# CommiJsioner ef Jncem,•lax Bomb'!)' Ci17 l v. B•i S;irU «i K. 1'111:• Satf.ar .1. ' - **Citation:** [1962] Supp. 3 S.C.R. 418 - **Court:** Supreme Court of India - **Decided:** 1959-04-25 - **Bench:** S. K. Das, M. HmAYATULI, AH a.nd J.C. S1uH - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commijsioner-ef-jncem-lax-bomb-ci17-l-v-b-i-s-iru-i-k-1-111-satf-ar-1-2389 - **Pages:** 19 ## Headnote Hindu Lau.~.Jai11s-Adoption-1Vidow, if can odopt without express authority of husband-l'rrliminary decree. for partition dr:clarinu u·idotti's sharr-JJ'hrther share ''possr.ssed" by widow-- Death of u·i1lou,•-/f shrzrr rpt;('.r/s to es/11.l"-llindu ,'-;ucces.riion Act, I:9;iG (30 of J95G), ss. 4, U, J/i ond 16. · G, a Digambcr Jain of the Porwal sect, died in 1934 leaving behind his widuw Smt. K, his son G who died in 1939 and three grandsons M, P and R. In 19j2 M's son S filed a suit for partition of the joinr family properties. Rajkumar, c1aiming to b~ a son of P adoptr-d by his widow, claimed a I/4th share in the joint family property. The adoption was challenged on the ground that no express authority had been gi\'en by P to his widow to adopt. The trial court held that no express authority \vas required by a son less Jain widow to adopt a son and that the adoption was duly and properly made. .\ccorciingly. a preliminary dec~e declaring the shares of Smt. K, the branch of M, the branch of R and of Rajkumar to he lf4th each was passed. Mand others preferred an appeal to the Iligh Court mainly against the findings on the question of adoption. During the pendcncy of the appeal, the Hindu Succession ,\ct, 1955, came into force. Shortly thereafter Smt. K died. The High Court upheld -:.he decision of the trial court on the question of the adoption of Rajk11mar. With respect to the share of Smt. K the High Court held that her interest declared by the prelimi· nary decree \Vas inchoate, that she never bcca1ne "possc.ssed"2 3 S.C.R. SUPREME COURT 11EPORTS 419 of any share within the meaning of s. 14 of the Act and that 11142 it remained joint family property which became divisible s. S, Munna Lal amongst the parties proportionately to their shares. The •. appellants contended that the adoption of Rajkumar was S. 8. Rajkumar invalid as no custom applicable to the Porwal sect of the J ains had been established empowering a widow to adopt without the authority of her husband and that the I/4th share of Smt. K declared by the preliminary decree had become her absolute property by virtue of s. 14 of the Act and upon her death it descended to her grandsons M and R to the exclusion of other parties. Held, that the adoption of Rajkumar was valid. A son• less Jain widow could adopt a son without the express authority of her husband. Such a custom among the Jains (not domiciled in the States of Madras and the Punjab) has been recognised by judicial decisions spread over a period longer than a century. Though none of these decisions rela~ ted to the Porwal sect of .Jabalpur to which the . parties belonged. They laid down a general custom of the Jains which were applicable to the parties. The decisions proceeded not upon any custom peculiar to any locality or to any sect of the Jains but upon general custom which had by ·1ong acceptance become part of the. law applicable to them. Where a custom is repeatedly brought to the notice of the Courts, 1he courts may held that custom introduced into the law without the necessity of proof in each individual ca5 e. Pemraj v. Mst. Chand Kanwar, (1947) L. R. 74 l. A. 224 and Mangibai Gulabchand v. Suganchand Bhikamchand, A.LR. (•1948) P. C. 177, relied on. Sheokuarbai v. Jeoraj, A.LR. ( 1921) P .C. 77, Saraf the suit the right of Saheblal to a share. in th<' property was not qm·stioned: tho dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property. Padamrhand had died before tho enactment of the Hindu Womens' Right t-0 Property Act, 1937, and his widow could not claim by virtue of that Act a share in the property of the family. But Bhuribai and Hajkumar pleaded that the parties were governed in the matter of adoption by the customary law prevalent amongst the Jains of Central India, ;\ladhya Pradesh, Vindhya Pradesh, North and W('stern India, and Hajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the joint family a11d entitled to a share in tho property and accretions thereto. The validity of the adopt.ion of Rajkumar was challenged 011 many grounds, one only of which is material in this appeal. It was submitted hy the conte5ting defendants and Bhuribai had no authority exptess or implied from her husband Padam Chand to adopt a son and that the adoption of Rajkumar as a son without such authority was invalid. 