YAMASHETTI BHAUSHETTI Vs. ASHOK BHOMSHETTI

JUDGEMENT

(1.) . This appeal arises out of a suit brought by respondent No.1 against the appellants, who were defendants Nos. 1 to; 4 in the trial Court, to recover by partition a half share in certain moveable and immove-able properties on the ground that he was the adopted son of one Bhomshetti. Bhomshetti, who died about the year 1905, was the brother of defendant No.1 Yamashetti. Defendants Nos. 2, 3 and 4 are the sons of defendant No.1. Bhomshetti died in union with his brother Yamashetti. The plaintiff alleged that he had been adopted by Janakibai, the widow of Bhomshetti, who was defendant No.5 in the case, on December 13, 1932. The parties are Jains. The plaintiff's case was that at the time of Bhomshetti's death his wife, defendant No.5, was pregnant. Bhomshetti told his wife at the time of his death that if she gave birth to a daughter she should take that daughter's son in adoption. A daughter was born to Bhomshetti after his death and in accordance with the direction of Bhomshetti the plaintiff was taken in adoption by Jankibai in 1932, a deed of adoption being executed the same day. It was the plaintiff's contention that apart from the direction given by Bhomshetti to his wife the plaintiff's adoption would be valid both according to Hindu law and according to the custom prevailing among the Jains in the Southern Maratha country. It was also contended that according to the custom of the Jain community the adoption of a daughter's son was valid. The defendants disputed both the factum and the validity of the plaintiff's adoption in the trial Court. The learned Judge held that the factum of the adoption was satisfactorily proved; that the alleged authority given by Bhomshetti to his wife to adopt a daughter's son, in case a daughter was born to him, had not been proved; that the allegation that there was a custom among Jains permitting a widow in a joint family to adopt without the consent of her husband's coparceners had also not been proved; but he held that as Jains are governed by the ordinary Hindu law, except where any special custom to the contrary is proved, and as according to Hindu law a widow in a joint family can adopt without the consent of her husband's coparceners, the plaintiff's adoption was valid. He therefore made a decree in favour of the plaintiff. Against thsit decree defendants Nos. 1 to 4 have come in appeal.

(2.) THE factum of the plaintiff's adoption has not been challenged before us in the appeal; nor has the finding of the learned Judge in favour of the plaintiff as regards the prevalence among Jains of the custom of adopting a daughter's son been challenged. THE validity of the plaintiff's adoption had also been disputed in the trial Court on another ground, namely, that Bhomshetti's widow, defendant. No.5, had taken a vow of renunciation-tyagavrata -and was in consequence incapacitated from adopting. On that point also the finding of the learned Judge was against the appellants and that finding; has also not been challenged before us.

(3.) MUCH has been made in the arguments before us of a remark made by Mr. Justice Fulton in Amava v. Mahudgauda (1896) I.L.R. 22 Bom. 416 that " by custom the Jains are governed in matters of adoption by the ordinary rules of Hindu law." It was contended that the principles of Hindu law were applicable to Jains not as a matter of law, but as a matter of custom, and that therefore if it could be shown that a particular principle of Hindu law was either repugnant to or had no foundation in the tenets of the Jain religion, that principle could not be applied to Jains. I am not prepared to accept the distinction which is sought to be made as regards the applicability of Hindu law to Jains on the strength of this remark. Mr. Justice Fulton bases his remark on the decision in Bhagvmdas Tejmal v. Rajmal and, as I have pointed out, the decision in that case clearly supports the view that the ordinary Hindu law is applicable to Jains as a matter of law and not as a matter of custom, In the later case of Sheokumhcd v. Jeoraj (1920) 25 C. W. N. 273, P.C. their Lordships of the Privy Council again said that Jains are of Hindu origin and Hindu dissenters, and although they recognize no divine authority in the Vedas and do not practise the shrddhas or ceremonies for the dead', they have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contrary usage.