Judgement Appeal (No. 20 of 1946) from a judgment and decree of the Court of the Judicial Commissioner, Ajmer-Merwara, Ajmer (May 11, 1938), which reversed a judgment and decree of the Subordinate Judge of Ajmer (March 25, 1937). The following facts are taken from the judgment of the Judicial Committee The parties to this appeal were Jains of the Khandelwal sect domiciled and resident in Ajmer. The respondent was the sonless widow of a certain Ratanlal, and on May 22, 1919, she executed a deed by which she adopted or purported to adopt the appellant to her deceased husband. After the execution of that deed the parties lived in the same house, but disagreements arose into which it is not necessary to enter. Finally, the present suit was commenced in November, 1930. The appellant, founding on his adoption, sought, inter alia, to restrain the respondent from wasting the family property, and the respondent in her defences challenged the validity of the adoption and alleged that Ratanlal had never given her authority to adopt a son to him. That allegation was made because under the general Hindu law adoption by a widow without the prior authority of her husband was not recognized (Mulla, 7th ed., p. 516), and because it was also an established principle that the rules of Hindu law generally applied to Jains in the absence of special custom varying the law. Apart from a belated and unsuccessful application to amend his pleadings, the appellant did not allege a special custom by which a sonless Jain widow in Ajmer was entitled to adopt a son without the prior permission of her deceased husband. It was therefore necessary for him, since the respondent gave evidence in support of her allegation that she had no authority from her husband to adopt a son, to maintain that the custom was so well known and so well established by judicial decisions that it was no longer necessary to plead and prove it in the Ajmer courts. The Sub-judge, after considering the authorities, upheld the appellants contention, but his decision was reversed by the Judicial Commissioner of Ajmer-Merwara. The sole question in the present appeal was whether the decision of the Sub-judge was well founded and ought now to be reaffirmed by the Board. 1947. June 5, 6. Dingle Foot for the appellant. The Sub-judge, after considering the authorities, upheld the appellants contention, but his decision was reversed by the Judicial Commissioner of Ajmer-Merwara. The sole question in the present appeal was whether the decision of the Sub-judge was well founded and ought now to be reaffirmed by the Board. 1947. June 5, 6. Dingle Foot for the appellant. A Jain widow of whatever sect is entitled to adopt a son without any previous authority, express or implied, from her husband. Secondly, that usage has been so fully established by decisions of this Board and of the High Courts in India that it is no longer necessary either to plead it or to call evidence to prove it (Banarsi Das v. Sumat Prasad (( 1936) I. L. R. 58 A. 1019, 1030.)), and there is authority to show that there is no distinction in this matter between the different sects of Jains. The decisions go so far as to say that this custom is universal. [Reference was made to Mayne on Hindu Law and Usage, 10th ed., p. 209, to Sarkars Tagore Law Lectures on the Hindu law of adoption, 2nd ed., p. 453, and to the following authorities in favour of the appellant Sheo Singh Rai v. Mst. Dakho (( 1878) L. R. 5 I. A. 87, 103.), Lakhmi Chand v. Gatto Bai (( 1886) I. L. R. 8 A. 319, 321.), Manohar Lal v. Banarsi Das (( 1907) I. L. R. 29 A. 495,499.), Rup Chand v. Jambu Parshad (( 1910) L. R. 37 I. A. 93, 103.), Asharfi Kunwar v. Rup Chand (( 1908) I. L. R. 30 A. 197, 222-3.), Manik Chand Golecha v. Jagat Settani Pran Kumari Bibi (( 1889) I. L. R. 17 C. 518, 534.), Harnabh Pershad v. Mandil Das (( 1899) I. L. R. 27 C. 379, 390.)—which was particularly emphasized, and Sheokuarbai v. Jeoraj (( 1920) 25 C. W. N. 273, 275.).] There are three authorities against the appellant Peria Ammani v. Krishnasami (( 1892) I. L. R. 16 M. 182, 192.) which, on the face of it, only applies to Jains in the southern part of the Madras Presidency—a distinction is drawn between them and those who may be called the ordinary Jains. That case was followed in Gettappa v. Eramma (( 1926) I. L. R. 50 M. 228.), in which it certainly appears that if the ground had been unencumbered by authority the Chief Justice would have found the other way, but he held that he was bound by the decision of this Board in Chotay Loll v. Chunno Lall (( 1878) L. R. 6.I. A. 15, 28.). The third case against the appellant, Prem Sagar v. Ram Gopal (( 1929) A. I. R. (Lah.) 814.), does not carry the matter any further. This is a universal custom, though it may be that it is a custom which is only universal in the north of India. Peria Ammanis case (4) is the only one in which a geographical line has been drawn. The question is one of importance to the whole Jain community. As