Oldfield and Straight, JJ.:— This is a suit to set aside a gift of certain ancestral property inherited from her husband made by Bachebi, a widow of the Bindala sect of Jains, on the ground that her act was illegal under Hindu law.
The Courts below have decreed the claim. It has been contended in appeal before us that the Hindu law of inheritance does not govern the Jain community, and it was argued that in the matter of succession they would be governed by the Indian Succession Act. The contention cannot be allowed. The case before us is not one relating to intestate or testamentary succession, and no argument can be founded on that Act, since its application to Jains is in our opinion excluded by the terms of s. 331 of the Act, by which the provisions of the Act do not apply to intestate and testamentary succession to the property of Hindus, the word Hindu being used in its generic sense to include Jains. Moreover, it is now settled law that the ordinary Hindu law of inheritance is to be applied to Jains in the absenee of proof of custom and usage varying that law. This was affirmed by the Privy Council in Chotay Loll v. Chunno Lall (1). Their Lordships say: “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 in the absence of proof the ordinary law must prevail.”
The ordinary law which will govern this case in the absence of custom to the contrary is the Mitakshara, and by that law the widow had no power to make the gift in question. Some evidence was produced with the object of showing that by custom prevalent among Bindala Jains a widow has absolute power over property inherited from her husband; but the lower Courts have held that the evidence does not establish any custom which can override the ordinary law, and in this respect we see no ground for interference.
In Sheo Singh Rai v. Dakho (2) it was observed that, among Jains of the Saraogi Agarwala sect, the soilless widow takes a very much larger dominion over the estate of her husband than is conceded by Hindu law; but that decision did not affirm any absolute right in the widow over ancestral property inherited from the husband, which is what we are concerned with in this case: and a custom established among one sect of Jains may not necessarily prevail among another, since the Jains are divided into numerous sects (gachasor-gotras), most of which do not eat together. We under-stand that the Bindala sect with which this suit deals is small in numbers and confined to the districts of Mainpuri, Etah, and Farukhabad; and we may assume that the defendant has produced all the evidence of usage which is procurable, and that is clearly inadequate to establish the right claimed for the widow over ancestral property inherited from her husband.
Some of the cases of alienations by widows cited were with consent of relations or such as the Hindu law permits, and the oral evidence adduced is not evidence on which a Court could rely: some of the witnesses for the defendant are not of the same sect, wheres those of that sect produced by plaintiffs deny the existence of the customary right claimed. We dismiss the appeal with costs.
Appeal dismissed.