SUGANCHAND BHIKAMCHAND Vs. MANGIBAI GULABCHAND

JUDGEMENT

(1.) THE plaintiff-appellant, whose suit for partition of his half share in joint family properties has been dismissed by the trial Court, claims to be the adopted son of one Bhikamchand, brother of Gulabchand defendant No.1, the adoption having been made by Bhikamchand's widow Jadavbai defendant No, 2 on May 8, 1936.

(2.) GULABCHAND and Bhikamchand were members of a joint family. Bhikamchand died in April, 1926. In 1927 Jadavbai wanted to adopt a certain boy, not the plaintiff, but defendant No.1 objected and the idea was dropped. In July, 1929, there was an agreement between defendant No.1 and Jadav-bai making provision for her residence and maintenance. On April 30, 1936, Jadavbai sent a formal notice to defendant No.1 announcing her intention of making an adoption. Defendant No.1 replied to the notice on May 5, 1936, saying that Jadavbai had no right to make an adoption and that he was strongly opposed to it. However, the adoption took place. The fact of adoption was at first disputed in the lower Court but was afterwards admitted. Defendant No.1 refused to give the plaintiff a share in the family properties, and this suit was brought in September, 1936.

(3.) JAINS are ordinarily governed by Hindu law, as was held in Chotay Lall v. Chunno Lall (1878) L.R. 6 I.A. 15, and many other cases. An alleged custom contrary to the Hindu law must be proved, but, as pointed out in Banarsi Das v. Sumat Prasad (1936) I.L.R. 58 All. 1019, when a custom has been repeatedly brought to the notice of the . Courts and has been recognised by them regularly in a series of cases, it attains the force of law, and it is no longer necessary to assert and prove it by calling) evidence in each case. Another proposition of law as to which there is no dispute is that where a Hindu family migrates from one province to another, the presumption is that it carries with it its personal law, i.e. the laws and customs as to succession and family relations prevailing in the province from which it came. It is a rebuttable presumption, and the plaintiff in this case has alleged that his family (meaning the family of the parties) has adopted the law of Bombay. No attempt, however, has been made to prove this allegation, and we must take it that the relevant law and custom, is that of Jodhpur. Cases such as Bhimabai v. Gurunathgouda Khandappa-gouda (1932) L.R. 60 I.A. 25, s.c. 35 Bom. L.R. 200 which deal with the Mitakshara law, as interpreted and understood in the Mahratha districts of the Bombay Presidency, have no application here.