MANGIBAI GULABCHAND Vs. SUGANCHAND BHIKAMCHAND

JUDGEMENT

(1.) This is an appeal from a judgment of the High Court at Bombay reversing a judgment of the First Class Sub - Judge Thana. The suit is for a declaration that the plaintiff (now respondent 1) is entitled as an adopted son to a half - share and partition of certain joint family property in the Thana district, Bombay. The only question now in issue is whether the adoption of respondent 1 by respondent 2, the widow of one Bhikamchand, a member of the joint family, is valid. The Sub - Judge held it invalid because it was made without the consent either of the adopter's deceased husband or of the nearest male member of his family, his brother Gulabchand, whose heirs are the present appellants. The High Court held that the adoption was valid notwithstanding the absence of these consents.

(2.) The joint family are Marwari Jains of the Visa - Oswal community. The family migrated some generations ago from Jodhpur state to the Thana district. The two brothers, Gulabchand and Bhikamchand, lived together till Bhikamchand died in April 1926. In 1927 his widow Jadavbai wanted to adopt a son (not respondent 1) but Gulabchand objected and she then abandoned the idea. On 30 April 1936, however, she sent a formal notice announcing her intention to make an adoption to Gulabchand, who replied that she had no right to make an adoption and that he was strongly opposed to it. Nevertheless she adopted respondent 1 on 8 May 1936; a deed of adoption was executed on the same day and registered on 2 June, 1936. The appellants refused to admit the validity of the adoption and to give respondent 1 a share of the family property. Accordingly on 3rd September 1936, respondent 1 through his natural father as guardian and next friend, instituted the suit.

(3.) Both the Sub - Judge and the High Court have laid on respondent 1 the onus of proving that a childless Jain widow in Bombay is by custom entitled to adopt a son to her deceased husband, without either the consent of her deceased husband or of his nearest male relations. The Sub - Judge held that this onus had not been discharged, and he regarded as important an answer given in cross - examination by respondent 1's natural father that a widow in a joint family in the community to which the parties belong must have the permission of her husband or of the eldest male member of the family before she could make a valid adoption. The High Court on the other hand attached little importance to this piece of evidence, and held that the onus had been discharged by evidence of the customary law in the state of Jodhpur from which the parties had originally come. This evidence consisted of a certified copy produced by respondent 1 of a letter from the Chief Minister of the Jodhpur Government to the Judicial Minister, communicating the decision of the Maharaja on three appeals to him from the Chief Court that an adoption by a Jain widow without consent was valid.