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Hari Singh Vs. Magha Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H272
AppellantHari Singh
RespondentMagha Singh and ors.
Cases ReferredBasant Singh and Ors. v. Brij Baj Saran Singh
Excerpt:
.....filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - now, it must be pointed out that even in spite of the fact that the term 'adoption' is frequently used in customary law strictly speaking it amounts only to an appointment of an heir, and it is well settled that it is in no sense connected with religion, but partakes more of the character which the act assumed in the later rpman law as a simple nominis heredis institutio: their lordships are satisfied that the parties to the suit are governed, not by the..........district of jullundur. on kanhays's death the revenue authorities mutated his land in favour of hari singh on the ground that he was kanhaya's adopted son. the plaintiffs who were the collaterals of kanhaya brought a suit for possession of half the suit property alleging that they and hari singh being the collaterals of kanhaya in equal degree, they were entitled to one-half of the property.' hari singh resisted the suit on the grounds inter aha that he was the adopted son of kanhaya and in his presence the plaintiffs could not succeed to any of the property left by him. the trial sub-judge holding that hari singh's adoption had not been proved decreed the plaintiffs' claim for one half of the property which he found to be ancestral. on appeal the district judge upheld the judgment.....
Judgment:

Teja Singh, J.

1. The suit property belonged to one Kanhaya, a blacksmith of village Lohar, in the district of Jullundur. On Kanhays's death the revenue authorities mutated his land in favour of Hari Singh on the ground that he was Kanhaya's adopted son. The plaintiffs who were the collaterals of Kanhaya brought a suit for possession of half the suit property alleging that they and Hari Singh being the collaterals of Kanhaya in equal degree, they were entitled to one-half of the property.' Hari Singh resisted the suit on the grounds inter aha that he was the adopted son of Kanhaya and in his presence the plaintiffs could not succeed to any of the property left by him. The trial Sub-Judge holding that Hari Singh's adoption had not been proved decreed the plaintiffs' claim for one half of the property which he found to be ancestral. On appeal the District Judge upheld the judgment and decree of the trial Court. Against the decree of the District Judge both sides preferred further appeals to the High Court, Lahore. The Bench took the view that the Courts below had erred in deciding the question relating to the factum and validity of adoption on the strength of Hindu law and in not paying any attention to the plea urged on behalf of Hari Singh that parties were governed by Customary law. Accordingly it remanded the case for the trial of the following two additional issues framed by it:

1. Whether the parties are governed in matters of adoption by Customary law?

2. It the answer to issue 1 is in the affirmative, whether the adoption alleged was valid?

Both the trial Court and the learned District Judge have returned their findings in Hari Singh's favour. To these findings the plaintiffs have put in objections.

2. Before proceeding, it is necessary to dispose of the preliminary objection raised by Hari Singh's counsel that the plaintiff's objections were barred by time, inasmuch as they were not preferred within the time allowed by the Bench. The order of the Bench was that ten days would be given to each of the parties to file objections to the findings of the District Judge. The report of the District Judge is dated 8th March 1947 but the date given under the memo of costs which accompany the report is 18th March. This shows that the report could not have been submitted to the High Court before 18th March and could not have reached that Court before 19th in any case. The objections were put in on 26th March. They are, therefore, within time.

