HIRABHARTHI JAMNABHARTHI Vs. BAI JAVER

JUDGEMENT

(1.) The question in this case is as regards the validity of the adoption of defendant No. 1 by Dahi, the junior widow of one Jamnabharthi who died in March 1921 leaving an infant son, Purshottamgir, and two widows, Javer (senior) and Dahi (junior) On February 20, ln21, he left a will authorizing Dabi to make an adoption after the death of his son Purshottamgir. Purshottamgir died in August 1921, and on September 13, Bai Dahi adopted defendant No. 1. The senior widow Javer has brought this suit for a declaration that defendant No. 1 is not the adopted son of her husband Jamnabharthi.

(2.) Before the Subordinate Judge the defendants set up the custom of adoption of a chela by the Mathadhipati and the custom of the adoption of a chela by a widow if authorized by the Mathadhipati. The learned Subordinate Judge came to the conclusion that Gharbhari Qosais of Charotar did not countenance the right by birth of their sons in the ancestral property, and that there was no right of the sons by birth in this community and held that the adoption was valid, though he came to the conclusion that the custom set up of adopting a chela by the Mathadhipati and the custom of adoption by the widow being authorized by the Mathadhipati to adopt a chela were not proved.

(3.) The lower appellate Court came to the conclusion that Gharbhari Goaais of Charotar, i. e., a tract of Gujarat lying between the rivers Mahi and Sabarmati, form a distinct sect by itself governed by the same rules of property and succession which apply to secular masses under the Hindu law, including the son's right by birth in ancestral property. With regard to the practice of making chelas by widows, the only instance before the Court was that of an adoption by Amba, and the learned Judge came to the conclusion that the solitary instance was not Patkar J. sufficient to prove the custom of making chelas by widows among the Gharbhari Goaais.