Mehar Singh, C.J.
1. On May 31, 1956, Kartar Singh, a Jat of village Odyala in Tehsil Kharar of Ambala district, executed the adoption deed, Exhibit D-2, adopting Ranjit Singh, appellant in this second appeal, as a son to himself. They were governed in the matter of adoption by the rules of Punjab Customary Law and so the adoption deed was a deed making a customary appointment of an heir. Ranjit Singh, appellant, is the grandson of the real uncle of Kartar Singh. In this deed it is recited that he had already adopted Ranjit Singh when the latter was of 6 or 7 years of age. So that was some 29 or 30 years before the date of the deed. The deed further recites that certain ceremonies had been carried out and that ever since Kartar Singh had brought up Ranjit Singh appellant as real son. It then says--
'Ranjit Singh Mazkoor Pisar Mutbanna Min Mukar Ka Hai Aur Usko Men Hayat Men Aur Mere Maine Ke Baad Bamissal Farzandan Salbi Ke Haqooq Hasil Hain Aur Rahenge.' and this may be translated in this manner--
' The aforesaid Ranjit Singh is my adopted son and during my lifetime he has and after my death he will have rights like natural sons.' In the deed there is no reference to the property of Kartar Singh. Death of Kartar Singh occurred on June 16, 1958. He left behind immovable property, of which description sufficiently appears in the plaint by Hamam Singh, who was a third-degree collateral of Kartar Singh in which he sought his share of the inheritance of Kartar Singh on the ground that the immovable property left by the latter was ancestral qua him and that, in any case, no adoption in fact ever took place, further pleading that the adoption deed was no more than a mere paper transaction. Harnam Singh died during the pendency of the suit and has been represented by his two sons, Garja Singh and Bhajan Singh, respondents in this second appeal. The broad defences of Ranjit Singh, appellant, were that the land was not ancestral qua Harnam Singh plaintiff and Kartar Singh deceased, that he was duly adopted according to custom, with proper ceremonies, followed by the deed of adoption, Exhibit D-2, and that, in any case, the deed of adoption operated as a will. So that the property being non-ancestral, the plaintiff had no claim against him.
2. The trial Judge found that the property is non-ancestral so far as Harnam Singh plaintiff is concerned, and this is a matter which was not in controversy in appeal before the District Judge. The trial Court further foundthat the adoption of Ranjit Singh appellant by Kartar Singh at the age of 6 or 7 years was not proved, the evidence in that respect having been found unreliable, and that the adoption deed, Exhibit D-2, was nothing more than a mere paper transaction, reciting an adoption which had in fact never taken place. This finding has been affirmed by the District Judge on appeal, after review of the whole evidence on this matter. Both the Courts have also come to the conclusion that there was no evidence that Kartar Singh ever treated Ranjit Singh appellant as a son and in fact there was evidence to the contrary that he did not do so and could not have done so. The two Courts have concurred in this that the adoption deed, Exhibit D-2, on its language and terms cannot be read operating either as a gift deed of his property by Kartar Singh to Ranjit Singh appellant or a testamentary disposition of thesame after his death by Kartar Singh.
3. In second appeal, when the matter came for hearing before my learned brother. Mahajan, J., Ishar Singh v. Surat Singh, (1923) ILR 4 Lah 356 = (AIR 1924 Lah 103) and Shib Singh v. Suba Singh, AIR 1935 Lah 658, were referred to during arguments by the learned counsel, and sensing a certain inconsistency in the two decisions, either decision being by a Division Bench, he made a reference of the matter to a larger Bench. The matter that requires consideration may be stated in this manner 'Where the property is non-ancestral and the adoption is found as a fact not to have been proved, can a document as a deed of adoption, Exhibit D-2 in this case, operate either as a gift or a testamentary disposition by its executant?'
4. The answer to the question is given in Ishar Singh's case, (1923) ILR 4 Lah 356 = (AIR 1924 Lah 103) by no less an authority than Sir Snadi Lal, C. J., in this way:--
'Now it has been repeatedly held, vide inter aha Fanindra Deb v. Rajeswar Das, (1884) 11 Cal 463 (PC) and Lali v. Murlidhar, (1906) ILR 28 All 488 (PC) that, where a deed contains a testamentary disposition in favour of a person believed to be the adopted son, it is a question for consideration whether on the failure of adoption the gift also falls. The Court has to decide in each case, after considering the language of the document and the surrounding circumstances, whether the adoption was the reason or motive for making the gift or request, or whether the mention of the donee or legatee as an adopted son was merely descriptive of the person to take under the gift or request and he was to take the property even though his adoption may not be valid. This is the law with respect to cases where there is an express gift or bequest in favour of an alleged adopted son. The instrument before us, however, does not mention any gift inter vivos to Surat Singh or any testamentary disposition in his favour. It contains, merely a declaration of adoption, which declaration has been found to be incorrect, and does not even remotely refer to any property held by Canda Singh. We fail to understand how such a deed can be treated as a deed of gift.'
