Judgment

SHAH J. : This appeal with special leave is against the decree of the Madhya Pradesh High Court confirming the decree of the 1st Additional District Judge, Jabaipur in Civil Suit No. 12-A of 1952.

2. The dispute between the parties arose in a suit or partition of joint family property. The parties are Digambar pains of the Porwal Sect and are residents of Jabalpur which at the material time was in Madhya Pradesh. The following pedigree explains the relationship between the parties:-

Saheblal son of Munnalal filed Suit No. 12A of 1952 in the Court of the 1st Additional Subordinate Judge, Jabalpur on June 21, 1952 for a decree of partition and separate possession of his 1/12th share in the joint family property. He claimed that in the property his father s branch was entitled to have a half share and the remaining half was owned by Ram Chand and his branch. The Additional Dist. Judge ordered that Khilonabai -grandmother of Munnalal & - Ramchand the wives of Munnalal and Ramchand and their sons and Bhunbai (widow of Padamchand) and Rajkumar who claimed to be a son of Padam Chand by adoption by Bhuribai on July 26, 1952, be impleaded as defendants to the suit.

3. At the trial of the suit the right of Saheblal to a share in the property was not questioned; the dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property. Padamchand had died before the enactment of the Hindu Women s Right to Property Act, 1937, and his widow could not claim by virtue of that Act a share in the property of the family. But Bhuribai and Rajkumar pleaded that the parties were governed in the matter of adoption by the customary law prevalent amongst the Jains of Central India, Madhya Pradesh, Vindhya Pradesh North and Western India, and Rajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the joint family and entitled to a share in the property and accretions thereto.

4. The validity of the adoption of Rajkumar was challenged on many grounds, one only of which is material in this appeal. It was submitted by the contesting defendants that Bhuribai had no authority express or implied from her husband Padam Chand to adopt a son and that the adoption of Rajkumar as a son without such authority was invalid. The Additional District Judge rejected this plea and ordered a preliminary decree for partition and declared that the share of the plaintiff was 1/24th, of Munnalal, his wife and 3 sons collectively was 5/24th, of Ramchand and his sons 1/4th, of Khilonabai 1/4th and the remaining 1/4th share belonged to Rajkumar.

5. Against the decree, Munnalal, Ramchand, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhya Pradesh. During the pendency of this appeal Khilonabai died on July 3, 1956 and Ramchand and Munnal applied to be impleaded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree. By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of Ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on June 14, 1956 and that the sons of Munnalal, Ramchand and Padam Chand could not take a share in Khilonabai s interest.

6. Before the High Court two questions were canvassed: (l) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the preliminary decree on her death. The High Court upheld the finding of the trial Court that Rajkumar was in fact adopted by Bhudbai as a son to her husband on July 26, 1952 and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf. In so holding the High Court relied upon the judgments of the Pri