3. The finding of the Court below that Kanhaya was governed by agricultural custom is supported by voluminous evidence and learned Counsel for the plaintiffs made no effort to challenge it. This leaves us only with issue 2 framed by the Bench of the Lahore High Court. The trial Court thought that all that it was required to decide was whether the alleged adoption of Hari Singh by Kanhaya was valid according to custom and that as the issue stood it was not called upon to give any finding regarding the factum of adoption. The District Judge though he held that the trial Court's interpretation of the issue was correct and it was not its duty to decide whether or not Kanhaya had actually adopted Hari Singh as his son, nevertheless discussed the evidence relating to the adoption and found that the adoption was proved. Learned Counsel for the plaintiffs halfheartedly criticised the procedure adopted by the District Judge and maintained that in view of the words of issue 2 the District Judge had no business to record his opinion about the factum of adoption. I cannot say that the contention is wholly devoid of force, but since both sides had adduced whatever evidence was in their possession and it also appears that arguments regard, ing the factum of adoption were addressed before the learned District Judge by counsel for both sides there was nothing wrong in the District Judge's recording his opinion thereon particularly so when in order to decide whether or not the alleged adoption was valid according to custom it was necessary to find out what steps, if any, had Kanhaya taken in connection with the alleged adoption. But even if it be assumed that the finding of the learned District Judge on the factum of adoption was not strictly in order all that the plaintiffs' learned Counsel could ask us to do was to go through the whole evidence bearing on the point and to arrive at an independent conclusion thereon, but when we allowed -, learned Counsel to take us through the evidence and to convince us, if he could, that no adoption had taken place as a matter of fact he frankly admitted that the evidence produced by Hari Singh in support of his adoption was simply overwhelming and there was no doubt that he was adopted by Kanhaya, that the adoption took place publicly and in the presence of the brotherhood, that after that Kanhaya executed a document declaring the adoption and treated Hari Singh as his son and heir throughout his life.

4. The only point that learned Counsel raised was that adoption was illegal for the reason that at the time it took place Hari Singh was an orphan. His argument was that Hari Singh had not been able to prove by evidence that the adoption of an orphan was valid under the custom by which he was bound, nor was there any general custom in favour of the adoption of an orphan. Accordingly, learned Counsel urged, we must fall back upon the provisions of the Hindu law and that law definitely prohibited the adoption of an orphan. Now, it must be pointed out that even in spite of the fact that the term 'adoption' is frequently used in Customary law strictly speaking it amounts only to an appointment of an heir, and it is well settled that it is in no sense connected with religion, but partakes more of the character which the act assumed in the later Rpman law as a simple nominis heredis institutio: that is to say, it is a more or less public institution by a sonless owner of land of a person to succeed him as his heir. See in this connection remarks made in the Introduction to Chap. 3 of Rattigan's Digest of Customary Law which were approved of by the Lahore High Court in Moman v. Mt. Dhanni and Uda A.I.R. 1920 Lah. 415. As was pointed out by Sir Meredyth Plowden in Bulla v. Budha 50 P.R. 1893 (F.B.), the leading case on adoption, the customary adoption of the agricultural tribes of the Punjab has no real connection with the adoption of Hindu law; the latter is based on the idea of spiritual, the former on the idea of purely practical and temporal benefit. It is for this reason that in almost all the agricultural tribes which recognise the institution of adoption neither any religious ceremony nor any limit as to age is considered essential to the validity of an adoption. Under Hindu law the idea underlying the adoption being that of spiritual benefit it is accompanied by religious ceremony and one of the indispensable conditions for the validity of the adoption is that there should be a formal giving and taking. In the case of a person whose parents as not alive there is no one to give. Accordingly, he cannot be validly adopted. Under customary adoption no giving or taking and no religious ceremony are necessary.

5. Accordingly, it cannot be urged with any show of reason that an orphan cannot be adopted. This view is supported by two Privy Council decisions. The first is Ramkishore and Ors. v. Jainarayan and Ors. A.I.R. 1922 P.C. 2. The family to which the case related were Hindus of Dhusar caste who had migrated into the Central Provinces from the Gurgaon district of the Punjab somewhere about 1836. The question was whether among them the adoption of an orphan was valid. The defendants pleaded that the family was governed by the customary law of the Gurgoan district and not by Hindu law, and that the adoption was valid according to the customary law. The plaintiffs' position was that the Dhusars were not agriculturists and consequently were not governed by any tribal custom. The trial Judge held the adoption to be invalid. In coming to this conclusion he was obviously influenced by the fact that the Code of Tribal Custom of the Gurgoan district did not expressly say anything about the adoption of an orphan.

