Skip to content


Harnam Singh Vs. Dharam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H156
AppellantHarnam Singh
RespondentDharam Singh and ors.
Cases ReferredBeshen Singh v. Amirphand
Excerpt:
.....in every way like a son. there is nothing to show that he ceased to treat him like that after having made that statement. on 13th november 1934, he executed and registered a deed of adoption clearly and unambiguously manifesting an intention to appoint dharam [singh as his heir. 1894 was referred to and it was held that at best it could be regarded as an authority as to the non existence of the custom of adoption amongst rajputs of laddu got residing in nurpur talqua of una tahsil and that it could in no case be regarded as an authority on the question of custom as governing the rest of the district and rajputs belonging to any other got. 30 and 31 clearly support the defendants' case and so also instances nos. i am accordingly of the opinion that the plaintiff has miserably failed to..........by the deceased and that the adoption was valid according to the custom governing the parties. the learned district judge on an appeal by the plaintiff upheld the decision of the learned trial judge and affirmed the above-noted findings. the plaintiff feeling aggrieved from the decree of the learned district judge has come up in second appeal to this court.4. in so far as the question of limitation is concerned, i do not find it possible to uphold the decision of the learned district judge. the learned judge has hold that it was the duty of the plaintiff to prove that he came to know of the alleged adoption within six years of the institution of the suit he has further held that even though the plaintiff could not be expected to know of the alleged adoption earlier he must have coma to.....
Judgment:

Achhru Ram, J.

1. This is a. second appeal from the decree of the learned District Judge of Hoshiarpur affirming on appeal the decision of a Subordinate Judge dismissing the plaintiff's suit for possession of one-third share in 297 kanals and 4 marlas of land and two houses situate in the village Dholbaha in Hoshiarpur Tehsil.

2. One Paira Singh, a Dadwal Rajput of the village Dholbaha, owned 297 kanals and 4 marlaa of land and two houses situate in the aforesaid village. He died in the year 1942. On his death, a mutation in respect of the land left by him was sanctioned in the name of his nephew Dharam Singh, the son of his deceased brother Devi Singh, as his adopted son.

3. On 27th August 1943 Harnam Singh, another brother of the deceased Piara Singh, brought a suit for possession of one third share in the property left by him, alleging that Dharam Singh-who was impleaded as defendant 1 had never been adopted by the deceased, that the custom of adoption was not recognised in the tribe to which the parties belonged, and that the suit property being anctstral the adoption which was opposed to the custom applicable to the parties could not affect the plaintiff's right to succeed to a one-third share in the property left by the deceased. Defendants 2 to 5 were other sons of Devi Singh while defendant 6 was the widow of Mayya Ram, a third brother of Piara Singh. The suit was dismissed by the learned trial Judge on the ground that it was barred by limitation, that Dharam Singh had in fact been adopted by the deceased and that the adoption was valid according to the custom governing the parties. The learned District Judge on an appeal by the plaintiff upheld the decision of the learned trial Judge and affirmed the above-noted findings. The plaintiff feeling aggrieved from the decree of the learned District Judge has come up in second appeal to this Court.

4. In so far as the question of limitation is concerned, I do not find it possible to uphold the decision of the learned District Judge. The learned Judge has hold that it was the duty of the plaintiff to prove that he came to know of the alleged adoption within six years of the institution of the suit He has further held that even though the plaintiff could not be expected to know of the alleged adoption earlier he must have coma to know about it on 13th November 1934 when a deed of adoption was executed and registered by the eeeased. In Ghulam Muhammad and Ors. v. Mirza and Mt. Roshnai A.I.R.1925 Lah.25 a Division Bench of the High Court of Lahore in dealing with a similar case held that there was no duty cast on the reversioners to search the registers kept in the Registration Department and that the mere fact of registration of a deed of adoption could not be held to be constructive notice to them. It was further held that as it could not be held that the suit was prima facie barred by time the onus was upon the defendants to prove that the plaintiffs had knowledge of the adoption more than six years before the suit.

5. Their Lordships also held that the language of Article 118, Limitation Act, which was claimed to be applicable to the Case which they had to decide and that of Article 3 of Punjab Act (I [1] of 1920) being identical it made no difference at all to their decision whether the case was held to be governed by one or the other provision of law. This judgment seems to me to be on all fours with the facts of the present case. The learned District Judge, therefore, was not light in holding that 13th November 1934 should be regarded as the terminus a quo for the purpose of limitation merely on the ground of a deed of adoption having been executed and registered on that day. The contesting defendant having failed to prove that the plaintiff came to know of his claim as the adopted son of Piara Singh more than six years prior to the institution of the suit, I am of the opinion that the suit cannot be held to be barred by limitation.

