, and Jainarayan got as his share the property which is now claimed by the plaintiffs in this suit. The plaintiffs case is that the law of the Mitakshara, as recognized by the School of Benares, applies to the family, and that no custom at variance with that law has been proved and, consequently, that the adoption of an orphan, as Jainarayan was when he was adopted, is invalid. The case of Jainarayan is that the Dhusars of the District of Gurgaon are governed by a custom and not by the law of the Mitakshara, as recognized by the School of Benares, and that according to that custom the adoption of an orphan is valid. It was for Jainarayan to establish that custom. The case of Jainarayan is that the Dhusars of the District of Gurgaon are governed by a custom and not by the law of the Mitakshara, as recognized by the School of Benares, and that according to that custom the adoption of an orphan is valid. It was for Jainarayan to establish that custom. It is beyond question that, according to the law of the Mitakshara, as recognized by the School of Benares, an orphan cannot be adopted. It is also beyond doubt that in some parts of Northern India, particularly in districts now in the Punjab or adjacent to the Punjab, the strict rules of the Mitakshara, as recognized by the School of Benares, have not been followed by some castes, tribes and families of Hindus, and that customs which are at variance with the law of the Mitakshara, as recognized by the School of Benares, have been for long consistently followed and acted upon, and that when such customs are established they, and not the strict rules of the Mitakshara with which they are at variance, are to be applied. Such customs relate to a variety of subjects, as for instance to widows, adoptions, and the descent of lands and interests in lands ; they are to be found principally amongst the agricultural classes, but they are also to be found amongst classes which are not agricultural. It has been found by each of the Courts below that the Dhusars are not an agricultural class, although many of them are owners of land. The trial judge, in a very carefully considered judgment, came to the conclusion that " Jainarayans adoption was not valid, as he was an orphan at the time of his adoption." There was evidence before him upon which he might have found that there was a custom amongst the Dhusars according to which an orphan might be validly adopted, but he did not consider it strong or satisfactory. Three cases in which it was alleged that orphans had been previously adopted were mentioned by witnesses ; in one of those cases, that of Ramchandra, the evidence that an orphan had been publicly adopted was, their Lordships consider, convincing. Three cases in which it was alleged that orphans had been previously adopted were mentioned by witnesses ; in one of those cases, that of Ramchandra, the evidence that an orphan had been publicly adopted was, their Lordships consider, convincing. In the other two cases, those of Harnarayan, otherwise Narayan Das, and Jwalaprashad, there was evidence that an orphan had been adopted, although the trial judge did not consider it satisfactory, in one case—because it appeared to be evidence of repute, and in the other case—because it did not appear that the witness had been present at the adoption. The evidence to which the trial judge referred had been taken on commission and not before him. It appears from his judgment that the trial judge in considering the evidence of witnesses as to adoption of orphans by Dhusars did not overlook the fact that such adoptions must have been few and of rare occurrence. In coming to the conclusion that Jainarayans adoption was invalid, the trial judge was obviously much influenced by the fact that the " Code of Tribal Custom of the Gurgaon District " did not expressly say anything about the adoption of an orphan. The " Code of Tribal Custom of the Gurgaon District," to which the trial judge referred, was a record of the customs of the Gurgaon District, which was prepared at various dates in 1878 and 1879 by Mr. Wilson, who was the assistant settlement officer in the revision of the settlement of the District of Gurgaon ; it was prepared from the answers of the village headmen of each of the principal land-owning tribes of the district to a series of questions put to them with the approval of the Punjab Government. Some of those answers show that the Dhusars had by their customs materially departed from the rules of the Mitakshara, as recognized by the School of Benares, but no question was expressly directed to the adoption of an orphan. That the adoption of Jainarayan was considered to have been a valid adoption at the time, and for years afterwards, by every one concerned, the trial judge found. That the adoption of Jainarayan was considered to have been a valid adoption at the time, and for years afterwards, by every one concerned, the trial judge found. In his judgment he said "Under the same impression (i.e., that the family was governed by special customs), the right of Jaidevi Bai to adopt a son for her husband was not disputed, and the status of Jainarayan as an adopted