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1944 Supreme(SC) 25
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PORTER, LORD GODDARD AND SIR MADHAVAN NAIR.
KESARBAI, MST. - Appellant
Versus
INDARSINGH ALIAS ISHWARKUMAR - Respondents
On appeal from the High Court at Nagpur.
Decided On : July. 27. 1944.
Solicitors for respondent: Hy. S. L. Polak & Co.
A custom allowing a Hindu widow to adopt without her husband's authority can be established by evidence of widespread practice within the community and the historical lack of challenges to such adoptions, overriding the general requirements of the applicable school of Mitakshara law.
Headnote:(A) Hindu Law - Adoption by a widow - Under the applicable school of law, a widow generally cannot adopt without the authority of her deceased husband.
(B) Custom - Proof of custom - A custom allowing a widow to adopt without the husband's authority can be established through evidence of widespread practice within a specific community and the fact that such adoptions were not challenged on the ground of lack of authority.
(C) Migration - Law of migrants - Although migrants are presumed to carry the law of their place of origin, evidence of a deviation from the strict orthodoxy of the original school of law in the new locality can be accepted to establish a prevailing custom.
Facts of the case:
A widow adopted a son after the death of her husband. Following the widow's death, the reversioners of the deceased husband claimed the property, asserting that the adoption was void because the husband had not authorized the widow to adopt. The respondent claimed that a custom within their caste permitted a widow to adopt without such authority. The trial court found no such custom, but the High Court reversed this decision.
Findings of Court:
The court found that the evidence provided by influential members of the community, including multiple instances of adoption that went unchallenged, sufficiently established the existence of the custom. The negative evidence provided by the appellants, who simply stated they were unaware of the custom, was insufficient to disprove the custom, especially as they failed to call community leaders to testify against it.
Issues: Whether a custom existed within the specific caste allowing a widow to adopt a son for her deceased husband without his prior authority.
Ratio Decidendi: The court held that the burden of proof lay with the party asserting the custom. Where evidence of widespread practice is provided by reputable members of the community and where such practices were historically accepted without challenge, the custom is established, overriding the general requirements of the school of law. The fact that the custom prevailed in the region of origin further corroborated its validity.
Result: Appeal dismissed.
Legal Category Hierarchy
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family law
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adoption
- widow's right to adopt
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succession
- reversioners' rights
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adoption
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practice and procedure
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evidence
- proof of custom
-
evidence
Judgement
Appeal (No. 30 of 1943) from a decree of the High Court (December 18, 1941) which reversed a decree of the Court of the District Judge, Chhindwara (September 30, 1938).
The suit out of which this appeal arose was brought on July 28, 1937, by the appellants, the sisters and reversioners of one Atalsingh, who died in 1918, a member of the Raghubansi caste, who lived in the Chhindwara district of the Central Provinces, claiming a declaration that they were entitled to all the property left by Atalsinghs widow, who had remained in possession of her husbands property until her death in 1937. The respondent (defendant) claimed the suit property as the son adopted to Atalsingh by his widow in 1935, and the main question in this appeal was whether there was a custom in the Raghubansi caste that a widow can adopt a son to her deceased husband without his authority.
The trial court held that there was no such custom, but, on appeal, the High Court (Stone C.J. and Bose J.) held that there was such a custom.
The facts appear from the judgment of the Judicial Committee.
1944. July 3, 4. Sir Thomas Strangman K.C. and Wallach for the appellants. The parties are governed by the Benares (Mitakshara) school of HINDU LAW , which prevails in Oudh and also in the Central Provinces, and according to which a widow cannot adopt without the authority of her husband. Two cases have come before the courts of adoption by a Raghubansi widow without her husbands authority, one from Oudh, Bishwa Nath Singh v. Jagal Kishore (( 1923) L. R. 50 I. A. 179.), and the other from Kandish, Babu Motising v. Durgabai (( 1928) I. L. R. 53 B. 242.). In the former case, however, a. family custom, as distinct from a community custom, was alleged and found proved. That family custom was proved from entries in wajib-ul-arzes of eight villages which had been recorded in the settlement of 1871, and that case is entirely different from the present, which is not a question of a family custom, and in which there is no evidence of any entries in wajib-ul-arzes or any other village records. In the latter case (( 1928) I. L. R. 53 B. 242.) it was held, first, following decisions of the Board, that it must be presumed until the contrary is proved, that those people must have brought their law with them, and consequently must, unless the contrary was shown, be governed by the Benares school; secondly, that the alleged adopted son had failed to show that they had after their arrival in Kandish adopted the Bombay school of the Mitakshara under which the authority of the husband is not required. It would appear that the main prop of the High Courts judgment is Bishwa Nath Singhs case (( 1923) L. R. 50 I. A. 179.). Chandika Bakhsh v. Muna Kuar (( 1902) L. R. 29 I.
A. 70, 75) is a similar Case. The appellants answer to Bishwa Nath Singhs case (( 1923) L. R. 50 I.
A. 179.) is that the wajib-ul-arzes there are not relevant here because the highest at which the custom could be put was a local custom in Sitapur, and further, there was nothing to show that the custom was one which existed at the time of migration. Custom must be contrued strictly Ramalakshmi Ammal v. Sivananantha Perumal Sethurayer (( 1872) L. R. I. A. Supp. 1, 3.) ; Hurpurshad v. Sheo Dyal (( 1876) L. R. 3 I. A. 259, 285.). The law relating to migration is summarized in Mullas Principles of HINDU LAW , 9th ed., p. 14, para. 14. [Reference was also made to Balwant Rao v. Baji Rao (( 1920)
L. R. 47 I. A. 213.) and to Russells Tribes and Castes of the Central Provinces, vol. 4, PP. 403-5.]
Wallach followed. Bishwa Nath Singhs case (( 1923) L. R. 50 I. A. 179.) does not lay down any local custom, but deals only with the custom of a particular family, and there is no evidence in the present case comparable with that in that case. There is nothing in the District Gazetteer of the United Provinces, vol. 40, Sitapur, p. 50, which deals with any such custom as is in question here, and had there been one it would most lik