In order to find out exactly what was stated by the adoptive father in the adoption deed in Ishar Singh's case, (1923) ILR 4 Lah 356 = (AIR 1924 Lah 103), we have had the record of the second appeal called before us and from the judgment of the District Judge this sentence makes this aspect clear: 'The deed of adoption in the present case does not refer to Ganda Singh's property, but apparently it would operate as a will and entitle Surat Singh to succeed to that property on Ganda Singh's death.' So that in Ishar Singh's case, (1923) ILR 4 Lah 356 = (AIR 1924 Lah 103), there was the deed of adoption which referred to the adoption of the adopted son and as such being entitled to the inheritance of the adoptive father. This was not held by the learned Judges to operate as a gift or a will. To my mind the learned Chief Justice has very accurately stated the law, if I may say so with respect, and it becomes clear from that statement of law that a deed of adoption, as in this case, Exhibit D-2, may on its own language and having regard to the surrounding circumstances, operate as a gift or a testamentary disposition, providing such a conclusion is justified from the language used and the circumstances surrounding the execution of the document and the making of the alleged adoption. But if no such inference is available and it is a mere declaration of adoption and no more, without the adoption having been actually proved as a fact, it does not operate either as a gift or a testamentary disposition. The whole thing depends upon the facts and circumstances of each particular case. In Chamba v. Jowahir Singh, 170 Punj Re 1882, the case was of an adoption by a Jat of a non-Jat; the argument was that ' if not regularly adopted, the defendant might still succeed as an appointed son, whom the deceased has designated as his 'heir', but this the learned Judges did not accept. The further argument was this--
'Next as to the argument that the deed, though it purports to be not a will which is a revocable instrument, but a deed of adoption, which is irrevocable, can be given effect to as a will. I do not think that we would be justified in disregarding the real character or the deed, to give it an effect which it was never intended to have. The reference to the adopted son being as such the heir of the adopter, is merely incidental, describing one of the effects of the adoption, and if the adoption fails, this reference cannot be given the operation of a testamentary disposition. It is essential to a will that the person making it should intend it to operate as such, and a statement by a man that another person is his adopted son, and therefore his heir, is not equivalent to a will in his favour in case it is found that there was no valid adoption.'
In the present case also the adoption not having been proved, the statement in the deed, Exhibit D-2, that Ranjit Singh appellant as adopted son of Kartar Singh would have rights like natural sons is not equivalent to a will in his favour. There are no words that spell out testamentary disposition from what is stated in the deed, Exhibit D-2. The very fact thatKartar Singh said in the deed that Ranjit Singh appellant would have, after his death, rights like natural sons, is in itself evidence that what he was saying was giving a description of the effect of adoption, which has not been found to have been proved in this case by the District Judge in first appeal. In Talia Bibi v. Budi, 130 Punj Re 1884, the language used by the adoptive father was 'of all my property, moveable, immoveable, both ancestral and acquired, in its fullness and entirety, this person is owner', and the learned Judges held that the language used was tantamount to a gift and not a will, but refused to give effect to it following Chamba's case, though there was an additional ground why the deed could not be given effect to as a gift because it was not registered. In Sant Singh v. Sadda, 63 Punj Re 1912, the adoption was held proved, the property was non-ancestral, and the learned Judges maintained that it passed to the adopted son. There is discussion in the judgment when an adoption deed may operate as a gift or a will, but that is connected with the Basic fact in the case that the adoption had been proved, though the validity of it was open to question. So this case is not helpful so far as the facts of the present case are concerned. In AIR 1935 Lah 658, the learned Judges found that the property was non-ancestral and the registered deed of adoption declared that the adoptive father had adopted Shib Singh as his son many yean earlier and that on his death 'Shib Singh would succeed to his property as his heir', and the learned Judges held--'In Exhibit D-3, the execution of which by Sardha several months before his death has been duly proved, it is clearly stated that on his death his property would pass to the appellant and there is no reason why effect should not be given to it.' This proceeds apparently on the basis that the deed of adoption in that case operated as a testamentary disposition of the property left by the adoptive father. In this approach there is no inconsistency in the decision of this case and that of Ishar Singh's case, (1923) ILR 4 Lah 356 = (AIR 1924 Lah 103).
5. The consideration of the cases cited, in so far as non-ancestral immovable property is concerned, settles these propositions according to the rules of customary law in Punjab--
(a) where the adoption is proved, though its validity is open to question, the immovable property of the adoptive father passes to the adopted son, and (b) if the adoption is not proved as a fact, it depends upon the facts and circumstances of a particular case whether the language of the adoption deed and the surrounding circumstances lead to the conclusion that it operates as a gift or a testamentary disposition, and (i) if such a conclusion is available, the alleged adopted son takes the property, but (ii) if such a conclusion is not available, he does not do so and the property passes to the natural heirs of the executant of the deed in intestacy
The basis of this is that in regard to non-ancestral property the holder of it has uncontrolled power of disposition, and, where hethus disposes it of, then it passes to the person in whose favour the disposition operates, but, where he fails to do so, then obviously it passes to his natural heirs. These propositions are an answer to the question posed in the beginning of this judgment.
Harbans Singh, J.
6. I agree.
7. D. K. Mahajan, J.
7. I entirely agree.