Gulab v. Devilal Gokal Chand — 1949 DIGILAW 16 (RAJ)

Judgement Amar Singh, J. :- The resp. brought a suit for a declaration that he was the adopted son of one Motilal Mahajan of Bijoliyan and for an injunction that the applt. and Ms. Motiya Bai be restrained from wasting the property of Motilal. He alleged in his plaint that Motilal called him from his village Dhangao in Asoj St. 1995, and kept him as an adopted son and that after Motilals death be performed all the rites and ceremonies relating to his (Motilal) death. The defts. denied the factum as well as the validity of the alleged adoption. The learned munsif Bijoliyan who filed the case came to the conclusion that the adoption was in fact made and it was valid according to the custom provailing among the Jains to which religion Motilal and the parties belonged. He consequently decreed the suit against both the defts. On appeal the learned Dist. J., Bhilwara modified the decree is that he disallowed the relief for injunction and refused declaration as against Mt. Motiya Bai. So far as the applt. is concerned, the decree for declaration was confirmed. Against the decree of the learned appellate Ct. the deft. Gulab Bai has come in appeal to this Ct. 2. The points raised on behalf of the applt. against the judgment of the appellate Ct. are that the pltf. has not alleged in his plaint that the adoption was in fact made by Motilal and there is also no evidence to this effect, and that it has neither been alleged nor proved what ceremonies were necessary to validate the adoption and that they were performed. On behalf of the resp. it has been urged in the first instance that the finding of the lower appellate Ct. about adoption is a finding of fact and cannot be disturbed in S. A. It has also been contended that the parties are Jains and therefore no particular ceremonies were necessary to validate the adoption. Reliance was placed on Ss. 617 and 624 Mullas Hindu Law; Edn. 10. about adoption is a finding of fact and cannot be disturbed in S. A. It has also been contended that the parties are Jains and therefore no particular ceremonies were necessary to validate the adoption. Reliance was placed on Ss. 617 and 624 Mullas Hindu Law; Edn. 10. The following rulings ware also cited : (a) Moroti v. Radha Bai, AIR (32) 1945 Nag 60 : (ILR (1944) Nag 796) (b) Ram Kishore v. Jai Narayan, AIR (9) 1921 PC 2 : (48 IA 405 PC) (c) Pannalal v. Chiman, AIR (34) 1947 Lah 54 : (225 IC 8) (d) Subramaniam Chettiar v. Soma Sundaram, AIR (23) 1936 Mad 642 : 59 Mad 1064 (e) Chimanlal v. Hari Chand, 40 Cal 879 : (40 IA 157 PC) (f) Parshottam v. Veni Chand, 45 Bom 754 : (AIR (8) 1921 Bom 147) (g) Biradh Mal v. Prabhavati, AIR (26) 1939 PC 1152 : (ILR (1939) Kar 258) (h) Dhanraj v. Soni Bai, AIR (13) 1925 PC 118 : (52 Cal 482). 3. We have considered the arguments of both the parties. The finding whether the pltf.-resp. was adopted by Motilal is certainly a finding of fact but the question whether the facts found make out a valid adoption is a question of law and can be gone into S. A. There can be no doubt that the parties are Jains, but the rulings that have been cited on behalf of the pltf.-resp. do not apply to the facts of the present case. The ruling reported in Maroti v. Radhabai, AIR (32) 1945 Nag 60 : (ILR (1944) Nag 96 deals with the case of Shudras and cannot therefore serve as an authority in the case of Jains. The ruling reported in Ramkishore v. Jai Narayan, 48 IA 405 : (AIR (9) 1923 PC 2) also has no application to the case of Jains. Their Lordships had to consider whether the custom of adoption of an orphan obtained among the Dhusar community, Gurgaon District in the Punjab which has no relevancy is the present case. The ruling reported in Pannalal v. Chiman, AIR (14) 1947 Lah 84 : (225 IC 8) deals with the case of Agarwalas of Ambale District is the Punjab and there is no mention in it that the parties were Jains. That ruling too, therefore, does not apply to the facts of the present case. The ruling reported in Pannalal v. Chiman, AIR (14) 1947 Lah 84 : (225 IC 8) deals with the case of Agarwalas of Ambale District is the Punjab and there is no mention in it that the parties were Jains. That ruling too, therefore, does not apply to the facts of the present case. The ruling reported in Subramaniam v. Soma Sundaram, 59 Mad 1064; (AIR (33) 1936 Mad 546) also deals with the custom of adaption of an orphan among the Nattu Kottai Chettis and is, therefore, beside the point. 4. In Chimanlal v. Hari Chand, 40 Cal 879 : (40 IA 157 PC) their Lordships of the P. C. ruled that among the Agrawals of Zira in the Punjab an orphan and a married man can be validly adopted according to a custom prevalent among them. The parties to this suit are neither proved to be Agrawals nor to have originated from the Punjab. In the Punjab customary laws play a very important part and override general law wherever the latter is in conflict with the former. The Punjab ruling quoted above, therefore, cannot have any application to the present case. It is significant that in the ruling just refd. to, their Lordships were cautious enough to say that owing to the limited nature of the evidence as to custom among the Agrawal Baniyas of Zira in that case, it would not be a satisfactory precedent if in any future instance other parties further evidence regarding the alleged custom of the Agrawal Baniyas of Zira should be forthcoming. 5. In Purhsottam v. Venichand, 45 Bom 754 : (AIR (3) 1921 Bom 147) their Lordships of Bombay H. C. held that as between the parties to the suit it was proved that the evidence adduced as to the custom of an orphan was sufficient. But it was observed that in view of the limited nature of the evidence adduced in the case it could not be held that the custom of adopting an orphan among Jains in Western India was established as a valid custom. It is, therefore, obvious that this ruling cannot serve as authority in the present case. 6. But it was observed that in view of the limited nature of the evidence adduced in the case it could not be held that the custom of adopting an orphan among Jains in Western India was established as a valid custom. It is, therefore, obvious that this ruling cannot serve as authority in the present case. 6. In the ruling reported in Biradhmal v. Prabhavati, AIR (26) 1939 PC 152 : (ILR (1939) Kar 258) it was held by their Lordships on the admission of the parties that among the Oswal Jains