N.J Wadia, J.:—
This appeal arises out of a suit brought by respondent No. 1 against the appellants, who were defendants Nos. 1 to 4 in the trial Court, to recover by partition a half share in certain moveable and immoveable properties on the ground that he was the adopted son of one Bhomshetti. Bhomshetti, who died about the year 1905, was the brother of defendant No. 1 Yamashetti. Defendants Nos. 2, 3 and 4 are the sons of defendant No. 1. Bhomshetti died in union with his brother Yamashetti. The plaintiff alleged that he had been adopted by Janakibai, the widow of Bhomshetti, who was defendant No. 5 in the case, on December 13, 1932. The parties are Jains. The plaintiff's case was that at the time of Bhomshetti's death his wife, defendant No. 5, was pregnant. Bhomshetti told his wife at the time of his death that if she gave birth to a daughter she should take that daughter's son in adoption. A daughter was born to Bhomshetti after his death and in accordance with the direction of Bhomshetti the plaintiff was taken in adoption by Janakibai in 1932, a deed of adoption being executed the same day. It was the plaintiff's contention that apart from the direction given by Bhomshetti to his wife the plaintiff's adoption would be valid both according to Hindu law and according to the custom prevailing among the Jains in the Southern Maratha country. It was also contended that according to the custom of the Jain community the adoption of a daughter's son was valid. The defendants disputed both the factum and the validity of the plaintiff's adoption in the trial Court. The learned Judge held that the factum of the adoption was satisfactorily proved; that the alleged authority given by Bhomshetti to his wife to adopt a daughter's son, in case a daughter was born to him, had not been proved; that the allegation that there was a custom among Jains permitting a widow in a joint family to adopt without the consent of her husband's coparceners had also not been proved; but he held that as Jains are governed by the ordinary Hindu law, except where any special custom to the contrary is proved, and as according to Hindu law a widow in a joint family can adopt without the consent of her husband's coparceners, the plaintiff's adoption was valid. He therefore made a decree in favour of the plaintiff. Against that decree defendants Nos. 1 to 4 have come in appeal.
The factum of the plaintiff's adoption has not been challenged before us in the appeal; nor has the finding of the learned Judge in favour of the plaintiff as regards the prevalence among Jains of the custom of adopting a daughter's son been challenged. The validity of the plaintiff's adoption had also been disputed in the trial Court on another ground, namely, that Bhomshetti's widow, defendant No. 5, had taken a vow of renunciation—tyagavrata—and was in consequence incapacitated from adopting. On that point also the finding of the learned Judge was against the appellants and that finding has also not been challenged before us.
The only point argued before us in appeal is that raised by the 4th issue, whether the consent of defendant No. 1 was necessary for plaintiff's adoption. On this point the argument of the learned counsel for the appellants is that the Hindu law of adoption is not applicable to Jains in its entirety; that the principle laid down by the Privy Council in Amarendra Mansingh v. Sanatansingh and Bhimabai v. Gurunathgouda Khandappagouda, that a widow in a joint Hindu family has the right to adopt without the consent of her husband's coparceners, is based on the view that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the spiritual Welfare of the souls of his ancestors, and that as this consideration cannot be present in the case of adoptions among Jains, the conclusion which their Lordships of the Privy Council deduced that a widow in a joint Hindu family has the right to adopt even without the consent of her husband's coparceners, cannot apply to Jains. It is argued that Hindu law applies to Jains as a matter of custom and that therefore the principle laid down by the Privy Council with regard to a widow's right to adopt, based entirely on the religious motive underlying an adoption, cannot be applied to Jains whose religious tenets afford no foundation for the belief in the spiritual efficacy of an adoption.
