KESARBAI Vs. INDARSINGH ALIAS ISHWARKUMAR

JUDGEMENT

(1.) The only question raised in this appeal is whether it has been proved that there is a custom in the Raghubansi caste, to which both parties belong, that a widow can adopt a son to her deceased husband without his authority. The burden of proof was admittedly on the respondent, who was the defendant in the suit. The District Judge at Chhindwara held that the custom was not proved; his judgment was reversed by the High Court at Nagpur, who dismissed the plaintiffs' claim, and ordered the plaintiffs to place the defendant in possession of the property to which as an adopted son he was entitled.

(2.) The facts are that one Atalsingh, a member of the above mentioned caste who lived in the Chhindwara district of the Central Provinces died in 1918 leaving a widow but no issue. The widow remained in possession of his property till her death in June 1937. In August 1935 the widow adopted the defendant and an adoption deed was duly registered before the Sub-Registrar on 24 August of that year. In the deed the widow stated that her husband had empowered her to adopt any boy according to her own desire at any time, to continue his name. When the widow died the plaintiffs who are the sisters and reversioners of Atalsingh endeavoured to take forcible possession of the property; a riot ensued and the natural father of the defendant was murdered, a matter which might well discourage persons from coming forward to give evidence. When the riot took place the police intervened and placed a Receiver in possession under S.145, Criminal PC. Thereupon the plaintiffs brought this suit claiming a declaration that they were entitled to all the property left by the widow and that the defendant had no title or interest therein. As their Lordships are of opinion that the judgment of the High Court in favour of the defendant should be affirmed they do not think it necessary to discuss whether the form of action was technically correct and there was no argument on the point. In their written statement the material allegations made by the plaintiffs were that there had been no adoption in fact of the defendant by the widow and that the adoption, if any, was void because no authority had been given to the widow by her deceased husband to adopt a son. In his first written statement the defendant besides asserting the fact of his adoption, relied only on the allegation that the widow had been authorised by her husband to adopt a son, but afterwards he obtained leave to amend and then set up that there is a custom of the caste that a widow can adopt a son to her deceased husband without his permission or authority. The issue of authority was decided against him in both Courts and no more need be said about it.

(3.) It appears from works of authority cited in the judgment of the High Court that the Raghubansis are a class of Rajputs of impure descent. They appear to have originally emigrated from Ayodhya in Oudh and to have found their way not only to the Central Provinces but the Gwalior territory, the Kandish district of Bombay, Bhopal and other places. Originally it is not disputed that they were governed by the law of the Burans (Mitakshara) School under which a widow could not adopt without authority. In some parts of India, it is clear that they have departed from the strict orthodoxy of the Benares school; the High Court quote from the Nagpur Settlement Report of Sir Reginald Craddock in which he says that their religion is unorthodox and they have gurus or priests of their own caste, discarding Brahmans, and in 50 IA 1791which related to a family in the district of Sitapur in Oudh, and to which further reference will be made hereafter, a finding of the very custom that is in question in the present appeal was upheld by their Lordships' Board. Now the evidence of the custom which was rejected by the trial Judge and accepted by the High Court was that, among others, of five malguzars residing in different villages and three different districts. Other witnesses came from other villages in two different districts. They were for the most part men of some standing and position, and their Lordships cannot but agree with the learned Judges of the High Court when they say: "We see no reason why these persons important and influential in their own ways and scattered over such wide areas should all combine to give false evidence against the plaintiffs."