6. The learned Judges of the Judicial Commissioner's Court who heard the appeal upset the finding of the trial Court on the ground that no religious significance attached to the appointment of an heir under the Punjab Customary law and there was nothing in the Customary law applicable to Dhusars which precluded the adoption of an orphan. Their Lordships of the Privy Council while dismissing the appeal from the decree of the Judicial Commissioner's Court made the following observations:

Their Lordships are satisfied that the parties to the suit are governed, not by the Mitakshara as recognised by the School of Benares, but are governed by the customary law of the Dhusars of the district of Gurgoan. They have further come to the conclusion that it is consistent with that customary law that the adoption of orphans by Dhusars is valid.

7. In the second case, Basant Singh and Ors. v. Brij Baj Saran Singh , the question was whether, an adoption made by Rani Raghubir Kunwar, widow of Kushal Singh, a Hindu Jat, whose family originally belonged to Delhi district tail, had subsequently migrated to Kuchesar in the United Provinces was valid. The adoptee at the time of the adoption was an orphan. One side contended that Khushal Singh's family was governed by Hindu law and accordingly the adoption was invalid. The other side pleaded that the case must be decided according to custom prevalent in the Delhi district, because Khushal Singh and Ma family were governed by custom, and acording to that law the adoption was valid. Their Lordships of the Privy Council after holding that Customary law applied to Khushal Singh upheld the validity of the adoption in the following words:

The reason that under the Mitakshara law, an orphan cannot be adopted, is because a boy can fee given in adoption only by his father or his mother, and snob giving is an essential part of the ceremonies, but answer 87 in the 1911 Manual does not prescribe snob giving as a formality necessary to constitute a valid adoption, answer 83 shows that a brother can be given in adoption, and answer 86 shows that a sister's son or a daughter's son may be adopted; and, further, answer 8 shows that a boy may be adopted even after tonsure or investiture with the sacred cord, and that there is no age limit except that the age of the adoptive son should be less than that of the adoptive father. This makes it dean that the conditions of adoption under the Mitatshara law are completely superseded by the customary law, and there is no reason for excluding an orphan under the latter; but, if it were necessary, their Lordships agree with the High Court that the evidence in the present case is sufficient to place the validity d the adoption of an orphan beyond question.

8. No instances have been proved in the present case regarding the adoption of an orphan, bat generally the custom bearing on the question of adoption prevalent in the Jullundur district is not dissimilar to that found by their Lordships m the Delhi district. The answer to question 68 of the Jullundur District Customary law compiler by Rai Bahadur Bhai Hotu Singh in 1913. If was that among most of the tribes there was no age limit and no regard was had to the facts of tonsure or investiture with the sacred cord of the adopted son in his own family, and the only restriction generally recognised was that as a general rate the person adopted should be selected from collaterals. As regards the formalities, it is stated in answer to question 71 that the essence of adoption is that the fact of adoption be declared before the brotherhood or other residents of the village and the usual practice is that the baradari is gathered together and the adopter declares in their presence the fact of the adoption sweets-are distributed and a deed of adoption is also drawn up. Answer to question 72 is that in the Jallundur Tahsil (except among Mahtons) and in the Philluar and Nawanshahr Tahsils an adopted-son does not inherit his natural father, bat to-can do so if his natural father dies without leaving other sons. As regards the general custom, it will appear from para. 35 of Rattigan's Digest of Customary Law, that there is only one essential condition, namely, that the adoptee must be a kinsman of the adopted. Paragraphs 36 and 37 lay down that there are no restrictions as regards the age or the degree of relationship of the person to be appointed, and that a daughter's or a sister's son is generally recognised as a proper person to be adopted among Hindu non-agriculturists, though among agriculturists especially in the eastern districts of the Punjab, such appointments are not now favoured, unless made with the consent of the agnates. In para. 38 it is stated that it is no valid objection to an appointed heir that he is the eldest or the only son of his natural father.

9. In view of all this, I am of the opinion that the objection of the plaintiff's learned Counsel against the validity of Hari Singh's adoption must be overruled. No other point having been argued before us, I would allow Hari Singh's appeal and dismiss the plaintiff's suit with costs throughout. The plaintiffs' appeal fails ipso facto and will be dismissed with costs.

Khosla, J.

I agree.


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