to the point at which custom is to be regarded as a rule of law and does not need to be proved, see, on judicial recognition, Jadu Lal Sahu v. Janki Koer (( 1912) L. R. 39 I. A. 101,106), Rama Rao v. Raja of Pittapur (( 1918) L. R. 45 I. A. 148.) and Musammat Subhani v. Nawab (( 1940) L. R. 68 I. A. 1, 30.). It can hardly be disputed that in the particular cases of Allahabad and Calcutta the stage has been reached where the usage has become a rule of law, and it does not need to be pleaded and proved. This case depends on whether the decisions of this Board in Sheo Singh Rats case (L. R. 5 I. A. 87.) and in Sheokuarbai v. Jeoraj (3) and the repeated decisions of the Calcutta and Allahabad High Courts simply refer to the rule which prevails in those particular Provinces, or whether they have a wider ambit. If it had been intended to confine the effect of those judgments simply to the particular Provinces it is almost inconceivable that the judgment in each case would not have said so. The test is made out that these decisions have a universal validity except where there is an exception on an exception, and that did not affect the validity of the general proposition. Sir Thomas Strangman K.C. and Khambatta K.C. for the respondent. The test is made out that these decisions have a universal validity except where there is an exception on an exception, and that did not affect the validity of the general proposition. Sir Thomas Strangman K.C. and Khambatta K.C. for the respondent. Jains are ordinarily governed by the Mitakshara school of Hindu law, and, as stated by the Privy Council in Chotay Lull v. Chunno Lall (( 1878) L. R. 6 I. A. 15, 28.), " the customs of the Jains, " where they are relied upon, must be proved by evidence.” The question here is whether there is a custom applicable to Khandelwal Jains in Ajmer according to which the widow can adopt without the authority, express or implied, of her husband. Admittedly there is no evidence in support of such a custom, and the question then resolves itself into whether there is such a current of judicial authority as to render it unnecessary to allege or prove such a custom. There is no authority to the effect that Jains of any kind in Ajmer are governed by this custom. It is said that that does not matter because there are decisions of the Calcutta and Allahabad High Courts which show that in the territories within their jurisdiction this custom has been established. But that is not the position in the Punjab, which is not very far away from Ajmer. It is impossible to say that throughout the north of India such a custom prevails. It is not a question of an exception on an exception with regard to the Madras case, as was said by counsel for the appellant—the parties who alleged the custom failed to prove it in that case. One salient feature is that neither in Sheo Singh Rais case (L. R. 5 I. A. 87.) nor in either of the Calcutta cases in which evidence was taken was there any witness called from Ajmer. It does nt appear that any evidence was given in the three Allahabad cases which follow Sheo Singh Rais case (L. R. 5 I. A. 87.) as to the widows power to adopt without authority, and it is quite possible that that may have been because it was considered that Sheo Singh Rais case (L. R. 5 I. A. 87.) concluded the matter so far as Agarwals in the United Provinces were concerned. I am also prepared to concede that it might be possible that it was also considered that the decision in Sheo Singh Rais case (L. R. 5 I. A. 87.), although it referred to Agarwals only, might have referred to Jains generally. In Lakhmi Chand v. Gatto Bai (I. L. R. 8 A. 319.) the name of the sect is not given. In Manohar Lal v. Banarsi Das (I. L. R. 29 A. 495.) it does not appear that the parties were Agarwals. In different parts of India different law applies. In Chotay Lalls case (( 1878) L. R. 6 I. A. 15, 28.) is the soundest common sense—if something is alleged different from the ordinary Hindu law so far as the Jains are concerned, it must be proved see also Bhagvandas Tejmal v. Rajmal (( 1873) 10 Bom. H. C. R. 241, 256.). In the Bombay Presidency, so far as is known, the only law applicable to Jains is the Hindu law. In the end it all comes down to a matter of degree. With regard to the Calcutta cases, Manik Chanel Golechas case (I. L. R. 17 C. 518.) was a case of Oswals, and Harnabh Per shad v. Mandil Das (I. L. R. 27 C. 379.) one of Agarwals, but it is conceded that in the latter case the ratio of the decision was that the custom applied to all sects of Jains. These decisions would be good law so far as the United Provinces, Bengal and Patna are concerned, and might be good law with regard to the places whence evidence was called, but that would not carry the appellant all the way. The Board has to consider whether those decisions govern, and, to come to that conclusion, have to say with certainty that the law which was referred to there must necessarily govern Ajmer. That, it is submitted, is the difficulty with which the appellant is faced, he cannot say that with certainty, and the Board cannot say with certainty that the Jains in Ajmer follow the same custom. Khambatta K.C. followed, and referred to Mullas Hindu Law and Usage, 10th ed., paras. 