1. This appeal by the plaintiffs and another one, First Appeal No. 62-B of 1928, by the defendants are against the decree passed by the Additional District Judge, Akola, in Civil Suit No. 1 of 1927. The parties to the litigation are residents of Balapur of the Akola District and belong to the sect of Jains known as Swetambari Dasashrimali and they are related as under:

2. The plaintiffs' case was shortly this. That Udechand carried on a shop dealing with gold and silver and that after his death the same business was continued by his two sons, Misrichand and Holchahd jointly. After the death of Misrichand there was a partition of the joint family property between the plaintiffs and Holchand and that Holchand died as a separated member in the year 1901, leaving behind considerable property, both moveable and immovable, to which his widow, Kaveribai, succeeded. It was alleged that, on 26th March, 1918, Kaveribai was made to execute a deed of gift in favour of defendant 1, at the instigation of defendant 2, bequeathing considerable moveable and immovable property to her and that, as a Hindu widow governed by the Mitakshara Law, she was not entitled to gift away the said property, in case the deed of gift was field voluntary and genuine. Mt. Supdibai admittedly predeceased her mother, Kaveribai, having died in the year 1915. Mt. Kaveribai died in the year 1923 and disputes arose between the plaintiffs and defendant 2 with regard to the property which was left by Kaveribai as the property of her deceased husband. The house with all its contents was attached by the Sub-Divisional Magistrate, Balapur, in proceedings under Section 145 of the Cr PC. The plaintiffs as reversionary heirs of Holchand, therefore, filed the present suit to recover possession of the properties which were covered by the aforesaid deed of gift (Rs. D-9) and described in para. 1 of the plaint. After the institution of the suit a claim was also laid to all the moveables which were discovered in the said house, when it was opened by the order of the Court, and as described in Sch. A attached to the plaint. The claim was resisted by the defendants on various grounds. They denied that the property left by Holchand at his death was ancestral and alleged that it was his self-acquired property without the aid of any nucleus of ancestral property which they said consisted only of a house which ab the partition between the brothers was allotted to the father of the plaintiffs. The defendants further contended that, according to the custom prevailing in the caste to which the parties belonged, Kaveribai had full power of disposition over the property which she got from her husband, because it was non-ancestral, that on account of natural love and affection she had made a free gift of the said property to her granddaughter, defendant 1, and that consequently the plaintiffs could not lay any claim to it. With regard to the property discovered in the house, it was stated that the whole of it excepting ornament No. 253 of Sch. A belonged to the defendants and was not the property of Kaveribai. In respect to this ornament No. 253 it was alleged that Kaveribai had made a gift thereof orally to defendant 1 in the year 1918. The defendants also alleged that the parties, having originally migrated from Gujrat, were governed by the Mayukha and not by the Mitakshara School of Hindu Law. In their reply the plaintiff submitted that the family had migrated from Gujrat about 500 years ago and not about 100 years ago as stated by the defendants, but alleged that they were governed by the Mitakshara School of Law. They, of course, denied the custom set up by the defendants as to the widow's right in respect of the non-ancestral property of her husband.

3. A fair idea of the further pleadings of the parties will be gathered from a perusal of the following issues which were settled for trial:

“1. Whether property mentioned in the plaint, the list and Sch. A annexed to the same formed the ancestral property of Holchand, deceased, at his death?

2. What property mentioned therein formed the self-acquired property of Holchand deceased, at his death?

3. Whether the property mentioned in the list annexed to the plaint and Sch. A have vested in Holchand deceased husband of Mt. Kaveribai? Did the property or any portion thereof form the accretion to the estate of the deceased husband of Mt. Kaveribai?

4. Or did it form the personal property of Mt. Kaveribai, Supdabai, defendant 1 and Tukdasa respectively as alleged on behalf of defendants 1 and 2?

5. Whether there was a custom prevailing among Jains by which a widow took an absolute interest in the self-acquired property left by her deceased husband?

B. Whether the custom was prevalent or applicable to the sub-sect of Jains to which the plaintiffs, defendants 1 and 2, and deceased Holchand belonged?

