Mt. Ballo v. Ram Kishan

1. This is a plaintiff's appeal arising out of a suit for recovery of possession of a house and some landed property with mesne profits. The plaintiff who is one of the daughters of Kesrimal deceased, alleged that on the death of Kesrimal his ??? was inherited by his widow Muasammat Sohani who died on the 6th of May 1918, and that the plaintiff being the poorer of the two daughters ??? entitled to inherit the estate in ??? to Musammat Sunder, the ??? of Ram Krishna the principal defendant. On behalf of the defendant it was pleaded that he had been ??? by Kesrimal in his lifetime some 24 years ago and that there was a custom prevailing among the Agarwala Vaishas to adopt a daughter's son and further that the present claim was barred by time.

2. Both the Courts below have found that the adoption did in fact take place and have also accepted the defendant's evidence as establishing the existence of the alleged custom.

3. The plaintiff comes here in second appeal and urges that the evidence ??? to prove the custom permitting such adoption is legally insufficient.

4. In support of the custom the defendant had relied on contracts of wajib-ul-arzes relating to some 13 villages in which a general custom to adopt a daughter's son or a sister's son was recited, but there was no specific reference to Agarwala Vaishas in them. That evidence has not been relied on by either of the Courts below. In addition to this there were three judgments. In the first one the custom was found not to have been established. In the second one the trial Court found that the custom had been proved but on appeal the High Court decided the case on another ground. In the third and the last case the learned additional Subordinate Judge of Saharanpur in an elaborate judgment found that the custom had been fully established. He cited 45 instances which had been proved in that case. In the present case the defendant examined some 33 witnesses. Thirty of these spoke of the general custom permitting the adoption of a daughter's son prevailing among the Agarwala Vaishas and they were, able to cite at least 34 instances out of which 20 instances have been accepted by the Courts below as being instances where adoption either of a daughter's son or a sister's son had taken place. Out of these 20 instances 11 are instances of the adoption of a daughter's son.

5. Both the Courts below have accepted this evidence and are of opinion that it satisfactorily establishes the custom set up by the defendant. We in second appeal are unable to hold that this evidence was legally insufficient to prove the custom or that the Courts below were not justified in accepting it.

6. The result is that the appeal fails and is dismissed with costs including fees on the higher scale.

7. Appeal dismissed.