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Rattan Singh Vs. Nirmal Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H197
AppellantRattan Singh
RespondentNirmal Singh
Cases ReferredSabha Chand and Ors. v. Piara Lal A.I.R.
Excerpt:
.....constitution of india. in a writ application 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. - it is well-settled that a mere customary adoption or appointment as an heir does not carry with it the right to succeed to the occupancy rights of the adoptor or the appointer. 6. it is well settled that an adoption amongst' agriculturists of the punjab generally partakes of the nature of the kritrima adoption of the hindu law and 'creates merely a personal relationship between the adoptor and the adoptee. in such, a.....achhru ram, j.1. this is an appeal from the decree of the learned senior subordinate judge of jullundur reversing, on appeal, the decision of the subordinate judge of nawanshahr decreeing the plaintiff's claim for possession of 31 kanals of land situate in the village chak guru, and dismissing the suit.2. the facts that have given rise to this appeal may be briefly stated as fallows: khushala was the occupancy tenant of the suit land. on 4th october 1941 he gifted the land to nirmal singh defendant, his collateral in the third degree, being a great grandson of his uncle dal singh. rattan singh plaintiff, real nephew of the aforesaid khushala, brought a suit after the latter's death for possession of the land alleging that the suit land was ancestral qua him, that on the death of khushala.....
Judgment:

Achhru Ram, J.

1. This is an appeal from the decree of the learned Senior Subordinate Judge of Jullundur reversing, on appeal, the decision of the Subordinate Judge of Nawanshahr decreeing the plaintiff's claim for possession of 31 kanals of land situate in the village Chak Guru, and dismissing the suit.

2. The facts that have given rise to this appeal may be briefly stated as fallows: Khushala was the occupancy tenant of the suit land. On 4th October 1941 he gifted the land to Nirmal Singh defendant, his collateral in the third degree, being a great grandson of his uncle Dal Singh. Rattan Singh plaintiff, real nephew of the aforesaid Khushala, brought a suit after the latter's death for possession of the land alleging that the suit land was ancestral qua him, that on the death of Khushala he was entitled to succeed to the same under the provision of Section 89, Punjab Tenancy Act, that according to the custom governing the parties Khushala's powers of alienation over ancestral land were restricted, and that accordingly the gift made by him in favour of Nirmal Singh defendant was invalid and not binding on the plaintiff. The suit was resisted inter alia, on the pleas that the plaintiff had been adopted by Kahan Singh his grand, uncle and had, accordingly, lost the right to succeed to the land left by Khushala as his nephew; that Nirmal Singh defendant had been adopted by the aforesaid Khusbala, and that the gift in his favour was in the nature of an acceleration of succession. The ancestral nature of the land was also denied. On the pleadings of the parties, the learned trial Judge framed the following issues:

(1) Whether Rattan Singh is the adopted son of Kahan Singh? If sO what is its effect.

(2) Whether the property in suit is ancestral qua the plaintiff?

(3) Whether Nirmal Singh is the adopted son of Khushala and the gift in his favour is valid?

(4) Relief.

Subsequently another issue was added as issue 2-A and ran as follows:

(2-A) Whether the question of adoption by Kahan Singh of the plaintiff is res judicata?

The learned trial Judge disposed of issues 1, 2-A and 3 by means of his order, dated 13th August 1945. On the first issue, he held that the appointment of the plaintiff by Kahan Singh being admittedly a customary appointment the plaintiff was not debarred from succeeding collaterally to Kushala deceased. In view of the decision on issue 1, it was not considered necessary to give any finding on issue 2-A. On issue 3, it was held that the alleged adoption of Nirmal Singh by Khushala being admittedly customary, the defendant was not a lineal des cendant of Khushala within the meaning of Section 59, Tenancy Act, and, therefore, not an heir of the deceased in preference to the plaintiff. It was further held that the gift in favour of the defendant by Khushala could not be regarded as valid. By means of his judgment, dated 26th March 1946, the learned Subordinate Judge decided issue 2 in the plaintiff's favour and in the result decreed his claim. The defendant went up in appeal to the learned Senior Subordinate Judge who held that Nirmal Singh defendant had become by reason of his adoption by Khushala, a lineal descendant of the latter and, therefore, was entitled to succeed to his occupancy' rights in preference to the plaintiff. Feeling aggrieved from this decree the plaintiff has come up in second appeal to this Court.

3. After hearing the learned Counsel for the parties, I am of the opinion that the decree of the learned Senior Subordinate Judge cannot be sustained and that this appeal must succeed.

