SUNDRABAI HANMANTRAO KULKARNI Vs. HANMANT GURUNATH KULKARNI

JUDGEMENT

(1.) This is an appeal from a decree of the Joint First Class Subordinate Judge at Dharwar, and the question which arises on the appeal is as to the validity amongst Deshastha Smarta Brahmins in the Dharwar District of an adoption of a daughter's son. The question arises in this way. One Hanmant was the owner of certain watan lands, and he died leaving a widow Sundrabai, who is defendant No. 1. In 1914 Sundrabai adopted one Narayan, who was her daughter's son. Narayan died in 1917, and on November 16,1923, Sundrabai. adopted or purported to adopt defendant No. 2, who in point of fact is Nara-yan's father. Now, if the original adoption of Narayan was valid, it is not disputed that Sundrabai, as the mother of the last watandar, would not be entitled to adopt again in respect of watan lands, and therefore the adoption of defendant No. 2 would be invalid, and it is again not disputed that the vatan lands in that event would belong to plantiffs Nos. 1 and 2 as the heirs of the last holder. Plaintiffs Nos. 1 and 2 sue defendants Nos. 1 and 2 and the other defendants, who are tenants of the land, for recovery of the land, their contention being that the adoption of Narayan was valid. In the Court below the fact of the adoption was disputed. The learned Judge held the fact proved, and that finding has not been challenged on appeal. The only point which has been argued is whether the adoption of Narayan was invalid as being the adoption of a daughter's son. The issue raised by the learned Judge on that point was " Is the adoption valid as being that of a daughter's son by custom among the Deshastha Smarta Brahmins ?"

(2.) The general law on the subject is stated in Sir Dinshah Mulla's Hindu Law, 7th Edition, at p. 529, in these terms:- Subject to the following rules, any person who is a Hindu, may be taken or given in adoption :- (1) be must not be a boy whose mother the adopting father could not have legally married ; but this rule has been restricted in recent cases to the daughter's eon, sister's son, and mother's sister's son. This prohibition, however, does not apply to Sudraa. Even as to the three upper classes, it has been held that an adoption, though prohibited under this rule, may be valid, if sanctioned by custom;

(3.) So that under the general Hindu law adoption of a daughter's son is invalid, and the only question is whether there is a custom applicable to Deshastha Smarta Brahmins in the Dharwar District making such an adoption valid. No doubt, as Mr. Nilkanth says, when a party relies on a custom as establishing an exception to the general law, the burden is upon him to establish the custom. And, as was said by the Privy Council in Ramalakahmi Ammal V/s. Sivanantha Pevumal Sethurayar (1872) 14 M.I.A 570, 585, the custom proved must be both ancient and invariable, and the evidence by which it is established must be clear and unambiguous.