6. When did the ancestors of the plaintiffs and the deceased Holchand migrate to Berar?

7. By what School of Hindu Law were they governed when they came to settle in Berar?

B. If they were governed by the Mayukha School of Law was the same renounced and was the School of Hindu Law, Mitkshara as prevalent in Berar was the School by which the plaintiffs, the deceased Holchand and his widow and defendants 1 and 2 were governed?

8. Whether Mt. Kaveribai took an absolute interest in the moveable property left by Holchand at his death under the Mayukha School of Law?

9. Had she no right to transfer the property mentioned in the deed of gift dated 26th March, 1918?

10. What right did defendant 1 get to the property mentioned therein by virtue of the said gift?

11. Whether the deed of gift dated 26th March, 1918 was executed under the circumstances mentioned by the plaintiffs, and did Mt. Kaveribai execute the same without knowing its contents as alleged?

12. Did Mt. Kaveribai gift the ornament No. 253 to defendant 1 in the year 1918? What right did defendant 1 get to the same by such a gilt?

13. Whether Kaveribai realized the debts other than those payable under the decrees, by one Nimbya on behalf of defendant 1 and were they non-existent?

14. When did defendant 1 come into the possession of the property gifted to her by Mt. Kaveribai?

15. Whether Supdabai, defendant 1, and defendant 2 were living, with Kaveribai since before the deed of gift?

16. To what property were the plaintiffs entitled as the reversioners of Holchand, deceased?”

4. The findings of the lower Court on the several issues were as under:

Issue 1. That the property left by Holchand was not ancestral.

Issue 2. That the entire property was the self-acquired property of Holchand.

Issue 3. That the same had vested in Holchand.

Issue 4. That the said property was not the property of Kaveribai or either of the defendants.

Issue 5. That the custom alleged was established in the case of Jains in general and that it also applied to the particular sub-sect of Jains to which the parties belonged.

Issues 6 to 8. No finding was given on these issues.

Issue 9. That Kaveribai had power to dispose of the property mentioned in the deed of gift (Ex. D-9).

Issue 10. That defendant 1 had thus become the owner of the property gifted to her.

Issues 11, 12 and 15 were decided in the negative.

Issues 13 and 14 were decided in the affirmative.

5. As a result of the aforesaid findings a decree was passed in favour of the plaintiffs with regard to the property mentioned in Sch. A and the claim was dismissed with regard to the property which was covered by the deed of gift. Both the parties were dissatisfied with the decree and have preferred the present appeals. Both the appeals were argued together at considerable length, the hearing lasting for three days.

6. We shall take up the plaintiffs' appeal first. Four definite points, which were urged by their counsel, are:

(1) that the lower Court erred in adding new and recasting some old issues thereby throwing the burden of proof wrongly upon the plaintiffs;

(2) that the learned Judge wrongly rejected three documents which the plaintiffs had tendered in evidence in the course of the trial;

(3) that in view of the well recognized rules of evidence regarding proof of custom the materials on record were insufficient to sustain the finding of the lower Court that the custom alleged in the present case was proved;

(4) that the character of the property which came into the hands of Kaveribai was not established as non-ancestral or self-acquired so as to validate the deed of gift relied on by the defendants.

Point 1. On 2nd November, 1925, six issues were framed by Mr. Moghaonker. On 19th February, 1926, he rejected an application of the defendants for recasting the issues. On 15th September, 1926, when Mr. Amraotker took over charge of the case a fresh application was presented by the defendants for resettling the issues on the ground that the issues as framed were wrong and did not cover the entire-pleadings. After hearing the pleaders of the parties, the learned Judge allowed the application by an order dated 20th December, 1926, and recasted the issues as they stand now. It cannot be denied that under O. 14, R. 5(1) of the CPC, the Court has got very vide powers to amend the issues or frame additional issues as may be necessary for determining the matters in controversy between the parties at any time before the passing of a decree. It is to be noted that, in the present case, the issues were remodelled before the bulk of the evidence was recorded. It is frankly admitted by the learned advocate for the plaintiffs that no prejudice, in the shape of shutting out any evidence, which the plaintiffs desired to present in the case, has resulted to them by the amendment of issues.

7. The order passed by the lower Court on 20th December, 1926 in this matter seems to us to be perfectly just and sound as the old issues were indeed not sufficiently explicit and did not fully cover the pleadings of the parties as the remodelled issues do. Moreover where, as here, the relevant facts are before the Court and all that remains for decision is what inference is to be drawn from them, the question of burden of proof is not pertinent: Sethuratan Aiyar v. Venkatachella Goundan(1). Also, when the entire evidence is once before the Court, the debate as to onus of proof is purely academical: Chidambara v. Pandara(2), and this is more so at the appellate stage: Shib Chandra v. Gour Chandra(3). We therefore, overrule the contention that the lower Court erred in law in resettling the issues.

Point 2. The three documents which were rejected by the lower Court are (1) a bond for Rs. 25 dated 12th June, 1863 standing in the name of creditors “Holchand Misrichand”; this was tendered on 3rd November, 1925 by the plaintiffs along with other documents and entered in the list of documents relied upon by them; and (2) account books, khata bahi and roj bahi, of the year 1869-1870 of the firm Popatlal Parashram of Balapur tendered by the plaintiffs' witness 2, Girdharilal, a munim of the said shop, purporting to contain a khata of “Holchand Misrichand.”

8. It is urged that the lower Court ought to have admitted these documents in evidence under Section 90 of the Evidence Act, for the simple reason that they were more than 30 years old and were produced from proper, custody. The first document was rejected by the lower Court “as not produced from proper custody” and although no express reasons were assigned for the rejection of the two account books, it seems to us that they were rightly rejected because there is no presumption under Section 90 of the Evidence Act, with regard to unsigned accounts not purporting to be in the handwriting of any particular person: Naina Pillai v. Ramanathan(3a). Girdharilal (P.W 2) distinctly stated that he could not say in whose handwriting the relevant entries were. As to the bond the reason for rejection is perfectly sound. Mere production of an ancient document by a party affords no proof of proper custody and it was for the plaintiffs to explain how the document came to be in their custody, which was admittedly not done in the present case. The lower Court was, therefore, quite correct in refusing to exercise its discretion under Section 90 of the Evidence Act, of drawing the inference that the bond was duly executed and attested by persons by whom it purported to be executed and attested.

Point 3. It was on this point that a battle royal was really fought at the bar between counsel on both sides. It was, however, agreed that unless the alleged custom was proved, the parties, though Jains, would be governed by the Hindu Law. It is further clear that, since the family of the plaintiffs originally migrated from Gujrat, it would be governed not by the Mitakshara but by the Majukha School of Hindu Law: Mulla's Principles of Hindu Law, Edition 6, S. 12(2) and the cases cited thereunder.”

9. It is equally clear that on migration to Berar the plaintiffs' family presumably carried with it its personal law, that is, the laws and customs as to succession and family relations prevailing in the province of Gujrat, until a contrary is alleged and proved, the principle being that the law existing at the time of migration continues to govern the migrated members until it is renounced: Mulla's Principles of Hindu Law, S. 14(2)(3).

10. It is not denied on behalf of the defendants that the burden of proving the alleged custom by clear and unambiguous evidence rested heavily upon them. The quantum of proof which would be sufficient to estabish a custom has never been stated with any precision anywhere; but the decided cases do certainly lay down the kind of evidence required in such cases. For instance, in Gopalayyan v. Raghuvatiayyan(4) (at p. 254) it was observed:

“that (1) the evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with law; and (2) evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of Courts, or even of panchayats upholding such acts, the statements of experienced and competent persons of their belief that such acts were legal and valid will all be admissible, but it is obvious that, although admissible, evidence of this latter kind will be of little weight if unsupported by actual examples of the usage asserted.”

11. In Harnath Pershad v. Mandil Dass(5) followed by this Court in Mt. Sano v. Puran Singh(6), it was laid down that judicial decisions recognising the existence of a disputed custom amongst the Jains of one place are very relevant as evidence of the existence of the same custom amongst the Jains of another place, unless it is shown that the customs are different; and oral evidence of the same kind is equally admissible, and that there was nothing to limit the scope of the enquiry to the particular locality in which the persons setting up the custom reside. It is pertinent to note that in this case the learned Judges did not follow the view propounded in Mandit Koer v. Phool Chand(7) to the effect that instances from other provinces were not to be taken into consideration in proving the custom of the particular locality. In Shimbhu Nath v. Gayan Chand(8) it was held that where a custom alleged to be followed by any particular class of people is in dispute, judicial decisions in which such custom has been recognized as the custom of the class in question are good evidence of the existence of such custom.

12. Again, in Parshottam Ganpat v. Venichand Ganpat(9) (at pp. 760-61 of 45 Bom.) it was observed that

“if, than, the evidence shows that for a certain number of years, and some cases appear to lay down as a useful guide a period of twenty years, there have been a number of instances in which the alleged custom has been recognized, the presumption arises that the parties concerned have acted in that manner, not from the desire to set up a new custom, but because they are acting in accordance with the tradition of immemorial Usage. King v. Joliffee(10) and Brocklebank v. Thompson(11) (at p. 350) and as long as texts are not cited and experts called to negative the alleged custom, it is unnecessary to cite texts or call experts to support it: see also Raja Mahtab Chand Bahadur v. The Government of Bengal(12) (at p. 499).

13. In Venkata Mahipathi Gangadhar Rama Rao v. Venkata Kumara Mahipathi Surya Rao(13) it was also observed that

“when a custom or usage, whether in regard to a tenure or a contract or a family right is repeatedly brought, to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case.”

14. This principle was approved and followed by this Court in the decision of Mt. Saw v. Puran Singh. It was also laid down in Parshottam Ganpat v. Venichand Ganpat, that the evidence of pandits and elders of the community in which the custom prevailed would be good evidence in proof or disproof of the alleged custom.

15. In Ratilal v. Motilal Sankalchand(14) instances over 25 years old were held sufficient to establish immemorial custom. In Ali Mohammed v. Seikh Katur, A.I.R 1923 Cal. 200 evidence of enjoyment as of right for 30 or 40 years was held sufficient to prove antiquity. Their Lordships of the Privy Council have also held that where the existence of a custom for some years was proved by direct evidence, it could be shown to be immemorial only by hearsay evidence: Rajendra Narain Dhanji Dea v. Gangananda Singh(15).

16. That custom may be proved by hearsay evidence is also clear from the provisions of Section 32(4) of the Evidence Act. Moreover, opinions, as to the custom or right, of persons who would be likely to know of its existence if it existed, are also declared relevant by S. 48 ibid. S. 49 ibid likewise permits the Court to take into consideration the opinions of persons having special means of knowledge as to the usages and tenets of any body of men which may be in dispute: see also Garuradhwaja Prasad v. Superundhwaja Prasad(16).

17. Before discussing the evidence adduced in the case it is just convenient to dispose of at this stage, an argument advanced by the learned advocate for the plaintiffs to the effect that the Swetambari Dasashrimali sect stands distinct from other sects of Jains and that, if a custom of the type alleged by the defendants obtains anywhere in these sub-sects, it would not bind the parties in the present case. This argument is indeed very plausible, but there is not much substance in it.

18. In Harnath Pershad v. Mandil Das, it was held that the terms “Jain” and “Saraogi” are synonymous. Again in Mt. Bulakan v. Ratan Lal, A.I.R 1928 All. 656 the four main divisions of the Saraogi Jains are stated to be Parma, Oswal, Agarwal and Khandewal. According to Mr. Motichand, solicitor, the witness for the defendants examined on commission, who is himself a Visha Shrimali Swetambari Jain, the custom pleaded in the present case prevails in all the Jain castes and subcastes such as Dasa Shrimali, Visha Shrimali, Dasa Oswal, Visa Oswal, etc. Hirachand (P.W 6) stated that Swetambari Jains of Balapur are Shrawaks and that there was no distinction between the rights of a Swetambari Jain widow and a Vaishnava Jain widow and that a Swetambari can become a Vaishnava and vice versa. Ishwardas (P.W 10) also deposed to the conversion of a Vaishnava Jain into a Swetambari Jain and vice versa and further stated that:

“the wahiwat at Balapur and the wahiwat prevailing in Gujrat amongst my caste people is the same.”