613 and 618, Amava v. Mahadgauda (( 1896) I. L. R. 22 B. 416.) and Dhanraj Joharmal v. Soni Bai (( 1925) L. R. 52 I. A. 231.). Khambatta K.C. followed, and referred to Mullas Hindu Law and Usage, 10th ed., paras. 613 and 618, Amava v. Mahadgauda (( 1896) I. L. R. 22 B. 416.) and Dhanraj Joharmal v. Soni Bai (( 1925) L. R. 52 I. A. 231.). Dingle Foot replied, and referred to Rattigans Digest of Customary Law of the Punjab, nth ed., pp. 38, 148; Punjab Customary Law, by C. L. Tupper ( 1881), vol. 2, p. 154, and to Kapur Chand v. Narinjan Lal (( 1897) 20 P. R. 1440.), Champat Rai v. Doulat Ram (( 1909) 44 P. R-222.) and Sunday Lal v. Baldeo Singh (( 1932) I. L. R. 14 Lah. 78, 86, 88.). This excursion into the Punjab shows that this custom has been established in the Punjab just as it has been in Calcutta and Allahabad, and takes the appellant a stage further in showing that the custom applies to Jains throughout India, with the possible exception of Madras. This problem could not arise in Bombay, because a Hindu widow in Bombay could in any case adopt without the authority of her deceased husband. Calcutta, Allahabad, the Central Provinces and the Punjab are in the appellants favour, and the problem could not arise in Bombay, which leaves Madras as the only established exception. July 21. The judgment of their Lordships was delivered by Lord Normand, who stated the facts set out above and continued The question is one of degree. It is not doubtful that the ordinary rule is that a party relying on a custom affecting the Jains which is at variance with the ordinary Hindu law must allege and prove it. But it is equally beyond doubt that a custom which has been recognized and affirmed in a series of decisions, each of them based on evidence adduced in the particular case, may become incorporated in the general law, with the result that the onus of proof no longer lies on those who assert it but on those who assert an exception to it. These are familiar general principles which are acknowledged by both the parties to this appeal, but the respondent denies that the decided cases in which the custom has been found proved have been either so widely distributed or so clearly applicable to all sects of the Jains as to enable a court to say that the custom has become part of the personal law of the Jains either in India as a whole or in some defined part of India. It is in the North-West Frontier Province that the custom has been most frequently recognized by judicial decisions. The earliest case which need be considered is Sheo Singh Rai v. Mussumut Dakho (( 1878) L. R. 5 I. A. 87.). In that case the parties belonged to the Agarwal sect of Jains and were domiciled in the North-West Frontier Province. The custom was alleged in that case and evidence from Jains in Delhi, Jeypore, Muttra and Benares was led in support of it. The custom was held by the High Court and by this Board to have been proved. The learned judges of the High Court dealt with the question as one of personal law affecting Jains as such and without regard to particular sects of Jains, and they gave consideration to decisions pronounced not only in the North-West Frontier Province but in other parts of India. They proceeded on the principle that the Jains, as dissenters from orthodox Hinduism, are in certain respects subject to the law of their own proved usages and not to the lex loci. In an account of the history and religious tenets of the Jains, they said, " They differ particularly from the Brahminical Hindus in " their conduct towards the dead, omitting all obsequies after " the corpse is burnt or buried. They also regard the birth "of a son as having no effect on the future state of his progenitor, and, consequently, adoption is merely a temporal " arrangement and has no spiritual object.” (Ibid. 107.) It was, in the view of the court, in this attitude towards death and existence after death, differing as it does so vitally from the religious beliefs of the Hindus, that the custom took its origin. 