'lhe Additional District Judge rejected this plea and ordered a preliminary decree for par ti ti on and declared that the share of the plaintiff was I/24th, of ;\Iunnalal, his wife and _3 sons eolleutivoly was 5/24th, of l~amchand and hlB sons l/4th, of Khilonabai I /4th and the remaining l/4th share belonged to Iiajkumar. il S.C.R. S:UPREME COURT REPORTS 423 Against the decree, Munnalal, Ramcha~d, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhy.a Pradesh. During the pendency of this appeal Khilonabai died on July 3, 1956 and Ramchand and Munnalal applied to be implea~ · ded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree. By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on June 14, 1956, and that the sons of Munnalal, Rarnchand and Padam Chand could not take a share in Khilonabai's interest. Before the High Court two questions were canV:assed: (1) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the . preliminary decree on her death. The High Court upheld· the finding of the trial Court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf. In so holding the High Court relied upon the judgments of the Privy Council in Pemraj v. Mst. Ohand Kanwar and Mangibai Gulabchand v. Suganchand Baikamcand (1:. But the High Court declined to accept the view of the trial Court that the right ofKhilonabai declared by the preliminary .decree devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest under t.he decree being incohate was not "possessed" by her within the meaning of s. 14 (I) (1947) L.R. 74 I.A. 254. (2) A.i,R. (1948) P.C. 177. 1962 -·- 8. S. Munna Ltl v. S.S. Rajkumar Shah J. 1962 8 S. !llwmo Loi v. S. ). Rojlnanir :>hoo J. 424 SUPREME COURT REPORTS [1962) SUPP. of the Hindu Succession Act, 1956, and on her rty, and for that pur· pose the court authorised bim to ascertain the property, the debts which the family owed and also tho mdividual liability of the parties for the debts. For deciding those questions the Commissioner was empowered to record statements of th& part ics, frarue ' a S.C.R. SUPREME COURT REPORTS 42/i issues and to record evidence as might be necessary. The commissioner waR also directed to submit his proposals relating to the right of Bhuribai to b.e maintained out of the joint family property. This order, it appears, was passed with the consent of all the parties. It is true that the decree drawn up by the trial Court is not strictly in accordance with the directions given in the judgment. But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family. By so authorising the Commis>ioner, the trial Court did not abdicate itR functions to the comissioner : the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would &djudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot f1 om their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties and no objection to the order was, it appears, pressed before the High Court. We do not think that any case is made out for modifying that part of the order. The parties to this dispute are Digamher J ains of the Porwal sect and are resident of Jahalpur. Jains have generally been regarded as heterodox Hindus and in the absence of special custom they are governed by the rules applicable to Hindus. As observed by the Privy Council in Sheokuarbai v. Jeorafj.(') The Jains are of Hindu origin ; they are Hindu dissenters, and although as was pointed out by Mr. Mayne in paragraph 46 of his Hindu Law and Usages-"Generally adhering to ordinary Hindu law, that is, the law of the three (I) A.I.R. (1921) P.C. 77. 196~ S. S. llfuna Lal v, S. S. Rajkum'°r Shah J. 19~ 8. S. llumaa Lal v. S, S. J, n)kt.mOT Shah J. 4Hi SUPREME C'OURT REPORTS (1962] stJPP. superior castes, they recognise no divine authority· in the Vedas and do not practise tht: ·Shradhs, or cere111ony for the dead." "The due performance of the Shradhs, or religious ceremonies for the dead, is at the baso of the religious theory of adoption, but the Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contra1y usage x x x." But amongbt the Jains a custom enabling a widow to adopt. a son to her husband without express authority has been recognised by judicial decisions spread over a period longer than a century. In Pemraj v. ,}f'U8Gmmad Chand Kanwar(:), the Judicial Committee of the Privy Council after •a review of the case law obse~ved : "x x x x, in many