19. Ramji (P.W 11) also testifies to the fact that the same practice prevails amongst all Jains including Porwal, Oswal Dasa Shrimali and Visha Shrimali regarding the rights of a Jain widow in the property inherited by her from her husband. Baglal (P.W 12) also made no distinction between a Swetambari and a Vaishnava Jain and the different subsects.

20. Most of the defendant's witnesses also testify to the fact that the practices in the several subcastes of Swetambari Jains, regarding right of inheritance of a Hindu widow and her power of disposition of her husband's property in her hands, are the same. Some of them even go to the length of stating that in this matter there is no difference between Swetambari and Digambari Jains in whom the difference lies only in respect of worship and ritual. In the latest Privy Council case of Honasa v. Kalyanchand(17), this distinction in the ritual was pointed to be that Digambari idols are worshipped in a state of complete nudity, while the idols of the Swetambaris are covered, draped and decorated with jewellery and ornaments. It will thus be seen that, if the custom pleaded in the present case is found to obtain among other sub-sects of Jains, it will certainly bind the section to which the parties in the present case belong.

21. We will now proceed to analyse the evidence that has been adduced in the case. Altogether the evidence on the record furnishes 15 following instances ranging from 17 to 52 years in the past of alienations by widows of their husbands' properties which were not challenged by the reversioners:

Instance 1. Gangabai sold houses to Jain temple 17 or 18 years ago. This is testified by Uttamchand (D.W 1), Kalidas (D.W 2), Supdasa (D.W 3), Supdasa (D.W 6), Basantlal (D.W 7) and even by Lalchand (P.W 9).

Instance 2. Harkuarbai sold away houses to a Jain temple 17 or 18 years ago. This is testified by Uttamchand (D.W 1), Supadasa (D.W 3), Basantlal (D.W 7) and Lalchand (P.W 9).

Instance 3. Fatribai sold a field to a Kunbi as is testified by Uttamchand (D.W 1) and Lalchand (P.W 9). The date of this alienation has not, however, been given by the witnesses.

Instance 4. Kovelbai sold a house 17 or 18 years ago as deposed to by Uttamchand (D.W 1), Kalidas (D.W 2), Basantlal (D.W 7) and Lalchand (P.W 9).

Instance 5. Shejabai gifted a field 17 or 18 years ago as testified by Kalidas (D.W 2) and Ishwardas (P.W 10).

Instance 6. Bayabai disposed of all property in charity 25 years ago as deposed to by Mr. Jaikumar (D.W 4).

Instance 7. Chimabai of Karanja gifted a building inherited by her from her husband and the gift was upheld in the law Courts in these provinces as deposed to by Mr. Jaikumar (D.W 4).

Instance 8. Mr. Jaikumar (D.W 4) also testified to a gift by a Jain Digambari widow of property inherited by her from her husband.

Instance 9. Chandabai sold a field 20 years ago as deposed to by Panachand (D.W 5).

Instance 10. Panabai sold a house 50 or 52 years ago to the uncle of Panachand (D.W 5) and father of Supdasa (D.W 6).

Instance 11. Gulabbai sold a house 25 years ago as deposed to by Panachand (D.W 5) and Ishwardas (P.W 10).

Instance 12. D.W 8, Thakurdas' paternal aunt, had sold a house 40 or 50 years ago. The age of this witness was 80 years old when he was examined.

Instance 13. Manibai sold a house.

Instance 14. Potelal's widow made a gift of two fields.

Instance 15. Kaveribai made a gift of a field. The last three instances are deposed to by Ishwardas (P.W 10).