107.) It was, in the view of the court, in this attitude towards death and existence after death, differing as it does so vitally from the religious beliefs of the Hindus, that the custom took its origin. Both in the judgment of the High Court and in the judgment of this Board it was assumed that the custom was not confined to Agarwals but was shared by all the Jain sects, and there is no doubt that the reason underlying this assumption is that all Jain sects have the same views on death and on existence after death. In Lakhmi Chand v. Gatto Bai (( 1886) I. L. R. 8 A. 319.), the High Court at Allahabad had to consider whether a Jain widow could make a second adoption. The court decided this question in favour of the adoption after considering evidence adduced by the parties. But they also dealt incidentally, and apparently independently of evidence, with the question whether a sonless widow of a Jain could make an adoption without the antecedent permission of her deceased husband, and they affirmed her capacity to do so. Once more no distinction was drawn between the various Jain sects and the custom was treated as applying to them all indifferently. The custom was again considered and judicially affirmed in Manohar Lal v. Banarsi Das (( 1907) I. L. R. 29 A. 495.), and again the issue was whether the custom prevailed among the Jain community generally, and differences of sect were ignored. The High Court cited with approval Sarkars Tagore lectures of 1888, in which it was said, at page 453 of the second edition, that a Jain widow is competent to adopt a son without having obtained authority to do so from her husband. Sarkar, whose authority commands the highest respect, also connects the special customs of the Jains in matters of adoption with the fact that for them adoption is a purely temporal institution and is not affected in its incidents by the religious con siderations which have influenced the Hindu law of adoption. Asharfi Runway v. Rup Chand (( 1908) I. L. R. 30 A. 197.) does not carry the matter further. In Banarsi Das v. Sumat Prasad (( 1936) I. L. R. 58 A. 1019.) the parties were Agarwal Jains. Asharfi Runway v. Rup Chand (( 1908) I. L. R. 30 A. 197.) does not carry the matter further. In Banarsi Das v. Sumat Prasad (( 1936) I. L. R. 58 A. 1019.) the parties were Agarwal Jains. The authorities, including decisions in other parts of India, were fully considered by the High Court, and the learned judges came to this conclusion—" As will " appear from the cases referred to above, the custom under " which a Jain widow can adopt a son to her husband without " her husbands authority or permission of his kinsmen has " been recognized by judicial decisions since 1833 in different " parts of the country, that is Bengal, Central Provinces, United " Provinces and the Punjab. In our opinion these decisions " are sufficient tp hold in this case the existence of the custom, " and it is no longer necessary to prove it in each case by " oral evidence.” (I. L. R. 58 A. 1031.) The Calcutta cases point to the same conclusion, though none of them can be said to have arrived at it. In Manik Chand Golecha v. Jagat Settani Pran Kumari Bibi (I. L. R. 17 C. 518.) a Jain widow of the Oswal caste was held entitled to adopt a son without the authority of her deceased husband. The judgment of the High Court was based partly on evidence and partly on authority, and the learned judges thought that the custom was prevalent among Jains generally and was not peculiar to any tribe or caste among them. This was still more clearly affirmed in Harnabh Pershad v. Mandil Das (I. L. R. 27 C. 370,). The learned judges of the High Court say the defendant is not setting up a local custom; his case is that the customs relied on prevail " among all the Jains who are now a scattered community "…….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." (Ibid. 391) In that case the court relied both on previous decisions and on the evidence of witnesses resident in various districts west of Arrah, where the parties resided, and extending up to Delhi and Kurnal, and also witnesses residing in Calcutta, Moorshedabad and Gaya to the east of Arrah. These witnesses included persons who belonged to all the principal Jain sects. On this evidence the comment Wets made that a widespread belief in the custom existed and was acted on. But the court was not yet prepared to hold that the existence of the custom must be recognized without further proof as applicable to all Jains; for it was felt that to do so would be inconsistent with the rule laid down by this Board in Chotay Lall v. Chunno Lall (L. R. 6 I. A. 15, 28,), that " 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 .... in the absence of proof the ordinary law must prevail.” In Sheokuarbai v. Jeoraj (( 1920) 25 C. W. N. 273.), however, this Board went further in recognizing the custom than it had done forty years earlier. There had been in the interval authoritative decisions which had shown that the custom existed in areas about which there had been no decisions in 1878. It was said to be common ground in the case that the widow of a sonless Jain can legally adopt to him a son without any express or implied authority from her deceased husband to make an adoption, and it is but a short step from this to the proposition that the custom must now be regarded as established in the absence of proof to the contrary. In Ajmer itself only one case before the present seems to have come before the courts. In it (Dhannalal v. Ratanlal (( 1927) Supplmt. 