LAXMIBAI Vs. PUSHPABAI

JUDGEMENT

(1.) THIS is second appeal of the Plaintiff Laxmibai who instituted a suit for recovering, Rs. 2,150/ - (advanced from 30 -12 - 1944 to 14/2/1945 to the minor's natural father) plus Rs. 357 -6 -0 as interest total Rs. 2497/6/ - from the share of deceased minor Narendra Kumar. It was averred that the minor boy Narendra Kumar S/o Champalal was adopted by the Respondent on 27 -11 -1943 according to the custom prevalent amongst Oswal Jain Mahajans, and soon after the adoption, the real lather of the minor, Champalal, fearing dissipation of the property of the minor by the adoptive mother, started the guardianship Case No. 65/44 in the District Judge's Court and on 22 -9 -1944 a partition suit was filed by him as next friend of the minor in the Indore State High Court for partition of the property.

(2.) THE Defendant resisted the suit on the ground that there was no adoption and that these was no dissipation of the properties and that it was not necessary for the next friend and natural father of the minor to incur any costs. A suit could have been filed in 'forma pauperis'. It was further alleged that if any sum was borrowed by Champalal it was borrowed by him in his personal capacity and the minor's estate cannot be held liable for it. It was denied that the alleged costs incurred in litigation were not necessaries of the minor within the meaning of law; and it was added that the Plaintiff had no right to be reimbursed from the property left by the minor.

(3.) THE first appellate Court reversed this finding; after discussing the evidence it came to the conclusion that adoption of the minor Narendra Kumar by the Respondent did not take place and cited - 'Prem Raj. v. Mt. Chand Kunwar' : AIR 1948 PC 60 (B) for the proposition that the custom of sonless Jain widow adopting a son to her deceased husband without a prior authority from him was so well known and well established by judicial decisions that it was no longer necessary to prove and plead it and that except in case of Madras and the Punjab, in the rest of India, the onus would now lie upon those who deny the existence of this custom. As regards the dictum of their Lordships of the Privy Council we have no doubt that the principle of law enunciated is the correct one and the finding of fact arrived at by the first appellate Court is binding on us in second appeal.