22. It may be noted that most of these instances are from Balapur itself where the parties to the suit reside. The most important instance is that of an alienation by a widow of Dasashrimali caste from Gujrat which was upheld by the Bombay High Court; see Madanji Devchand v. Tribhowan Virchand(18). In Harnath Pershad v. Mandil Dass(19) it was held that a childless Jain widow acquires an absolute right in her husband's separate property and that there is no material difference between the custom of the several sects of Jains. In Sheo Singh Rai v. Dakho(20) the same custom was upheld by their Lordships of the Privy Council in a case from Allahabad and on the basis of this decision the case of Shimbhu Nath v. Gayan Chand was also decided, the evidence of the three transactions given there being held insufficient by itself to prove the custom. So far as the Central Provinces are concerned, there are two unreported decisions of this Court wherein a Jain widow's absolute right over the self-acquired property inherited from her husband was upheld by this Court as being based on an ancient custom: see Moji Lal v. Mt. Gori Bahu(21) and Mt. Sano v. Puran Singh.

23. We have scrutinised with some care the evidence in rebuttal given on behalf of the plaintiffs, but in our opinion that evidence fails in its purpose. As already noticed, some of the plaintiffs' own witnesses have testified to the several alienations noted above. The evidence on the point has been very carefully analysed by the learned Additional District Judge in para. 20 of his judgment and we need not, therefore, recapitulate it here. Sufficient it is to say that we entirely agree with the learned Judge in his estimate thereof.

24. Over and above the instances given by the defendants' witnesses of the unchallenged alienation by Jain widows, six of the witnesses are from Balapur and they swear to the observance of the custom set up by the defendants not only in their own sub-seet but in Jains of other sects. Supdasa (D.W 6) stated that he came to know of this custom from his Guru and his father. Moreover, two of the defendants' witnesses, viz. Messrs. Jaikumar and Motichand are graduates in law and leaders of Digambari and Swetambari sects respectively and who have made a special study of the customs prevailing in their community. They not only testify to the prevalence of the custom but give instances in which the custom was observed by the community as law. The evidence of these witnesses, therefore, comes well within the purview of Sections 32(4), 48 and 49 of the Evidence Act. All of them, moreover, are absolutely disinterested and their testimony must naturally carry great weight on the point under consideration.

25. We shall now briefly review the following cases, which were cited by the learned advocate for the plaintiffs apparently in support of his argument that the evidence on the record was insufficient to sustain the finding as to the existence of the custom set up by the defendants. Having carefully examined them, however, we are of opinion that as no single one of them lays down any new principle and as each one was decided on its own materials, they do not in any way support the plaintiffs' case on the point under consideration.

(1) Ramalakshmi Ammal v. Sivanantha Perumal Sethuraya(22). All that was laid down in this case was that the best available evidence as to custom should be given in a particular case. Their Lordships considered, agreeing with the High Court, that the only evidence offered in the case, namely, the Collector's letter and summary, was not properly admissible and, if received, could not be safely relied on as affording clear and unambiguous proof of existence of an ancient and invariable custom in the District.

(2) Durga Charan Mahto v. Raghunath Mahto(23). The custom of primogeniture set up in this case was held act proved for want of sufficient evidence.

(3) Chotay Lal v. Chammoo Lal(24). There was no evidence led at all to prove the custom alleged in this case and, as appears from p. 751 of the report, even the binding arrived at by the Judge was not objected to.

(4) Abdul Hussein Khan v. Sona Dero(25). In this case the custom of excluding females from succession in a Mahomedan family in Sind was held not established, because prominent members of the families concerned denied the existence of such a custom.

(5) Gettappa v. Eramma(26). In this case the question was if a Jain widow could, by custom of the caste in the Madras Presidency, make a valid adoption of a son to her husband without the authority of her husband or consent of his sapindas. The custom was held not proved because there was a previous decision of the same Court negativing such a custom in Peria Ammani v. Krishnaswami(27).

(6) Mookka Kone v. Ammakutti Ammal(28). In this case the custom set up was to exclude widows of a deceased last male owner of the Yadava caste, dying without issue, in favour of his nearest dayadhis. It was held upon the evidence recorded in the case that the custom was not proved and that, even if it existed in the past, it had ceased to be uniform and invariable by reason of inroads from time to time and it was too late in the day to revive it, especially as it seemed to be opposed to the present rules of equity and justice.