4. The parties to the litigation are Jats of the village Chak Guru in Tahsil Nawanshahr.

5. There was no allegation, much less was there any proof, that the alleged adoption of the defendant by Khushala was a formal adoption or anything different from the customary appointment of an heir. The learned Senior Subordinate Judge also has not based his decision on a finding that the particular adoption was a formal adoption such as has the effect of making the adoptee a male lineal descendant of the adopter within the meaning of Section 59, Punjab Tenancy Act. The judgment of the Full Bench of the High Court of Lahore in Sabha Chand and Ors. v. Paira Lal A.I.R. 1930 Lah. 764 . lays down that only a son formally adopted can be regarded as a male lineal descendant of his adoptive father within the meaning of Section 59(1), Punjab Tenancy Act. It is well-settled that a mere customary adoption or appointment as an heir does not carry with it the right to succeed to the occupancy rights of the adoptor or the appointer. The learned Senior Subordinate Judge seems to take the view that adoptions even amongst agriculturists admittedly governed by custom in the district of Jullundur are to be regarded as formal adoptions within the meaning of Sabha Chand and Ors. v. Piara Lal A.I.R. 1930 Lah. 476 . and must be deemed invariably to carry with them the right to succeed to occupancy righs and in taking this view has placed his reliance particularly on the answer to question No. 73 in Bhai Hotu Singh's Customary Law of Jullundur District.

6. It is well settled that an adoption amongst' agriculturists of the Punjab generally partakes of the nature of the kritrima adoption of the Hindu law and 'creates merely a personal relationship between the adoptor and the adoptee.' It does not transplant the adoptee completely from his natural family into the adoptor's family. The adoptee does not become the grandson of the adoptive father's father and the adoptee's son does not become the grandson of the former's adoptive father. It is, however, quite possible even for an agriculturist to make an adoption manifesting an intention to make a complete change of the family. In such, a case, the adoption may well be regarded as having more extensive implications than an ordinary customary adoption or appointment. There is no evidence at all that at the time of the alleged adoption of the defendant the adoptor mainfested any intention to make such a complete change of the family.

7. As far as the view of the learned Senior Subordinate Judge that an adoption by an agriculturist in the district of Jullundur must by itself and without anything more be regarded as carrying with it all the incidents of a formal adoption is concerned, I find myself wholly unable to accept it.

8. The attention of the learned Senior Sub-ordinate Judge does not appear to have been drawn to the two statements made by the defendant's counsel on 29th August 1944. His first statement ran as follows:

The plaintiff was appointed as a customary heir by Kahan Singh. This is what I mean by adoption.

His second statement ran as follows:

The parties are governed by custom. The adoption of Nirmal Singh by Khushala was a customary adoption.

In view of the clear and unambiguous statements by the defendant's counsel I do not see how it was possible for the learned Senior Subordinate Judge to hold that the adoption of the defendant by Khushala was anything more than a mere customary appointment and carried with it the incidents of a formal adoption. It was presumably in view of these statements that the learned trial Judge in his order, dated 13th August 1945, stated that both the alleged adoptions were admittedly customary appointments. There being no serious dispute as to the incidents of a customary appointment regarding both the pleas raised by the defendant, namely, the in competency of the plaintiff to maintain the suit and the validity of the gift as an acceleration of succession, neither of the parties thought it fit or necessary to lead any evidence on the question of the factum of the adoption although the same had not been admitted by the plaintiff.

9. As regards the implications of the answer to question No. 73 of Hotu Singh's Customary Law, I must confess my utter inability to discover anything therein countenancing the view taken by the learned Senior Subordinate Judge. All that is stated there is that an adopted son inherits exactly in the same way as a natural son. That is true of all customary appointments and similar provisions are to be found in almost all customary laws of the various districts.

10. The statement contained in the answer is certainly not susceptible of the construction placed thereon by the learned Senior Subordinate Judge and cannot justify an inference that an adopted son actually becomes the son of the adoptor for all purposes.

11. There is nothing in the Customary law of the district, which may give rise to an inference that a person adopted otherwise than by means of a formal adoption amongst agriculturists becomes completely transplanted from the natural family into the adoptive family.

12. My attention was drawn by the learned Counsel for the respondent to the answer to question 72 in the Customary law in which it is stated that an adopted son cannot inherit his natural father. That, however, cannot be taken to mean that he loses all connection with the natural family. It will be noticed that in answer to that question it is expressly stated that in the Phillaur and Nawanshahr Tahsils an adopted son does succeed to the property of his natural father if the latter dies without leaving other sons. The parties to the present litigation belong to Nawanshahr Tahsil and it is obvious that at least amongst them, in the absence of a real brother, the adopted son retains the right to succeed even to the property of his natural father. There in two Tahsils the right of an adopted son to succeed to the property of his natural father, in the absence of a real brother, has been recognized.

13. The Customary law of the district does not recognize the right of an adopted son to succeed collaterally in the adoptive family. In the circumstances, I find myself wholly unable to agree with the view taken by the learned Senior Subordinate Judge as to the implications and incidents of an adoption amongst agriculturists generally in the district of Jullundur.

14. The references made by the learned Senior Subordinate Judge to certain provisions of the General Clauses Act are wholly irrelevant and I do not feel any necessity of dealing with them at any length.

15. For the reasons given above, I accept this appeal and setting aside the judgment and the decree of the learned Senior Subordinate Judge, restore that of the learned trial Judge. The appellant shall have his costs of all the Courts.


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