other parts of India" (parts other than the Provinces of Madrae and the Punjab) "it has no"" been established by decisions based on evidence from widely separated districts and from different sect.s that the Jains observe the custom by which a widow ·may adopt to her husband without his authority. This custom is based on religious knants common to all sects of Jaine, and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none oft.he cases has a distinction been drawn between one sect and another. It is now in their Lordships' opinion no longer premature to hold that the custom prevails generally among all Jaine except in those areas in which there a1 e opccial reasons, not operative in the rest of India, which explains why the custom has not established itself, Mayne, in his treaties on Hindu Law and Usage, at pai:o 209, has lent the weight of his authority to the proposition that among the Jains, except in tho MadraH Presidency a sonless widow can adopt a son to her (l) (1947) L.K. 74 LA. 2$4. 3 s.c.:R. SUPREME COURT REPORTS 427 husband without his authority or the consent of his sapindas". This view was reiterated by the Privy Council in a case reported in Mangibai Gulabchand v. 8uganchand Bhikamchand ('). The Attorney General for the appellants, however, contends that there is no evidence of a custom authorising the widow of a Porwal Digamber Jain residing in Jabalpur to adopt a son to her husband without express authority. Counsel submitted that the observations in the two cases relating to the custom of adoption must be restricted to the sects to which the parties to these cases belonged, and in so far as they purport to extend the custom to all Jain residents in India outside Madras and the Punjab they are mere d!cta and not binding upon this Court. In Pemraj's case the parties belonged to the Khandelwal sect domiciled and resident in Ajmer and in Mangibai's case the parties were Marwari Jains of the Vis-Oswal sect who having migrated from J odhpur had settled down in the Thana District of the Bombay Province, but the opiniun of the Judicial Committee expressly proceeded upon a well-recognised custom applicable to all Jains in the territory of India (excepting Madras and the Punjab) and not upon proof of a restricted custom governing the sects of Jains to which the parties belonged. Undoubtedly, as observed by this Court in 8araswathi Ammal v. Jagadamhal (') in dealing with the quantum of proof rvquired to prove a family or local custom, "it is incumbent on a party Retting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any customs applicable to the, parties concerned that can be the rule of decision in a particular case. x :x: x (1). A.J.R. (1948) P.C. 177. (2) {1U53) S.C.R. 939. 1962 S.S. Munna.Lal v. 8. S. Rajkwnar Shah J. J96Z S.S. Munna lREME COGRT REPORTS [1962] SUPP. Theory and custom arc antitheses, custom cannot be a matter mere of theory but must always be a matter of fact and one custom cannot uo cleductcd from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the cummunity living in another district is necessarily following the same custom." But the application of the custom to tho parties to this .appeal does not appear to proceed upon analogies or dcductioDS. It governs the parties, because the custom has become a part of the law applicable to Jains in India (except in Madras and the Punjab) by a long and uninterrupted course of acceptance. . A review of the cases decided by difforent Courts clearly shows that the custom is generally applicable to Jains all over India, except the Jain domiciled in Madras and the Punjab. The earliest case of which a report is available is Maharaja is held upon the evidence consisting partly of judicial decisions and partly of oral evidence that tho custom thl]-t a sonless Jain widow wn,s competent to adopt a son to her husband without his permission or tho consent of his kinsmen, was sufficiently established and that in this respect there was no material difference in the custom of the A!l'garwal, Choreewal (Porwal), Khandwal and Oswal sects of the Jains ; and that there was nothing to differentiate the Jains n,t Arrah from the Jains elsewhere. The judgment of the case proceeded upon an elaborate examination of numerous instances in which the custom was held established. In Manohar Lal v. Banarsi Das(') and in A8 ha1ji K1tnwar v. Ru.pchanrl(') a similar castom was held esta.hlished. In the latkr ca,se a large number of witnesses were examined at different places and on a review of th0 decisions and the evidence the Court held the m1stom proved. ' The judgment of the Allahabad (l) (1886)1.L.R.UAl\.319. (2) (188'lJl.1-.R.17Cal.5<8. (3) (18991J.L.R.27 Cal. 379. (4) (1907) 1.1 .. R. 29 All. 495. (5) (1908) J.L.R. 30 All. 197. l:Jb2 S. S. iJ'Iurina L'll v. S.S. Rajlcnml'r 19fi2 S.S. Munno LaJ v. S. S. Rajkumor Shah J. 430 SUPREME OOURT REPORTS [19e2) SUPP. High Court in .