MATHURA DASS KARNANI Vs. SRIKISSEN KARNANI

JUDGEMENT

(1.) This is an appeal by the defendant No. 1 against the Judgment of the learned Subordinate Judge of Darjeeling, dated the 2nd March 1915, decreeing the plaintiffs suit. The plaintiff brought his suit on the allegation that he was the adopted son of a deceased Hindu of the Maheswari caste of Bikaneer--the name of the person who had adopted being Amar Chand Karnani--and he sought to recover from Mathura Das Karnani and others, who were the natural relations of the deceased Amar Chand Karnani, a certain property and for consequential relief by way of accounts and discovery. The case set up by the plaintiff was that there was a Hindu of the Maheswari caste called Swairam Karnani. He had three sons, Katchi Das who was the father of Mathuradas, the defendant No. 1, Amar Chand Kernani the adoptive father of the plaintiff, and Jaithrupa who was the husband of the defendant No. 3. The plaint alleged that Amar Chand had been adopted by one Gangadas and, therefore, according to the ordinary rules of the Hindu Law, Amar Chand ceased on that adoption to be member of the family of Swairam and passed into the family of Ganga Das. That allegation was made distinctly in the pedigree that formed a portion of the plaint and it was not traversed in the written statement nor in the course of the trial. It is, therefore, an admitted fact that Amar Chand passed out of the family of Swairam and passed into the family of Ganga Das. No evidence was offered as to who Ganga Das was. There has been a suggestion made in reply that Ganga Das was some sort of relation of Swairam and that, therefore, although Amar Chand in his adoption passed out of the family of Swairam, it does not follow that the other sons of Swairam, who remained joint with their father, ceased to be the reversionary heirs of Amar Chand on his death. That case was not made or suggested in the course of the proceeding and it is much too late in the course of the reply to put forward a case unsupported by any evidence or any statement made in the Court below.

(2.) Now, the facts are these--and these facts are not disputed. The three sons of Swairam had built up a business in the district of Darjeeling. Katchi Das, the eldest son, died in 1880 and his only son and heir is the defendant No. 1. Jaithrupa died in 1888 leaving his widow the defendant No. 3. Amar Chand died in 1899 after having been adopted by. Ganga Das, leaving him surviving his widow the defendant No. 2. The business after the death of Amar Chand was carried on by the 1st defendant. There were some disputes between the defendant No. 1 and the widow of Amar Chand, the defendant No. 2, in the year 1803 and apparently her remittances that she had been accustomed to get from the business in Darjeeling were stopped. She then went to Darjeeling and there the parties arrived at certain agreements which were reduced in writing, the agreements being dated the 21st April 1903. Under the terms of those agreements, a sum of Rs. 7,500 was deposited with certain Marwari bankers", the interest being payable to the defendant No. 2 for her maintenance and the capital sum to go to the defendant No. 1 on the death of the defendant No. 2. The documents seem to me to have been quite clearly executed on the footing that the defendant No. 1 would on the death of the defendant No. 2 become entitled to the estate of the deceased Amar Chand Karnani. The agreements do not seem to have put an end to the disputes between the parties, and in 1903 the defendant No 2 is said to have adopted the plaintiff as the adopted son of her deceased husband Amar Chand Karnani.

(3.) The main controversy in this case has turned on the question as to whether the evidence establishes the case that the plaintiff was duly adopted. Both parties admitted that the parties were governed by the Mitakshara School of Hindu Law. The learned Counsel for the defendant- appellant in opening the appeal asserted that the admission meant that the rights of the parties were regulated by the Benares School of Hindu Law. But after consideration of the evidence the learned Counsel was bound to admit that the evidence established important variations applicable to the parties which were not in accordance with the opinion held by the Benares School of Hindu Law. It is quite true that he did not admit that the rights of adoption applicable to the parties were different to those laid down by the Benares School of Hindu Law; but he was bound to admit that in certain particulars the rights of the parties in this case were shown to be different from those prevailing in the Benares School of Hindu Law. It seems to me that that is an important fact, because you at once get rid of the suggestion put forward that the admission meant that the parties were governed by the Benares School of Hindu Law simpliciter because it is admitted that there were variations from that. The Mitakshara as varied from the Benares School applies in a large portion of India. It applies in Bombay, Western India and Southern India, and in all those different Schools of Law there are variations of Mitakshara not consistent with the view adopted in the Benares School. It seems to me quite clear in the present case that the admission did not amount to a statement that the rights of the parties as to adoption could be ascertained from the principles held by the Benares School of Hindu Law. If you get to that, you have got to look at the evidence. The evidence that has been given in this case as to what is requisite for a valid adoption is not the evidence of learned persons but the evidence of shop keepers, Marwaris being largely a trading caste. These shop, keepers, it may be said, do not know the principles of the Hindu Law, but the evidence shows without doubt that these shopkeepers have undergone the process of adoption, as many as four times. The evidence also shows that the ceremonies required for a valid adoption by a person belonging to this class are not formal. The evidence is that on the adoption of a boy the guests and relations receive coconuts and sweets and the adopted son has got to have payjama placed on his head. These seem to be the only ceremonies that are requisite for a valid adoption. The adoption is not also limited, according to the evidence, to the case of children of tender age. There may be an adoption, as in this case, of a person of full age and it does not matter whether that person is married or not. That is the evidence in this case and the learned Judge says that the custom seems to be the same as that obtaining in Bombay or in Western India. It has been suggested that the learned Judge of the Court below stated that the law as applicable in the Presidency of Bombay applied in the State of Bikaneer. I do not read the judgment of the learned Judge in that way. I think what he remarks is that the evidence shows that the law as to adoption is the same in Bikaneer as in Western India.