RAMKISHORE Vs. JAINARAYAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in the suit from a decree, dated the 22nd October 1917, of the Court of the Judicial Commissioner, Central Provinces, which reversed a decree, dated the 7th August 1916, of the District Judge of Wardha, and dismissed the suit. The suit is a suit on title for possession of the properties mentioned in the amended plaint. The plaintiffs are the sons of Kedarnath, who is one of the defendants. The principal defendant is Jainarayan, and it is his title to the properties claimed by the plaintiffs which is in question. Jainarayan's title depends on whether he was validly adopted as a son to Rambilas, who was a brother of Ramnath who had adopted Kedarnath. The following pedigree will show the position of the parties:--

(2.) THE parties to the suit are Hindus of the Dhusar caste. The members of the Dhusar caste claim to be Brahmins, but that claim is not admitted, nor is it proved in this suit. Ramkaran and his two sons lived at Kutubpur in the District of Gurgaon, which was a district of the North Western Provinces until after the mutiny of 1857, when, in 1858, it was transferred to the Punjab. Balaram and his descendants continued to live at Kutubpur until after the adoption of Jainarayan, the validity of which is in dispute in this suit. In or about the year 1836, Harbhajan migrated from Kutubpur to the Central Provinces and settled at Ashti in the District of Wardha, and acquired considerable property which included the immoveable property to which the suit relates. It is admitted that Harbhajan carried his personal law with him, and that this appeal has to be decided in accordance with that personal law. Harbhajan died in 1869, leaving his sons Ramnath and Rambilas him surviving. Ramnath married Sunder Bai, and, being childless, he adopted Kedarnath as a son to him. Ramnath died in 1883, The four plaintiffs are the sons of Kedarnath. Rambilas married Jaidevi Bai and died childless in 1881, leaving his wife Jaidevi him surviving.

(3.) THE plaintiffs' case is that the law of the Mitakshara, as recognised by the School of Benares, applies to the family, and that no custom at variance with that law has been proved; and, consequently, that the adoption of an orphan, as Jainarayan was when he was adopted, is invalid. The case of Jainarayan is that the Dhusars of the District of Gurgaon are governed by a custom and not by the law of the Mitakshara, as recognised by the School of Benares, and that according to that custom the adoption of an orphan is valid. It was for Jainarayan to establish that custom.