The question of the extent to which Hindu law applies to Jains has been considered and settled in a very large number of cases dealt with by the High Courts and by the Privy Council beginning with the case of Bhagwandas Tejmal v. Rajmal. It has been pointed out in several of these decisions that Jains occupy an intermediate place between the followers of Budha and Brahma. They reject the scriptural character of the Vedas, and repudiate the Brahminical doctrine relating to obsequial ceremonies, the performance of Shradh, and the offering of oblations for the salvation of the soul of the deceased. Amongst them there is no belief that a son, either by birth or adoption, confers spiritual benefit on the father. They also differ from Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. It has been pointed out, however, that in spite of these differences there are among them castes which still observe Hindu customs and perform the monthly, six monthly and anniversary ceremonies of the dead. Dealing with the question of the law applicable to Jains Westropp, C.J said (p. 256):—“Hitherto, so far as we can discover, none but ordinary Hindu law has been ever administered in this Island or in this Presidency to persons of the Jain sect.” It was held that adoption among Jains in this Presidency was regulated by the ordinary Hindu law as was their succession to property generally, notwithstanding their divergence from Hindus in matters of religion; and when amongst Hindus (and Jains were treated as Hindu dissenters) some custom different from the normal Hindu law and usage of the country was alleged to exist, the burden of proving its antiquity and invariability was placed on the party averring its existence. The same view has been consistently held by the different High Courts and by the Privy Council in a large number of subsequent cases. In Sheo Singh Rai v. Mussumut Dakho, it was held that although ordinary Hindu law, in the absence of proof of special customs, has usually been applied to persons of the Jain sect in Bombay, yet the Jains possess the privilege of being governed by their own peculiar laws and customs when the same are by sufficient evidence capable of being ascertained and defined and are not open to objection on grounds of public policy or otherwise. The principle was again affirmed in Chotay Lall v. Chunno Lall. In the judgment in that case their Lordships said, referring to the effect of the decision in Sheo Singh Rai v. Mussumut Dakho (p. 28): “… the effect of that case is that the customs of the Jains, where they are relied upon, must be proved by evidence, as other special customs and usages varying the general law should be proved, and that in the absence of proof the ordinary law must prevail.” It was clearly the opinion of their Lordships that Hindu law was the ordinary law applicable to Jains.
Much has been made in the arguments before us of a remark made by Mr. Justice Fulton in Amava v. Mahadgauda that “by custom the Jains are governed in matters of adoption by the ordinary rules of Hindu law.” It was contended that the principles of Hindu law were applicable to Jains not as a matter of law, but as a matter of custom, and that therefore if it could be shown that a particular principle of Hindu law was either repugnant to or had no foundation in the tenets of the Jain religion, that principle could not be applied to Jains. I am not prepared to accept the distinction which is sought to be made as regards the applicability of Hindu law to Jains on the strength of this remark. Mr. Justice Fulton bases his remark on the decision in Bhagwandas Tejmal v. Rajmal and, as I have pointed out, the decision in that case clearly supports the view that the ordinary Hindu law is applicable to Jains as a matter of law and not as a matter of custom. In the later case of Sheokuarbai v. Jeoraj their Lordships of the Privy Council again said that Jains are of Hindu origin and Hindu dissenters, and although they recognize no divine authority in the Vedas and do not practise the shradhas or ceremonies for the dead, they have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contrary usage.
The long course of decisions to which. I have referred above makes it clear that Jains are governed in matters relating to adoption by the Hindu law except where any custom, in variation of it is satisfactorily proved. No evidence has been adduced by the appellants to prove that there is any custom among the Jains prohibiting widows from adopting without the consent of the husband or of his coparceners, and in the absence of such evidence I am not prepared to accept the contention that the ordinary law relating to the power of a Hindu widow in a joint family to adopt without the consent of her husband's coparceners does not apply to Jains, merely because Jains do not believe in the Brahminical doctrines relating to obsequial ceremonies, the performance of shradha and the offering of oblations for the salvation of the soul of the deceased.
