PREMRAJ Vs. CHAND KANWAR

JUDGEMENT

(1.) THE parties to this appeal are Jains of the Khandelwal sect domiciled and resident in Ajmer. THE respondent is the sonless widow of a certain Ratanlal and on May 22, 1919, she executed a deed by which she adopted or purported to adopt the appellant to her deceased husband. After the execution of this deed the parties lived in the same house, but disagreements arose into which it is not necessary to enter. Finally, the present suit was commenced in November, 1930. THE appellant, founding on his adoption, sought inter alia to restrain the respondent from wasting the family property, and the respondent in her defences challenged the validity of the adoption and alleged that Ratanlal had never given her authority to adopt a son to him. This allegation was made because under the general Hindu Law adoption by a widow without the prior authority of her husband is not recognised (Mulla, 7th ed. , p. 516), and because it is also an established principle that the rules of Hindu law generally apply to Jains in the absence of special custom varying the law. Apart from a belated and unsuccessful application to amend his pleadings, the appellant did not allege a special custom by which a sonless Jain widow in Ajmer is entitled to adopt a son without the prior permission of her deceased husband. It was therefore necessary for him, since the respondent gave evidence in support of her allegation that she had no authority from her husband to adopt a son, to maintain that the custom was so well known and so well established by judicial decisions that it was no longer necessary to plead and prove it in the Ajmer Courts. THE Sub-judge, after considering the authorities, upheld the appellant's contention, but his decision was reversed by the Judicial Commissioner of Ajmer-Merwara. THE sole question in the present appeal is whether the decision of the Sub-judge is well founded and ought now to be reaffirmed by this Board.

(2.) THE question is one of degree. It is not doubtful that the ordinary rule is that a party relying on a custom affecting the Jains which is at variance with the ordinary Hindu Law must allege and prove it. But it is equally beyond doubt that a custom which has been recognised and affirmed in a series of decisions, each of them based on evidence adduced in the particular case, may become incorporated in the general law, with the result that the onus of proof no longer lies on those who assert it but upon those who assert an exception to it. THEse are familiar general principles which are acknowledged by both the parties to this appeal, but the respondent denies that the decided cases in which the custom has been found proved have been either so widely distributed or so clearly applicable to all sects of the Jains as to enable a Court to say that the custom has become part of the personal law of the Jains either in India as a whole or in some defined part of India.

(3.) THE Calcutta cases point to the same conclusion, though none of them can be said to have arrived at it. In Manik Chand Gotecha v. Jagat Settani Pran Kumari Bibi (1889) I. L. R. 17 Cal. 518, a Jain widow of the Oswal caste was held entitled to adopt a son without the authority of her deceased husband. THE judgment of the High Court was based partly on evidence and partly upon authority, and the learned Judges thought that the custom was prevalent among Jains generally and was not peculiar to any tribe or caste among them. This was still more clearly affirmed in Harnabh Pershad v. Mandil Dass (1899) I. L. R. 27 Cal. 379. At page 391, the learned Judges of the High Court say: THE defendant is not setting up a local custom; his case is that the customs relied on prevail amongst all the Jains who are now a scattered community. . . It would be impossible to prove the existence of a custom prevalent amongst the Jains generally by evidence of a purely local character, but if the general custom is proved, the question might arise whether the Jains of any particular locality had adhered to or departed from it, and that would depend upon the facts and circumstances of each case. In that case the Court relied both upon previous decisions and upon the evidence of witnesses resident in various districts west of Arrah, where the parties resided, and extending up to Delhi and Kurnal and also witnesses residing in Calcutta, Moorshedabad and Gaya to the east of Arrah. THEse witnesses included persons who belonged to all the principal Jain sects. Upon this evidence the comment was made that a widespread belief in the custom existed and was acted on. But the Court was not yet prepared to hold that the existence of the custom must be recognised without further proof as applicable to all Jains; for it was felt that to do so would be inconsistent with the rule laid down by this Board in Chotay Lall v. Chunno Lall (1878) L. R. 6 I. A. 15 that (p. 28): . . . the customs of the Jains, where they are relied upon, must be proved by evidence, as other special customs and usages varying the general law should be proved, and. . . in the absence of proof the ordinary law must prevail. In Sheokvarbai v. Jeoraj (1920) 25 C. W. N. 273 however, this Board went further in recognising the custom than it had done forty years earlier. THEre had been in the interval authoritative decisions which had shown that the custom, existed in areas about which there had been no decisions in 1878. It was said to be common ground in the case that 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 it is but a short step from this to the proposition that the custom must now be regarded as established in the absence of proof to the contrary.