(7) P.A.L. Pl. Palaniappa Chettiar v. V.N.S. Chockalingam Chetti(29). The custom alleged in this case was held not proved because the evidence was given of only one definite instance and one vague instance of a very modern date and neither of them prior to the date of the suit.

(8) Rahimatbai v. Hirbai(30). In this case an attempt was made to prove a custom of inheritance among Khoja Mahomedans at variance with the rules of Hindu Law, by the opinion of the leading members, of the caste. It was held that mare opinion without specific instances in which the custom was observed and followed was not enough to establish the custom.

(9) Chandika Baksh v. Muna Kunwar(31). In this case a family custom alleged to exist among Ahban Thakurs of Oudh in derogation of the ordinary Mitakshara Law was held not proved by four instances of the custom of comparatively modern date which their Lordships found to be the only portions of the evidence adduced which supported it.

(10) Rama Nand v. Surgiani(32). All that was laid down there at p. 223 was that in establishing a custom the kind of evidence that ought to be regarded is evidence showing that the right claimed by custom was more or less contested and the contest abandoned by some one who, if the custom had not existed, would have been entitled or evidence, showing that generally in the district the custom was followed to the exclusion of persons who, if it had not been for the custom, would presumably have enforced their right under the general law. The custom alleged was not established in this case.

(11) Bulaqan v. Ratan Lal(33). In this case the custom of the kind which is set up in the present case was not pleaded during the course of the trial but was sought to be raised as a point of law in the course of the first appeal. It was held that, unless the special custom were pleaded and proved, it could not be considered.

(12) Manohar Lal v. Banarsi Das(34) In this case it was held that there was a custom prevailing among the Jain community by which a widow had power to adopt a son to her deceased husband without the special authority to that effect and that a married man may lawfully be adopted. Oral evidence of instances proving the exercise of such a right within the last 40 years was held sufficient to establish the custom.

(13) Sardar Singh v. Kunj Bihari Lal(35). In this case the alienation by a Hindu widow of a portion of the husband's estate for the purposes of the spiritual benefit of her husband was upheld because the alienation related to a very small part of the estate.

(14) Mt. Bashirbi v. Abdul Sattar (A.I.R 1925 Nag. 179). In this case the custom set up was held not proved because the evidence consisted merely of the defendant himself and another witness who belonged to the same family as the defendant.

26. Looking therefore to the entire material upon the record in the light of the principles laid down in the decided cases noted above we think the conclusion is irresistible that the custom set up by the defendants has been clearly established in the present case. Apart from the oral evidence and instances given by the witnesses, we think on the principle adopted in Shimbhu Nath v. Gayan Chand wherein that Court decided the case solely on the strength of the earlier decision in Sheo Singh Dakho, this case can be decided solely upon the decision of the Bombay High Court in Madonji Devchand v. Tribhowan Virchand which upheld the same custom among the same sub-sect to which the parties in the present case belong, the more so, when the plaintiffs' own witness 10, Ishwardas, unequivocably stated that

“the wahiwat at Balapur, and the wahiwat prevailing in Gujrat amongst my caste people are the same.”

Point 4. The matter involved in this point was the subject matter of issues 1 and 2 and has been dealt with by the learned Additional District Judge in paras. 10 to 15 of his judgment. On the pleadings of the parties and the materials on record, it is impossible to uphold the contention of the plaintiffs' learned advocate that the findings of the learned Additional District Judge on these issues are wrong.

27. There is no presumption that the property in the hands of a member of a Hindu family is joint or ancestral property. The character of such property must be established by the plaintiff who seeks to lay a claim to it: Vithal v. Siva(36) and Birdichand v. Popatlal(37). It was pleaded by the plaintiffs that their grandfather, Udechand, had a house and did sarafi business in gold and silver, that at his death his house and the business same into the hands of his two sons, Misrichand and Holchand and that they acquired the whole of the property in dispute out of this ancestral nucleus. It was, however, admitted at a later stage of the pleadings, that the ancestral house was only used for residence and did not yield any income.

