The main legal point established in the judgment is the recognition and application of customary law in determining the validity of adoptions, specifically the validity of adoption of orphans under the customary law of the Dhusars in the Gurgaon District.

Judgement

Appeal (No. 14 of 1919) from a judgment and decree of the Court of the Judicial Commissioner (October 22, 1917) reversing a decree of the District Judge, Wardha.

The suit had been on appeal to the Privy Council in September, 1913, the appeal being reported at L.

R. 40 I. A. 213. On that occasion the suit was remanded for trial. The principal question arising in the present appeal was whether the first respondent (the principal defendant) Jainarayan had been validly adopted by Jaidevi Bai as a son to her deceased husband Rambilas. The fact of the adoption, which took place in 1886 or 1887, was not in dispute. The appellants-plaintiffs alleged that the family was governed by the Mitakshara, and that Jainarayan being an orphan the adoption was invalid. The family were Hindus of the Dhusar caste who about 1836 had migrated into the Central Provinces from the Gurgaon District of the Punjab. The defendants pleaded that the family was governed by the customary law of the Gurgaon District and not by Hindu law, and that the adoption was valid according to the customary law. The plaintiffs by their reply pleaded (inter alia) that the Dhusars were not agriculturists and consequently were not governed by any tribal custom.

The relevant facts appear from the judgment of the Judicial Committee.

The District Judge in the course of his judgment stated that it was admitted that the family had not changed its law and that its rights were to be determined according to the law of the Gurgaon district. He, however, was of opinion that the Dhusars were non-agriculturists, and that the onus was upon any Dhusar asserting that he was governed by customs prevailing in the Punjab to prove it. In his view the Dhusars were governed by the Mitakshara law modified by certain customs. He found that the adoption of one orphan at least among the Dhusars was proved, but held that that was not sufficient to establish the custom alleged.

An appeal to the Court of the Judicial Commissioner was allowed, it being held that the custom alleged was established.

The learned judges said that the view expressed in Rattigans Digest of the Customary Law of the Punjab, pt. 1, that in the Punjab custom was the " first rule of decision " in question regarding (inter alia) adoption appeared to be the accepted interpretation of s. 5 of the Punjab Laws Act (IV. of 1872). They pointed out that although the Dhusars were not agriculturists, certain of the customs recorded in the revaj-i-am of the Gurgaon District (See Settlement Report Gurgaon District, 1872- 1883, Appx.) were expressly stated therein to apply to Dhusars. Those customs showed a departure from the law of the Mitakshara. In the Punjab there was no religious element with regard to adoption, and they considered that once that element was eliminated the burden of proving that an orphan could not be adopted was upon the persons so asserting. That being the case they came to the conclusion that the evidence was sufficient to establish the custom.

1921. June 14, 16. De Gruyther K.C. and Parikh for the appellants. The family migrated to the Central Provinces in 1836, and carried with them their personal law, which was the law of the Mitakshara. The Gurgaon district did not become part of the Punjab until 1858, and the revaj-i-am was not prepared until 1878. The onus was upon the respondents to show that the customs alleged form part of the law governing the Dhusars in the Gurgaon District in 1836 Balwant Rao v. Baji Rao. (( 1920) L. R. 47 I. A. 213.) That onus was not discharged. Further the Dhusars are not agriculturists. It has been held in several cases in the Punjab that Hindu law governs non-agriculturists residing in a city, in the absence of proof of specific custom modifying that law see Sardul Singh v. Karm Singh. ( 1910 P. R. No. 30.) In Chiman Lal v. Hari Chand (( 1913) L. R. 40 I. A 156.) in which the Board held that a custom allowing the adoption of an orphan had been established the parties were agric