adoption cannot be upheld without proof of giving and taking of the boy. The presence of the boy to be adopted and his father appears to have been considered necessary at the time of the giving and taking, although the acknowledgment of the execution of the deed of adoption before the Sub-Registrar by the father of the adoptee and his adoptive mother in his presence was considered to be sufficient proof of giving and taking. In the present case no such acknowledgment by the father of the pltf. and his adoptive father or mother in his presence is proved. The only thing proved is that the boy was called from his village and the adoptive father put his hand over his head. It is conceded that the natural father was even present at that time, to say nothing of his acknowledging the adoption. The ruling, therefore, does not apply to the facts of the present case and does not help the pltf. The ruling reported in Dhanraj v. Sonibai, AIR (12) 1925 PC 118 : (52 Cal 432) deals with the case of Agarwal Jains but it has neither been alleged nor proved that the parties to this suit are Agarwal Jains. 7. There is no general law relating to the ceremonies necessary for a valid adoption among the Jains of all types found in India. The utmost that can be concluded from the rulings bearing upon the question of adoption among certain sects of Jains is that adoption among them is a temporal arrangement and not a religious ceremony and is based upon custom. But there is no authority showing that there is any general custom regarding the ceremonies requisite for a valid adoption among all kinds of Jains inhabiting this country. 8. But there is no authority showing that there is any general custom regarding the ceremonies requisite for a valid adoption among all kinds of Jains inhabiting this country. 8. It is clear from the argument of the learned counsel for the resp that he relies upon a certain custom in the matter of adaption among the parties to this suit. It is incumbent upon a party relying upon a custom to allege that custom in unambiguous terms in his pleading and prove it. In the present case the pltf. has not alleged any custom in the plaint. All that he has done is to prove that the pltf. was called from his village by Motilal who put his hand upon the pltf.s head and thereafter the pltf. lived with Motilal, and after his death performed rites and ceremonies connected with Motilals death. If only these ceremonies were enough to validate the adoption, the pltf. ought to have alleged and proved it. To say that certain acts were performed does not by itself show that they were the acts which were necessary for a valid adoption. The pltf. ought to have brought out in his evidence in the first instance as what ceremonies were necessary for adoption among the sect to which he belonged and further he should have proved that those ceremonies were performed. Their Lordship of the P. C. in the ruling reported in Chhoteylal v. Chunnoolal, 1 Cal 744 : (6 IA 15 PC) laid down that in the absence of proof of special custom varying the ordinary Hindu law, that law is to be applied to Jains and 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. 9. Again in Mt. Bulaqan v. Ratan Lal, AIR (16) 1928 All 656 : (110 IC 516). It was held by a D. B. of Allahabad H. C. that unless a special custom is pleaded and proved, the ordinary Hindu law governs succession amongst the Jains. 9. Again in Mt. Bulaqan v. Ratan Lal, AIR (16) 1928 All 656 : (110 IC 516). It was held by a D. B. of Allahabad H. C. that unless a special custom is pleaded and proved, the ordinary Hindu law governs succession amongst the Jains. It cannot be assumed that they do possess peculiar custom of inheritance with reference to the property which devolves upon a Jain widow from her husband and reported decisions cannot supply the place of evidence and any fact relating to custom has got to be proved by the production of evidence bearing upon the question sought to be proved. In the present case far from proving, the pltf. has not even alleged any custom with regard to adoption in his community. It has been argued with reference to the ruling of Nagpur H. C. quoted above that it is not necessary to allege in the plaint, as to what ceremonies required by Hindu law were performed at the time of adoption and that it is sufficient to allege that the adoption was made according to Law. It is true that it is not necessary to allege in the plaint what ceremonies were performed if a party relies on Hindu law as every body is presumed to know law. But when a party relies upon a custom it is necessary that it should be alleged as the presumption which can be made with regard to law cannot be made with regard to custom. A party who relies upon custom ought to plead it clearly in his plaint so that the opposite party may know his case and may have opportunity to meet it. 10. Reliance was placed upon a certain deposition of Motiya Bai and Gulab Bai. But as the learned appellate Judge has held, they were not proved. Before a statement can be read in evidence, it is necessary to establish the identity of the deponent which has not been done. Moreover the statements do not throw any light on the question what caremonies are necessary for a valid adoption among the community to which the parties belong. The evidence for the pltf. shows that he was adopted both by Motilal and his brothers wife Motiya Bai. Such a joint adoption is invalid under the Hindu law. The pltf. has not proved that there is any custom among the Jains validating such an adoption. The evidence for the pltf. shows that he was adopted both by Motilal and his brothers wife Motiya Bai. Such a joint adoption is invalid under the Hindu law. The pltf. has not proved that there is any custom among the Jains validating such an adoption. The adoption is, therefore, invalid on this account too. 11. We feel that the pltf. has failed to prove what ceremonies according to the custom prevailing among his sect were necessary for a valid adoption and that such ceremonies were performed. We further find that the adoption is invalid also because according to the pltf.s evidence it was a joint adoption. Under the circumstances the decree of the lower Ct. cannot be sustained. The appeal is allowed, the decree of the lower Ct. is set aside and the suit is dismissed. Under the special circumstances of the case the parties to this appeal shall bear their costs throughout. Appeal allowed.