28. There is no proof on record that Udechand was a saraf and left any sarafi business at his death which was continued on by his sons. The ancestral house is admittedly in the possession of the plaintiffs. Whether it went to the plaintiffs' share at the alleged partition between them and Holchand, or whether the latter relinquished his claim over it, is absolutely immaterial for the determination of issue 1 in the case. It is obvious that the house could not, in law, furnish any nucleus in the hands of either party for acquisitions made subsequent to the death of Udechand so as to clothe them with the character of ancestral property: Birdichand v. Popatlal.

29. This then being the position, it is unnecessary to determine what property was acquired by Holchand so long as he did not separate from Misrichand or from the plaintiffs or to discuss the point of time when the separation between the two took place. Even the joint acquisitions of the two brothers without the aid of any income from the ancestral nucleus would not make the property in their hands “ancestral property.” It is admitted that whatever property Holchand left at his death was his separate property. Whether it was in its origin his self-acquisition, or having been jointly acquired by him and Misrichand came to him at the partition, is not of any consequence for the decision of the present case, which rests solely on the plea that Kaveribai, a Jain widow, had, by force of immemorial custom, acquried an absolute right of disposal over the property inherited by her from her husband because it did not partake of the character of ancestral property of the husband.

30. The plaintiffs' learned advocate appeared to be under a clear misconception of law when he tried to argue that, even if the property was acquired solely by the joint exertions of the two brothers without the aid of ancestral nucleus, it would still partake of the character of ancestral property if soma of it went to Holchand at the partition between him and Misrichand or his sons. No authority has, however, been cited in support of this argument and, in view of the clearness of the law on the point, it is impossible to accept this contention as correct.

31. It was next suggested by the learned advocate for the plaintiffs that, in the absence of any good evidence that Holchand relinquished his share in the ancestral house, it must be presumed that he must have done so by getting its equivalent in cash from Misrichand and this would form ancestral nucleus in his hands so as to clothe his acquisitions with the character of ancestral property. In the absence of any authority in support of this contention we find it impossible to entertain such a violent presumption. Instances are not wanting where go-ahead members of a joint Hindu family, which does not possess any income-yielding ancestral property, relinquish their interest in the same in favour of their more indolent coparceners and go out into the world to make their fortunes. On such evidence as there is on record, Holchand seems to have possessed such a spirit when he left the ancestral house and began to do business on his own account. For the reasons given above, in addition to those given by the learned Additional District Judge, we hold, agreeing with him, that the property left by Holchand at his death was not his ancestral property so as to take the same out of the purview of the custom set up in the present case and successfully established. The plaintiffs' appeal must, therefore, fail and is dismissed with costs.

32. On the appeal of the defendants the only question to be determined is concerned with the ownership of the property covered by Sch. A. The plaintiffs claimed it as belonging to Holchand's estate, while the defendant alleged that it was theirs with the exception of item 253, which they said was gifted to defendant 1 by Kaveribai in 1918.

33. The finding of the Additional District Judge on this point as contained in para. 17 of his judgment is against the defendant, and Mr. Kotval, who appeared for them in this Court, urged that as it was a perfunctory finding it should be set aside in appeal. It is perfectly true that the learned Additional District Judge has not bestowed the same care and attention in sifting the evidence on record and weighing the probabilities bearing on this point, as he did in respect of the other questions which arose for decision and for the reasons to be given later, we agree with the learned advocate for the defendants that this finding must be set aside. (Here the judgment considered evidence on which the Additional District Judge had based his finding regarding, the property covered by Sch. A, and concluded). For the reasons given above disagreeing with the lower Court, we hold that, excepting the article No. 253, all the property in Sch. A did not belong to the estate of Holchand but that the same was the personal property of the defendants. We, therefore, accept their appeal and order that the plaintiffs' suit, excepting the claim for article No. 253 aforesaid be dismissed with all costs in both Courts.

S.N/R.K

34. Appeal dismissed.