JUDGMENT
Macklin, J.
1. The plaintiff sued to recover a half share in the property in suit by partition with defendant No. 1 upon the ground of his having been adopted into the joint family. The fact of the adoption was disputed in the trial Court, and is still disputed in this appeal. But the main ground of contention was, and is, the validity of the adoption. The adoption was made by defendant No. 3 to her husband Rango. Defendant No. 3 is the sister of the plaintiff and is also the niece of Rango. But the fact that Rango married his niece is not material for the present purposes. What does matter is that the plaintiff is the son of Rango’s sister, and an adoption of that kind is prohibited by the general rule of Hindu law unless there is some custom to the contrary. The parties to the suit are Deshastha Brahmins living in the Belgaum district. The trial Court has held that the fact: of the adoption is proved and that there is a custom by which such. adoptions are recognised among Deshastha. Brahmins in the Belgaum district. Upon that ground he has, with one minor modification, allowed the claim of the plaintiff, and defendant No. 1 has come in appeal.
2. There are five witnesses to the fact of the adoption, and there is also a registered deed of adoption which was executed the day after. As far as we can see, there is no ground for disputing the correctness of the appreciation of the evidence by the learned trial Judge ; and all that has been alleged, in this appeal against that appreciation is the fact that plaintiff’s father-in-law Shriniwas, who took a not unimportant part in the ceremony, has not been called to give evidence. For this no explanation is offered ; but the absence of Shriniwas would not be a ground for disturbing the finding arrived at by the learned Judge, and we must hold that the adoption is proved.
3. But, as I said, the main ground of contention is the validity of the adoption. The learned Judge has based his decision partly upon the evidence of one witness who, like the plaintiff, is a Deshastha Brahmin and was adopted to his mother’s brother, and partly upon the decisions in three suits decided in the Belgaum district, two of which went in appeal to the High Court. It is contended that there is no justification in law for relying upon the reasoning of these decisions or upon the evidence upon which the decisions were based, and it is suggested that that is what the learned Judge has done in this case. But as I read his judgment what he has done is to apply the dictum of the Privy Council in Rama Rao v. Raja of Pittapur (1918) L.R. 45
I.A. 148 : s.c. 20 Bom. L.R. 1056 where at p. 154 their Lordships said :-
No attempt has been, as already stated, made by the plaintiff to prove any special custom in this zamindari. That by itself in the case of some claims would not be fatal. 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.
4. What seems to matter is not that there were a number of instances of adoptions of this kind that occurred in the Belgaum district, but that judicial recognition was given to what was stated to be a custom of the district regarding such adoptions.
5. It is, however, contended that there is authority against the recognition of any such custom to be found in Bhau v. Hari where the head-note reads :
Among the Deshastha Brahmins, the adoption of a sister’s son is a nullity.” That head-note, in my opinion, is definitely misleading. What was decided was that prima facie the adoption of a sister’s son among the Deshastha Brahmins would be invalid. But as no attempt had been made to show in that particular case that there was any custom in the community by which such an adoption would be valid, the adoption set up in the case must be held to be invalid. This case is clearly no authority for the contention that there is in fact no such custom as has been alleged here or that the Court refused1 to recognise any such custom.
6. There are many reported cases in which the custom among Deshastha Brahmins of adopting a daughter’s son has been recognised. But it is contended that those cases are no authority for upholding an alleged custom as regards the adoption of a sister’s son. There are, however, unreported cases in this High Court (as for example Bhagirthibai v. Hanmant (1934) F.A. No. 180 of 1930, decided by Murphy and Barlee JJ., on November 29, 1934 (Unrep.) and Yamunabai v. Jivaji (1937) F.A. No. 238 of 1934, decided by Sen and Norman JJ., on August 26, 1937 (Unrep.)) where the adoption of a sister’s son by a Deshastha Brahmin has been recognised. Indeed in Bhagirthibai v. Hanmant it was said ” We think that the custom has been sufficiently recognised by judicial decision “, and one of the cases upon which the learned Judges relied was Chimabai v. Mallapa (1922) 24 Bom. L.R. 489 which was a case not of Deshastha Brahmins but of Jains. In the course of the judgment in this latter case Mr. Justice Coyajee said (p. 493) “Special usages in favour of adoptions of daughter’s sons and sister’s sons have, moreover, been judicially recognised in some of the districts of this Presidency ” and that was one of the main reasons for the decision in the case. There seems to be no doubt that this is a case for the application of the principle laid down in Rama Rao v. Raja of Pittapur, and that we ought to recognise the custom alleged by the plaintiff in view of the fact that it has been judicially recognised by this Court on many previous occasions. I may also refer to this Court’s judgment in the last of the three cases relied upon by the trial Court, viz. Appaji Raghunath v. Krishnaji Bhimaji (1932) S.A. No. 701 of 1928, decided by Rangnekar J., on January 1, 1932 (Unrep.) where it was held that, as stated in the judgment of the lower appellate Court, this custom must be taken as prevalent among the Deshastha Brahmins in the Belgaum district.
7. There remains one subsidiary point. Along with this appeal defendant No. 1 has presented an application (Civil Application No. 25 of 1938) for adding points to his memorandum of appeal. At the time when the decree was passed defendant No. 2, who is the mother of defendant No. 1, was alive, and the decree provided that the plaintiff should be entitled to a half share in the properties (b) and (c) in the plaint only after the deaths of defendants Nos. 2 and 3 respectively, who at the time of the decree were in possession of those properties for their maintenance. We are asked to amend this order upon the ground that it may give rise to a misunderstanding and that defendant No. 1 may be prevented from obtaining a share in the property (c) though the plaintiff (now that defendant No. 2 is dead) will be able to obtain his share in the property (b). I do not think that there is any reason for making any correction in the order of the trial Court. In terms it applies only to the plaintiff and has the effect of restraining the plaintiff from taking a share1 in properties (b) and (c) until the widows are dead. It does not in terms affect the rights of defendant No. 1 at all, and there is nothing in the order itself which would prevent defendant No. 1 from obtaining possession of any share that he might be entitled to obtain in property (c) even before the death of defendant No. 3. Moreover there was an issue on the point raised in the trial Court and that issue in effect was found against defendant No. 1, and he ought to have made it a specific ground in his memorandum of appeal. There does not seem to be any reason to interfere, and we pass no order on the civil application for adding points to the memorandum of appeal.
8. The appeal is dismissed with costs.
