BABU MOTISING Vs. DURGABAI

JUDGEMENT

(1.) This is an appeal by the minor defendant No. 1, Babu Motising alias Baliram Dagdusing, against the decision of the learned trial Judge in favour of the plaintiff Durgabai, the widow of one Dagdusing, to the effect that the deceased Dagdueing was governed by the Benares school of Hindu law at the date of his death, and that accordingly it was necessary for the validity of any adoption by his widow that she should have been given express authority by the deceased, and that on the facts of this particular case no express authority was proved. Before the learned Judge it was also contested whether the adoption had been made at- all, but that point was found in favour of the minor, and no contest arises as to that before us,

(2.) We are left, therefore, with two main points : (1) Did the deceased ever expressly authorise his widow to adopt the minor? (2) If not, was the deceased governed by the Benares school as being the school of Hindu law governing his community before is migrated to Khandesh? Or, on the other hand, was his law that of the Bombay school as being the law prevailing in Nandurbar in West Khandesh where he and his community had lived for a great number of years? I propose to take these two points in that order because that is the order in which they were argued before us. [His Lordship dealt with the first point, and after examining the evidence, oral and documentary, summed up the conclusion thus:]

(3.) I have come to the conclusion, after listening to the careful arguments presented to us on behalf of the minor, that the learned Judge was right in holding that the minor had not discharged the onus of proof that lay upon him to establish the alleged express oral authority.