-1sharfi's case was affirmed by the Privy Council in R11p Chand v.· .Jamim Prasod. ( r) It may be stated that the right of a .Jain widow to adopt without authority of her husband was not questioned before the Privy Council. Iu Jiwraj v. Jft. Sl/R/Jhw:ar/J(Ji (') the Court of the Judicial Commissioner, ~agpur held that the permission of the husb1ind was not neceHSary in the case of a Jain widow. to adopt a son. This c'l.Be was also carried to the Privy Council and the judgment was affirmed in Slieokuarbut v . .Jr.oraj ("). In Banarsi Das v. Samat Prasad(') a similar custom was held estitblishcd. The decisions in all theRe c&Bes proceeded not upon any custom peculiar to the locality, or to the seet of .fains to which they belonged, but upon tho view that being Jains, they wore govern1•d by the custom which had by long accep· ta.nee hecome part of the law applicable to them. It is well-settled that where a custom is repeatedly brought to the notice of the Courts of a countrv, the courts mav hold that custom intro· duced into the law without the neceBSity of proof in each individ1ml case. (Ramn. Rno v. Raja of Pitlapnt) (•). The plea ahout the invalidity of the 1ldoption of Rajkumar by Rlmribai must therefore fail. Khilonabai died after the Hindu Succession Act was brought int·o operation on June 14, l!l51l. This Act by s. 2( I )(b) applies to Hindus and also to persons who arc ,Jains by religion. The preliminary deer"e was passed on .July ~9, 195.5, and t.J.ercby Khilona.hai wa.s declared entitled to a fourth Hhare in the property of the family. Section 14 of ,,f the Hindu SuccoHsion Act, l!l51l provide~: •'14(1) Any property possessed hy a fomalo Hindu, whether acquired before or after the commencement of this Act, ahall be 11) (19IOJ [.J..R. 32All.1f7. 121 A.I.R. (1920\ Nag.162. <3) A.!.R. (1921) P.C. 7; (4) (1936) l.1-R 58 All.1019. (5) (1918) L.R. 4 5 I.A. 11~. 3 S.C.R. SUPREMJJ: COURT REPORTS 431 held by her as full owner thereof and not as a limited owner. EXPLANATION. In this sub-section "property" includes both movable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after • her marriage, or by her own skill or exerti-On, or by purchase or by prescription, or in any other manner "hatsoever, and also by such property held by her as stridhana immediately beforn the commencement of this Act. · (2) Nothing contained in sub-section ( l) shall apply to any property u.oguired by way of gift or under '.1 will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." Section l 5 provides: "15 (I) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- - (a) firstly, upon the sons and daughters (including the children of any predeceased son or d•m· ghter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother ~ml father;· 1961 S.S MunnaLal v. S. s. Bajlcumar Shah J. 1962 ·'· S Af11m1al4l v. S. ). l111ji..uninr 432 SUPREME COURT REPORTS [1962] SUPP. (d) fourthly, upon the heirs of the father; (e) lastly, upon the heirs of the mother; (2) Xotwithstanding anything contained in sub.section (I),--, (a) any property inherited by a female Hindu from her father or mother shall devolv<', in the absence of any son or daughter of the deceased (including the children of any predeceased son or tation .. Tho expression includes property acq11ired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenanee or arrears of maintenance, or by gift from :my perso11, whether a relative or not, before at or aft.er her marriage, or hy her own skill or exert.ion, or hy purclmse or by prescription, or in any other man11er what.·so-evcr. Ry s, 14(1) manifostlv it. is intended to convert the interest which a ·Hindu fomal" h:tH in property however restricted the mtt.ure of that interest under the Sastrio Hinrlu law may be into absolute estate. Prata p m11ll'.• case undoubtedly laid down that till actu:tl division of the share decln.red in her favour by a prelimin11,ry decreP for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgm1'nt apply aftpr the enn~t.ment of the Hindu Succussion Act. The Aet is a codifying nnactmcnt, and has made far reachiu\( chrty possessed hy her at th,, time of hor den•:h. It is true that unde!" the ::i