Judgement

Appeal from a decree of the High Court (March 5, 1908) reversing a decree of the Subordinate Judge of Saharanpur (November 8, 1905) and dismissing the appellants suit.

The decree appealed from declared that the respondent Jambu Parshad was adopted by Asharfi Kunwar, since deceased, and that his adoption was valid.

The appellant sued as the nearest reversionary heir of Lala Mittar Sain, deceased, a wealthy banker and rais of Saharanpur and of the Jaini caste, who died in 1890, leaving two widows and a daughter, but no male issue. The senior widow, Asharfi Kunwar, was living at the date of suit, and was defendant No. 1, the respondent being defendant No. 2. The plaint alleged that Asharfi had given out on April 14, 1900, that she had adopted the respondent Jambu Parshad, and had on that day executed a deed of adoption in his favour. It submitted that Asharfi had no power alone to adopt in the lifetime of her co-widow that the respondent was not given in adoption by any one with legal power to do so and that owing to the respondent being married and twenty-three years old his adoption was invalid. It prayed that it might be declared that the adoption of Jambu Parshad alleged by Asharfi Kunwar never in fact took place, that it was quite illegal and opposed to Hindu law and custom, and that the document of April 14, 1900, was null and void as against the plaintiff.

The written statement contended that " among the Jains adoption is no religious ceremony and that under the law and custom there is no restriction of age or marriage among them."

The fourth issue was, "How does the fact that before the alleged adoption Jambu Parshad had been married and how does his age at the time of adoption affect the claim? Whether according to custom or law such an adoption could be validly made."

Upon this issue the Subordinate Judge held that "in these provinces according to the doctrine sanctioned by the Benares School of Hindu Law a married man of the three regenerate classes cannot be adopted whether he be of the same gotra as the adopter or not." Also " that the existence of a custom of -adoption of a married man by Agarwal Jains and specially by a widow (for here the adoption has been made by a widow without the consent of the nearest reversionary heir of Mittar Sain) has not been proved by the defendants." The Subordinate Judge also recorded that it was admitted that " in these provinces adoption was made in the Dattaka form only by the Agarwal Jainis." The High Court, on the other hand, said that " in view of the ruling of their Lordships of the Privy Council that in Jain cases it rests on the party alleging a custom or practice at variance with that of orthodox Hindus to prove his allegation we have treated this burden as one which lay on the defendant-appellant. This onus he has in our judgment satisfied, and we remain of the opinion which we expressed in Manohar Lal v. Banarsi Das (( 1907) I. L. R 29 Allah. 495.) that the marriage of a Jain is no bar to his adoption."

The decision of the case turned upon the evidence of custom, and evidence relating thereto was adduced by witnesses from Jaipur and from the five districts of Saharanpur, Muzaffarnagar, Meerut, Delhi, and Karnal.

The Subordinate Judge said of the Jaipur evidence, " Twenty-one witnesses were examined by commission at Jaipur and one at Khurja in the district of Bulandshahr by the defendants. Their evidence, it is admitted, does not prove anything in favour of the alleged custom." They " say that there, with the consent of heirs, turban is tied round the head of a relative of a deceased with the consent of his relatives, and this is adoption."

The High Court said that the evidence of the Jaipur witnesses was relied on by the defendants in appeal and "has some value as shewing that Agarwala Jains, in the Jaipur State, which borders upon the Agra district, adopt married men," but that the ritual " is unlike that which prevails amongst Jains in this province."

In order