42.)) the Judicial Commissioner remarked that he assumed that a Jain widow could adopt a son without her husbands authority and that this was the rule in Western India. The observation was, however, obiter, and the case was decided on other grounds. In Bombay the question cannot arise in the same form as in this case, because there the widow even of a Hindu is permitted to adopt without her deceased husbands authority. The observation was, however, obiter, and the case was decided on other grounds. In Bombay the question cannot arise in the same form as in this case, because there the widow even of a Hindu is permitted to adopt without her deceased husbands authority. This is recognized by the Court of Appeal of Bombay in Bhagvandas Tejmal v. Rajmal (( 1873) to Bom, H. C, R. 241, 256-7.), by Mulla in his Principles of Hindu Law, at page 528, and by Rattigan in his Digest of Customary Law, 1898, page 206. Accordingly, there is no need in Bombay to assert a Jain custom differing from Hindu law on this point. In the Punjab the law of adoption is complicated by the local customs of the province, and it would not be possible to draw from the customs of the Punjab any general inference affecting other provinces. Mayne, in his treatise on Hindu Law and Usage, states at page 210 that the custom appears to vary in the Punjab, and this statement was not displaced by those authorities which were cited. Thus in Prem Sagar v. Ram Gopal (( 1929) A. I. R. (Lah.) 814.), it was held that the evidence had failed to prove the custom, but in Sunday Lal v. Baldeo Singh (( 1932) I. L. R. 14 Lah. 78.), the opposite conclusion was arrived at. No certain conclusion can be drawn either in favour of the appellants contention or against it, and in any generalization of the right of a Jain widow to adopt without her deceased husbands consent it would be prudent to omit the Punjab. In Madras, the authorities are against the custom. They were decided on the particular evidence adduced, but there are in them observations which are pertinent to the general question. In Peria Ammani v. Krishnasami (( 1892) I. L. R. 16 M, 182.), Best J. says "it is open to question whether among the converts to " Jainism in the southern districts of this Presidency—to " which the parties to this suit belong—there was any drifting " away from Hinduism as far as the law regulating the " devolution and alienation of property is concerned, and with " regard to the powers of a widow to alienate property or to " make an adoption to her husband without authority from her husband or his kinsmen " (Ibid. 193.). 193.). There was, too, in the case evidence from accredited witnesses that among Jains in Southern India widows have no greater powers in regard to adoption than is possessed by widows under the ordinary Hindu law. In Gettappa v. Eramma (( 1926) I. L. R. 50 M. 228,), the officiating Chief Justice felt compelled by authority to lay the onus of proof on the party alleging the custom, and Curgenven J. reached the same conclusion, but remarked that it was not yet possible to accept the view that this custom had so often been found to exist that the onus was shifted to the party who denied it. To sum up, there are good historical grounds for holding that in Madras the Jains have not acquired customs affecting adoption which vary from the ordinary Hindu law; in the Punjab adoption, whether by Jains or by people of other beliefs, is subject to local customs which may, and do, vary from the law and custom observed by the same peoples and sects in other parts of India. But in many other parts of" India it has now been established by decisions based on evidence from widely separated districts and from different sects that the Jains observe the custom by which a widow may adopt to her husband without his authority. This custom is based on religious tenets common to all sects of Jains, and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none of the cases has a distinction been drawn between one sect and another. It is now in their Lordships opinion no longer premature to hold that the custom prevails generally among all Jains except in those areas in which there are special reasons, not operative in the rest of India, which explain why the custom has not established itself. Mayne, in his treatise on Hindu Law and Usage, at page 209, has lent the weight of his authority to the proposition that among the Jains, except in the Madras Presidency, a sonless widow can adopt a son to her husband without his authority or the consent of his sapindas. Rattigans Customary Law, 12th ed., p. 205, also supports this view. Rattigans Customary Law, 12th ed., p. 205, also supports this view. Their Lordships, for the reasons already explained, would except not only Madras but also the Punjab, but in the rest of India they consider that the onus should now lie on those who deny that the custom prevails. Their Lordships will accordingly humbly advise His Majesty that the appeal should be allowed and that the judgment of the Sub-judge should be restored. The respondent will pay the appellants costs of this appeal and in the courts in India.