MUSAMMAT BALLO Vs. RAM KISHAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of a house and some landed property with mesne profits. The plaintiff, who is one of the daughters of Kesrimal deceased, alleged, that on the death of Kesrimal, his estate was inherited by his widow, Musammat Soliani, who died on the 6 of May 1918, and that the plaintiff being the poorer of the two daughters, was entitled to inherit the estate in preference to Mvsammat Sunder, the mother of Ram Krishna, the principal defendant. On behalf of the defendant, it was pleaded that; he had been adopted by Kesrimal in his lifetime some 24 years ago and that there was a custom prevailing among the Agarwala Vaishas to adopt a daughter's son, and, further, that the present claim was barred by time.

(2.) Both the Courts below have found that the adoption did in fact take place and have also accepted the defendant's evidence as establishing the existence of the alleged custom. The plaintiff comes here in second appeal and urges that the evidence adduced to prove the custom permitting such adoption is legally insufficient.

(3.) In support of the custom, the defendant had relied on extracts of wajib-ul- nraiz relating to some 13 villages in which a general custom to adopt a daughter's son or a sister's son was recited, but there was no specific reference to Agarwala Vaishas in them. That evidence has not been relied on by either of the Courts below. In addition to this there were three judgments. In the first one the custom was found not to have been established. In the second one the Trial Court found that the custom had been proved but on appeal the High Court decided the case on another ground. In the third and the last case, the learned Additional Subordinate Judge of Saharanpur in an elaborate judgment found that the custom had been fully established, He cited 45 instances which had been proved in that case. In the present case the defendant examined some 33 witnesses. Thirty of these spoke of the general custom permitting the adoption of a daughter's son prevailing among the Agarwala Vaishas and they were able to cite at least 34 instances, out of which 20 instances have been accepted by the Courts below as being instances where adoption either of a daughter's son or a sister's son had taken place. Out of these 20 instances, 11 are instances of the adoption of a daughter's son.