The contention which has been raised before us by the learned counsel for the appellants was raised in Hirachand Gangji v. Sojpal, but was overruled by Mr. Justice Rangnekar on the ground that (p. 518) “the law in this country has been so well settled that under it the Courts would start with the presumption that the Hindu law of adoption would apply to Jains, and the burden of showing any custom contrary to the ordinary principles of Hindu law of adoption would be on the party who sets it up.” A similar contention was also raised before a division bench of this Court in a recent unreported case, Manakchand Amolakchand v. Kasturchand Trilokchand, and was also overruled.
It has been argued that the decisions of the Privy Council in Aniarendra's case and Bhimabai's case were both based on the view that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the spiritual welfare of the souls of his deceased ancestors by the continuance of the line and the solemnization of the necessary rites, and that therefore the validity of adoptions must be determined by spiritual rather than temporal considerations, and as the Jains do not believe that a son either by birth or adoption confers spiritual benefit on the father, and do not observe the obsequial ceremonies prescribed by Hinduism in connection with the dead, there is no foundation in the tenets of the Jain religion for the application of the principle laid down by the Privy Council in the two cases referred to above as regards the power of a Hindu widow in a joint family to adopt without the consent of her husband's coparceners. But the religious motive is not the only motive for adoptions. The secular motive is equally important. In the formula for adoption given by Baudhayana both motives are equally mentioned: “I take thee for the fulfilment of religious duties. I take thee to continue the line of my ancestors.” The continuance of the line is the secular motive underlying adoptions and that motive operates among Jains quite as much as among: Hindus. In the latest Edition of Mayne on Hindu Law and Usage (10th edn.), p. 239, para. 171, the learned author in discussing the contention now urged before us says:—
“The decision in Amarendra's case is rested upon the duty of providing for the continuance of the line for spiritual purposes and upon the religious efficacy of sonship. Probably an attempt will be made to distinguish it from cases of adoption in communities such as Jains amongst whom it is held to be a purely secular act. It is not clear that it was intended to make a distinction between cases where the religious motive may be presumed and cases where an adoption is purely a secular institution … But adoption itself is in all cases for the continuance of the line and for the perpetuation of the family name, whether the motives are secular or religious, and the reasons for or against setting limits to a widow's power in the one case as in the other are substantially the same.”
It is not possible therefore to hold that the principle laid down by the Privy Council with regard to the power of a Hindu widow in a joint family to adopt without the consent of her husband's coparceners does not apply to Jains because among them the spiritual reason underlying adoptions amongst Hindus is absent, and the conclusion derives support from the fact that, so far from the right of a widow, in a joint family to adopt without the consent of her husband's coparceners being repugnant to or having no foundation in the tenets of the Jain religion, there are decisions which show that in some parts of India the custom of Jain widows in a joint family adopting without the consent of their husband's coparceners has been held to have been proved. In Sheo Singh Rai v. Mussumut Dakho it was held as early as 1878, on an examination of evidence given by a large number of Jain witnesses with regard to the custom prevailing among Jains, that it had been established that a sonless widow of a Saraogee-Agarwala (Jain) takes by the custom of the sect a very much larger dominion over the estate of her husband than is conceded by Hindu law to the widows of orthodox Hindus, and that she enjoys the right of adoption without the permission of her husband or the consent of his heirs. In Gettappa v. Eramma, in which it was held that a Jain widow was not competent to adopt a son to her husband without the authority of her husband or the consent of his sapindas, in the absence of proof of a custom to the contrary, the fact that among certain sects of Jains in the other Presidencies such a custom had been upheld by the Courts was referred to.
The contention of the appellants therefore that the ordinary Hindu law with regard to the power of a widow in a joint Hindu family to adopt cannot apply to Jains is clearly unsustainable. Janakibai was legally entitled to adopt the plaintiff and did adopt him. The view taken by the learned trial Judge is therefore correct and the appeal must be dismissed with costs.
Sen, J.:—I agree.
Appeal dismissed.
J.G.R