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1920 Supreme(SC) 52
Privy Council
Ameer Ali, Sir John Edge, Atkinson, Justice Buckmaster, JJ.
Sheokuarbai -Appellant
Versus
Jeoraj -Resopndent
Privy Council Appeal from Nagpur Appeal 5-4-1917,
Decided On : 09-07-1920
T.L. Wilson and Co., E. Delgado, G.C. McNair, E.B. Raikes, J.M. Parikh, H. Mitra, DeGruyther
In the relevant sect of Jains, a valid adoption requires only the giving and taking of the adopted son. Such adoption is valid even if the son is a grown-up married man and is not invalidated by the absence of specific physical rituals or subsequent inconsistent conduct.
Headnote:(A) Hindu Law - Adoption - Jain Customs - In the sect of Jains to which the parties belong, the only ceremony necessary for the validity of an adoption is the giving and taking of the adopted son. A widow of a sonless man can legally adopt a son without express or implied authority from her deceased husband, and the adopted son may be a grown-up and married man.
(B) Validity of Adoption - Ceremony - The physical act of placing the adopted son on the lap of the adopter is not a legal necessity for a valid adoption, provided it is proved that the natural mother gave the son to the adopter and the adopter accepted him as a son to the deceased husband.
(C) Evidence of Adoption - A registered deed of adoption and oral testimony from witnesses (such as an officiating priest and a pleader) regarding the giving and taking of the son constitute strong evidence of a valid adoption. Such evidence outweighs subsequent conduct where the adopted son continues to describe himself as the son of his natural father in records or court applications.
Facts of the case:
A widow of a sonless man sought a declaration that the defendant, the son of her brother, was not the legally adopted son of her deceased husband. The defendant contended that he had been validly adopted by the plaintiff. Evidence was presented including the testimony of an officiating priest and a pleader who witnessed the ceremony, as well as a registered deed of adoption executed by the plaintiff. However, it was noted that the defendant continued to refer to himself as the son of his natural father in business account books and court applications after the alleged adoption.
Findings of Court:
The court found that the adoption was validly performed. The testimony of the priest and the pleader, corroborated by the registered deed, established that the essential requirement of giving and taking had been fulfilled. The court held that the absence of the specific act of placing the son on the lap and the defendant's subsequent use of his natural father's name did not invalidate the adoption.
Issues: Whether the defendant was validly adopted as a son to the plaintiff's deceased husband according to the customs of their sect, and whether the absence of certain physical rituals or subsequent inconsistent conduct negated the validity of the adoption.
Ratio Decidendi: Under the customs of the relevant sect of Jains, the essential requirement for a valid adoption is the giving and taking of the adopted son. Once this is established—particularly when corroborated by a registered deed—the adoption is valid regardless of whether specific physical rituals (like placing the son on the lap) were performed or whether the adopted person continued to use the natural father's name.
Result: Appeal dismissed.
Legal Category Hierarchy
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family law
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adoption
- jain custom
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adoption
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practice and procedure
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evidence
- oral evidence
- documentary evidence
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evidence
Sir John Edge :-
This is an appeal by the plaintiff, Musammat Sheokuarbai, from a decree, dated the 5th April, 1917, of the Court of the Judicial Commissioner, Central Provinces, which set aside a decree of the District Judge of Nimar and dismissed her suit.
The parties to the suit are Sitambari Jains. The plaintiff is the widow of Shrichand Das, Gujrathi, who died about thirty years ago and left no son, but left a daughter who died some years before 1909. The plaintiff in her suit claimed a declaration that the defendant Jeoraj, whose natural father, Punamchand, had been her brother, was not the legally adopted son of her deceased husband. Punamchand died before 1909, leaving his widow Munnabai him surviving, who died before this suit was instituted. The defendant alleged that the plaintiff' had validly adopted him, on 28th June, 1909, as a son to her deceased husband.
The Jains are of Hindu origin; they are Hindu dissenters, and although, as was pointed out by Mr. Mayne in para 46 of his "Hindu Law and Usage"-
Generally adhering to the ordinary Hindu law, that is, the law of the three superior castes, they recognise no divine authority in the Vedas and do not practise the Shradhs, or ceremony for the dead."
The due performance of the Shradhs, or religious ceremonies for the dead, is at the base of the religious theory of adoption, but the Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contrary usage (Mayne's "Hindu Law," paragraphs 148 and 106, and cases there cited).
It is common ground that in the sect of the Jains to which the parties in this suit belong, the only ceremony necessary to the validity of an adoption is the giving and taking of the adopted son. In this sect of Jains the widow of a sonless Jain can legally adopt to him a son without any express or implied authority from her deceased husband to make an adoption, and the adopted son may be at the time of his adoption a grown-up and married man. The question in this case is, was the defendant in fact given by his mother to and taken by the plaintiff as an adopted son to the plaintiffs deceased husband?
The plaintiff in her plaint alleged that she had not legally taken the defendant as an adopted son to her deceased husband according to Jain custom. The defendant in his written statement alleged that he
"Was given by his natural mother in adoption to the plaintiff by placing him on the lap of the plaintiff, who accepted him as the adopted son of her late husband."
The defendant supported that allegation by his evidence as to how the adoption was made. Probably it was his pleader who was responsible for the allegation in the written statement that the defendant's natural mother had placed him upon the lap of the plaintiff. It was in the opinion of their Lordships an unnecessary allegation. So long as it was proved that the defendant's natural mother did in fact give her son to the plaintiff as an adopted son and the plaintiff did in fact accept him as an adopted son to her deceased husband the adoption was valid, although the defendant was not placed on the lap of the plaintiff. The Trial Judge, finding that there had been no physical giving and taking of the defendant as an adopted son, made the declaration which the plaintiff claimed. The learned Judges of the Court of the Judicial Commissioner on appeal, finding that in fact there had been a valid adoption although the defendant had not been put upon the plaintiff's lap, set aside the decree of the Trial Judge and by their decree dismissed the suit. From that decree this appeal has been brought.
Shrichand Das Thakurdas was a moneylender and cloth merchant whose principal place of business and residence was at Burhanpur; he had a branch place of business and a house at Ellichpur, which is about 500 miles distant from Burhanpur, and since his death the plaintiff has carried on the money-lending and cloth business at Burhanpur and at the branch at El
