Judgement

Appeal (No. 72 of 1921) by special leave from a judgment and decree of the High Court (March 26, 1918) affirming a decree of the Additional Subordinate Judge of Bhagalpur.

The appellants sued to recover possession of an impartible estate known as Lachmipur Raj from the original defendant, the adopted son of the last holder Lalit Narain Deo who died in 1871 without issue. The present respondent was the executrix and widow of the defendant since deceased.

The facts of the case appear from the judgment of the Judicial Committee. The only question upon the appeal was whether in the family an adopted son was entitled to inherit, and as to the onus of proof of the custom of the family relative to that question.

The Subordinate Judge dismissed the suit. He found upon the eighth issue that there was no family or clan custom which barred inheritance by adoption.

The High Court upon appeal was of opinion that an application by the plaintiffs to amend their plaint was rightly rejected, but further evidence as to the origin of the estate was admitted on the ground that it was relevant to the issues framed.

The learned judges (Chapman and Atkinson JJ.) exhaustively considered the evidence; after stating that the origin of the community was lost in obscurity, they said "There is reason to believe that it was non-Hindu in origin but the members have all now accepted Hinduism to such a degree that the burden of proof lies upon the plaintiffs to prove that the community have not assimilated the law of adoption. The adoption which is impugned was an adoption which was brought before the public both at the time when the ceremony was performed and at the subsequent installation and when the estate was taken charge of by the Court of Wards on behalf of the adopted boy, yet it excited no comment of any kind in the community. It has been shown that the matter came before the Courts either directly or indirectly upon several occasions but that it occurred to nobody to assert the custom before the year 1904 some 19 years after the public adoption ceremony took place..... There is ground for believing that the Lachmipur family was admitted to Hinduism as lately as 1800. But in 1874 it was stated in a judgment that the Mitakshara law,’ admittedly governs the Lachmipur family. Having regard to the fact already referred to, that the adoption excited no comment in the family and the indication that the idea of alleging that the adoption was contrary to custom originated elsewhere, we are of opinion that the family has assimilated the law of adoption and that there is no custom in it to the contrary." The appeal was accordingly dismissed.

1922. Oct. 21; Nov. 2, 3. De Gruyther K.C., Dunne K.C., Dube, and C. S. Chaudhuri for the appellants. The question is whether in this family an adoption confers the right of inheritance. The estate has been in existence as an impartible raj for centuries, the succession being governed by the custom of lineal primogeniture. No adoption appears to have been attempted before 1885 in this gaddi; adoption in other gaddis could not impose upon it the custom. The evidence shows that the family was not Hindu in the full sense of the word; Fanindra Deb Baikal v. Rajeswar Dass (L.

R. 12 I. A. 72.) therefore applies. Having regard to the questions of law involved, especially to that of the onus of proof, there were not such concurrent findings as are binding upon the appellants.

Sir George Lowndes K.C., Kenworthy Brown, and McNair for the respondent. In Fanindra Deb Baikal v. Rajeswar Dass (Ibid., at p. 81.) the judgment distinguishes a case where it is proved that the family "was generally governed by Hindu law." It was here rightly held upon the evidence that that was so as to this family. That position was established by (a) the pleadings, by which the appellants stated themselves out of Court; (b) the census report of 1872, which classed the community as Hindus; (c) decisions of the Courts, which for over 100 years have