1. The plaintiff, who was the daughter of one Gopal, sued to set aside a sale deed executed in favour of defendant by Mt. Nonibahu, who was the widow of Gopal. The plaintiff is the daughter of Gopal's first wife, also called Nonibahu.
2. Both Courts have dismissed the plaintiff's suit, holding that as Mt. Nonibahu was a Jain widow, she had an absolute power of disposal over the estate inherited by her from her husband which was not ancestral, and that there was legal necessity.
3. The plaintiff makes this second appeal on the ground that the custom by which a Jain widow, has an absolute power of disposal over her husband's unancestral property is not proved, and that there was no legal necessity for alienation.
4. It is contended on behalf of the appellant that, the law as laid down by the Privy Council is, that Jains are Hindu dissenters and when their customs are set up they must be proved like other customs varying the ordinary law and, when so proved, effect must be given to them: cf, Sheokuarbai v. Jeo Raj (1921) 16 N.L.R 170—(1920) M.W.N 627 , 61 I.C 481 , 25 C.W.N 273 (P.C), Sheo Singh Rai v. Ddkho (1875-78) 1 All. 688 , 5 I.A 87 , 2 C.L.R 193 , 3 Suther. 529 , 3 Sar. 807 (P.C) and Chotay Lall v. Chunnoo Lall (1879) 4 Cal. 744 , 6 I.A 15 , 3 C.L.R 465 , 3 Sar. 880 (P.C).
5. Its has been held in Gangadhar Ram Rao v. Rajah of Pittapore (1918) 41 Mad. 778 , 45 I.A 148 , 35 M.L.J 392 , 24 M.L.T 276 , 16 A.L.J 833 , 28 C.L.J 428 , 5 Pat. L.W 267 , 28 C.W.N 173 , 47 I.C 354 , 20 Bom. L.R 1056 , (1918) M.W.N 922 (P.C) 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, it was also held in Harnath Pershad v. Mandil Dass (1900) 27 Cal. 379, that judicial decisions recognizing 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. In that case it was farther held that a childless Jain widow acquires an absolute right in her husband's separate property. This case was from Arrah but it was held that there was nothing to differentiate the Jains at Arrah from the Jains elsewhere. So also in Shimbhu Nath v. Gayan Chand (1894) 16 All. 379 , (1894) A.W.N 123, 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. This was a case from the Saharanpur District.
6. The parties in the present case are residents of Saugor and the existence of snob a custom among the Jains of Saugor has been recognised by this Court in the unreported case of Mojilal v. Mt. Gori Bahu S.A No. 416 of 1897 where the existence of the custom that a Jain widow has an absolute power over self-acquired property inherited by her from her husband was admitted. This is sufficient for the purposes of the present case. It has been contended that this decision refers to Pawar Jains whereas the parties to the present case belong to a different section of the Jain community, but it was never pleaded in the Courts below that there was any distinction as regards widows of the different sub-divisions of Jains. The plaintiff's witnesses 1 and 3 have themselves admitted the existence of the custom. In these circumstances, there are no grounds for interference with the findings of the lower Courts as to the existence of the custom.
7. This is sufficient for the decision of the appeal, but the lower Appellate Court has also dealt with the question of legal necessity. The findings of the Courts below as to the financial position of the widow are findings of fact which cannot be disturbed in Second Appeal. It has been found by the lower Appellate Court that in 1912 the widow was indebted to one Alam (D.W 6) to the extent of Rs. 347 and that the house was sold in order to pay off the debt and buy a small house. The respondent was aware that the house required repairs and that the debt was due to Alam.
8. There are no reasons for interference and the appeal is dismissed with costs.
9. Appeal rejected.