son of Rambilas, and as being capable of owning the share and interest of his adoptive father in the family estate, was as a matter of course recognised. None thought otherwise. There was no occasion for dispute—all concerned thought that what was done was perfectly valid. None had any idea that they were governed by the ordinary Hindu law, and that under the law by which they were governed, Jainarayans adoption by Jaidevi Bai was invalid and had no legal existence. Several circumstances must have supported them in this their impression, which he, however, considered as mistaken. There was not that strictness in the observance of the conditions of an adoption, recognised by Hindu law, in their caste. The customs of the Punjab were being observed by them, and the landed property owned by them in that province was being dealt with accordingly, so everybody accepted the right of Jaidevi Bai to adopt, and the status of Jainarayan as her adopted son." As the trial judge had come to the conclusion that the adoption was invalid he made a decree in favour of the plaintiffs for possession of the lands claimed, except some tenancy lands, to which he held that the plaintiffs had no title. From that decree Jainarayan appealed to the Court of the Judicial Commissioner, and the plaintiffs filed cross objections as to the tenancy lands. The learned judges of the Judicial Commissioners Court, who heard the appeal, considered that if the trial judge had been of opinion that the revaj-i-am applied to Dhusars, who are not an agricultural class, he would have held that the adoption of Jainarayan was valid, and they pointed out that some of the special customs relating to adoption set out in the revaj-i-am are specifically stated to apply to Dhusars and establish the proposition that Dhusars are governed in matters of adoption not by the orthodox Hindu law but by customary law. They came to the conclusion that under the Punjab customary law there is no religious significance; attached to the appointment of an heir, and that there is nothing in the customary law applicable to Dhusars which precludes the adoption of an orphan, and as to the oral evidence as to orphans having been adopted by Dhusars they said " We agree with the District Judges remarks in para. 23 of his judgment, to this extent, that if the oral evidence were the only evidence to prove a custom of adopting orphans, it would not be sufficient to prove such a custom if the parties were orthodox Hindus. The instances given of adoption of orphans do, however, support the view that the adoption of an orphan is not considered contrary to proper usage, and the adoption of at least one orphan besides Jainarayan, namely, Ramchandra, is satisfactorily proved. It is hardly possible to suppose that even one instance would be possible if the Dhusars consider themselves governed by the Mitakshara law as to adoption." The learned judges of the Judicial Commissioners Court found that the adoption of Jainarayan was valid, and by their decree allowed the appeal and dismissed the suit. From that decree this appeal has been brought. Their Lordships are satisfied that the parties to this suit are governed, not by the Mitakshara as recognized by the School of Benares, but are governed by the customary law of the Dhusars of the District of Gurgaon. They have further come to the conclusion that it is consistent with that customary law that the adoption of orphans by Dhusars is valid. They have come to that conclusion for the following reasons. Adoptions which would be invalid if not permitted by that customary law are by that customary law permitted, as for example, a brother can be adopted, a daughters son can be adopted, there is no limit as to the age of the person who may be adopted, a married man who has had children may be adopted, and a guardian may give a boy in adoption. Besides the case of Jainarayan there is clear evidence of one who had been present at the adoption, that another orphan, Ramchandra, had been adopted, and there is evidence that Harnarayan and Jwalaprashad, who were orphans, had been adopted. Besides the case of Jainarayan there is clear evidence of one who had been present at the adoption, that another orphan, Ramchandra, had been adopted, and there is evidence that Harnarayan and Jwalaprashad, who were orphans, had been adopted. Jainarayans adoption took place openly in the presence of Dhusars at Kutubpur, and of many others who had been assembled there for the purpose of Jainarayan being adopted. There was no concealment. Every one knew that he was an orphan. For years after that adoption every one treated Jainarayan as a lawfully adopted son, and no one suggested that he had not been validly adopted. Kedarnath, who was the person who was most interested to dispute the adoption, acknowledged that the adoption was valid, and admitted Jainarayan as a validly adopted son to Rambilas, to the share in the family property which a naturally born son of Rambilas, if there had been one, would have enjoyed. Their Lordships can come to no other conclusion than that Jainarayan was validly adopted. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.