6. As regards the factum of adoption there can be little doubt. In a statement made by Piara Singh on 22nd June 1925 (copy Ex. P. 7) it was expressly stated by him that Dharam Singh was living with him and had been and was being brought up by him, and that it was he who was making arrangements for his education and otherwise looking after him. Ali this shows that although, as stated by him in another part of the same statement, Piara Singh had yet BO intention of appointing Dharam Singh as his heir ho was treating him in every way like a son. There is nothing to show that he ceased to treat him like that after having made that statement. On 13th November 1934, he executed and registered a deed of adoption clearly and unambiguously manifesting an intention to appoint Dharam [Singh as his heir. There is abundant authority If or the view that a registered deed of adoption coupled with previous or subsequent treatment as a son constitutes sufficient evidence of adoption. In the circumstances I see no reason at all to differ from the concurrent findings of the two Courts below on the question of the factum of adoption.

7. As regards the question whether there is any custom in the parties' tribe permitting adoption, again I see no reason to differ from the conclusion reached by the two Courts below. The learned Counsel for the appellant relies mainly on the judgment of the Punjab Chief Court in Bishen Singh v. Amir Ghund 13 P.R.1894) and on the admission of Piara Singh himself in his statement dated 22nd June 1925 referred to above as to the nonexistence of any custom sanctioning adoption in his tribe.

8. In so far as the judgment in Bishen Singh v. Amir Chand 13 P.R.1894 is concerned, the case related to Laddu Rajputs of Una Tahsil. The following observations made at P. 28 of the report show that the case had some very peculiar features which must to some extent have influenced the decision of the learned Judges of the Chief Court:

It is not a matter for surprise that these Hindu Rajputs, who are of course exogamous although Hindus, should not recognize the practice, and that the record of custom, which says that it is absolutely unknown, should be correct. This is not an uncommon being it would appear. The learned Senior Judge, in his judgment in the Full Bench ruling above cited, notices that the custom of adoption is denied by both Hindu and Muhammadan Rajpuis in the Ludhiaua District, and also by certain Rajputs of the Amritsar District. Moreover, as we have already found, the appointment of an heir to a childless proprietor is provided for m his family without having recourse to adoption. The practice would thus be in a way superfluous.

9. Reliance was chiefly placed by the learned Judges on the entry in the riwaj-i-am of 1869.

10. It seems that the aforesaid riwaj-i-am recognised the existence of the custom of adoption among Rajput male proprietors in seven taluqaa of the Una Tehsil but not in the other three taluqas, of which one was Nurpur. Tne parties to the case just referred to belonged to Nurpur Taluqa. In Pohlo v. Nauivardhan A.I.R.1925 Lah.206) a Division Bench of the High Court of Lahore held that there was no warrant for the proposition that the Rajputs of Hoshiarpur District were not, in the matter of adoption, governed by the general Customary Law of the Province, according to which a son less male proprietor could appoint any one of his agnates as his heir. The judgment in Beshen Singh v. Amirphand 13 P.R.1894 was referred to and it was held that at best it could be regarded as an authority as to the non existence of the custom of adoption amongst Rajputs of Laddu got residing in Nurpur Talqua of Una Tahsil and that it could in no case be regarded as an authority on the question of custom as governing the rest of the District and Rajputs belonging to any other got.

11. In the answer to question 61 as contained in the Customary Law of the District of Hoshiarpur compiled in 1913-14, it is stated that Rajputs of Tahsil Garhshankar, Gujars of Tahsil Hoshiarpur and Garhshankar, Pathans, Dogars, Seyids and Sheikhs state that among them there is no cuatom authorizing adoption, but that among other tribes generally a man can only adopt if he has no lineal male descendants. It will thus be observed that only the Rajputs of Garhshankar Tehsil claimed that the custom of adoption did not prevail amongst them. There was no such claim put forward on behalf of Rajputs belonging to any other part of the district. Even with regard to the Rajputs of Garhshankar Tehsil tie note of the compiler of the Customary Law is that the denial by them as to the custom of adoption was not borne out by the instances.

12. So far as Rajputs of Hoshiarpur Tehsil are concerned, at p. 152 of the Manual of Customary Law instances Nos. 30 and 31 clearly support the defendants' case and so also instances Nos. 231 and 232 quoted at p. 178 of the same book.

13. The general custom of the Province is embodied in Para 35 of Rattigan's Digest of Customary Law. It is stated in that paragraph that in the central and the eastern districts of the Punjab there is a presumption in favour of the existence of the power to appoint a kinsman as an heir.

14. No instances have been cited in the present case by the plaintiff in support of his contention that his tribe does not recognise the power of adoption. I am accordingly of the opinion that the plaintiff has miserably failed to prove any special custom governing his tribe in consistent with the general custom of the Province.

15. For the reasons given above, the appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //