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Data Ram and anr. Vs. Teja Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 679 of 1953
Judge
Reported inAIR1959P& H428
ActsSpecific Relief Act, 1877 - Sections 39
AppellantData Ram and anr.
RespondentTeja Singh and anr.
Appellant Advocate Ganga Parshad, Adv.
Respondent Advocate Shamair Chand and; P.C. Jain, Advs.
Cases ReferredSee Gainda v. Mt. Jai Devi
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....ordergrover, j. 1. in order to appreciate the dispute between the parties a reference to the following pedigreetable would be useful. there seems to be a mistake inthe pedigree-table set out in the judgment of the trial court. it is admitted before me by the counsel for the parties that the correct pedigree-table would be as follows: kanwar ____________|_____________ | | shibu hira __________|__________ | | jaswant data ram | sunder singh=mst. dakhan (widow) | girja singh (brother of mst. dakhan).on 28th september 1948 data ram adopted girja singh, who admittedly was not a kinsman of data ram. on 28th september 1950 mst. dakhan and data ram gifted the land in dispute to girja singh. the plaintiffs claiming to be the collaterals of data ram and sunder singh filed this suit on 4th october.....
Judgment:
ORDER

Grover, J.

1. In order to appreciate the dispute between the parties a reference to the following pedigreetable would be useful. There seems to be a mistake inthe pedigree-table set out in the judgment of the trial Court. It is admitted before me by the counsel for the parties that the correct pedigree-table would be as follows:

KANWAR

____________|_____________

| |

Shibu Hira

__________|__________

| |

Jaswant Data Ram

|

Sunder Singh=Mst. Dakhan (Widow)

|

Girja Singh (brother of Mst. Dakhan).

On 28th September 1948 Data Ram adopted Girja Singh, who admittedly was not a kinsman of Data Ram. On 28th September 1950 Mst. Dakhan and Data Ram gifted the land in dispute to Girja Singh. The plaintiffs claiming to be the collaterals of Data Ram and Sunder Singh filed this suit on 4th October 1950 for a declaration that the adoption dated 28th September 1948 was invalid according to custom and that the same be set aside. On 11th December 1950 the plaintiffs filed another suit for a declaration that the gift by Data Ram and Mst. Dakhan in favour of Girja Singh was ineffective and not binding on their reversionary rights. Both the suits were consolidated and were disposed of together.

2. As regards adoption, the trial Court found that it had been proved to have taken place but that the adoption was invalid. As the property was not found to be ancestral, it was held that the gift was nothing but an acceleration of succession and that both the suits were barred by time. Consequently the suits were dismissed. The learned Additional District Judge in appeal held that part of the property was ancestral and part of it was non-ancestral.

In the suit relating to adoption he gave a finding that the suit was not barred by time. As regards the adoption or a stranger it was held that according to the riwaj-i-am of Jagadhri Tehsil compiled in the settlement of 1919-20, an adopted son should be amongst the relatives and even amongst relatives the brother's son, grandson and great grandson were to be given preference, and if no collateral was living then any one from the same got could be adopted. The learned Judge came to the conclusion that Girja Singh being a stranger could not have been validly adopted in the presence of nearer relations. He, therefore, granted a declaration to the effect that the adoption of Girja Singh by Data Ram was invalid.

As regards gift, a decree was granted with regard to the khasra numbers which had been found to be ancestral and the suit of the plaintiffs was dismissed with regard to the land which had been found to be non-ancestral. The plaintiffs as well as the defendants have come up in second appeal to this Court, and both the appeals (R. S. As. Nos. 679 and 591 of 1953} will be disposed of by this judgment.

3. The first question that has been raised on behalf of the defendant-appellants in their appeal (R. S. A. No. 679 of 1953) is that the adoption was perfectly valid and the mere fact that Girja Singh was not a kinsman of Data Ram could not make the adoption invalid. The decision of the learned Addl. District Judge is not very clear on the question as to whether the factum of adoption had been proved. It seems, however, that the finding of the trial Court that the adoption had in fact taken place was not questioned, but the validity of adoption wasattacked. The question of consent of the collaterals having been obtained was also considered by Mm and he came to the conclusion that consent had not been proved.

Before me the factum of adoption has not been disputed on behalf of the plaintiffs. The only question, therefore, that has to be decided is the validity of such an adoption as was made in the present case. According to para 35 of Rattigan's Digest of Customary Law, a soiltess proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir. The riwaj-i-am of Jagadhri Tehsil, Exhibit P-11, has already been referred to which confines the adoption to relatives and particularises the relatives who should be given preference. Question 59 of the Customary Law of the Ambala District compiled by Whitehead is in the following terms:

'Question 59.--Is it necessary that the person adopted should be related to the person adopting? If so, what relatives may be adopted; and what relatives have the preference? Is it necessary that the parties should be of the same tribe, or of the same got?'

The answers given to the above question at the settlements of 1887, and 1918 are set out below:--

'1887.-- The general sense of the replies is that an adoption must, if possible, be from the near collaterals. Failing them, a daughter's son or sister's son may be chosen, but with these exceptions Hindu tribes rarely adopt, except from their own got and no tribes recognise adoption from an outside tribe. Muhammadans in general pay less attention to got than Hindus. Numerous cases are however quoted by Jats of Rupar where the adopted son belonged to a different family or got, and in Narain-garh an instance is given of the adoption of an outsider in preference to a collateral being upheld by legal decision. This is a good instance of the difficulties surrounding the whole question of adoption. The general feeling of the country is clear enough, but the customs are not sharply defined, and the intricacies of the law open out a wide field for useless litigation.

1918.--In practice the order of succession is followed and only near collaterals are adopted: failing them a daughter's or sister's son may be chosen. Breaches of this rule are very rare and must be treated as exceptions to custom.'

It is noteworthy that the answers in the settlement of 1887 show a departure from the rule that the adoption must, if possible, be from the wear collaterals--a daughter's sun or a sister's son could be chosen. Numerous cases are stated to have been quoted by Jats of Rupar where the adopted son belonged to a different family or got, and a Naraingarh instance is stated to have been given of adoption of an outsider in preference to a collateral which was upheld.

In 1918 it was stated that only near collaterals were adopted; failing them a daughter's son or a sister's son and that the breaches of this rule were rare. In support of the view that such statements in riwaj-i-am that adoption should be made from amongst the near collaterals are merely directory and not mandatory, reliance has been placed by Mr. Ganga Parshad on behalf of the defendant appellants on Hem Singh v. Harnam Singh, AIR 1954 S.C. 581.

In that case it has been laid down by their Lordships that under the Customary Law in the Punjab adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid. In para 6 of the judgment reference was made to paras 35 and 36 ofRattigan's Digest of Customary Law. Then their Lordships made the following observations:

'It appears to us that the basic idea underlying a customary adoption prevalent in the Punjab is the appointment of an Heir to the adopter with a view to associate him in his agricultural pursuits and family affairs. The object is to confer a personal benefit upon a kinsman from the secular point of view unlike the adoption under the Hindu Law where the primary consideration in the mind of the adopter it a male is to derive spiritual benefit and if a female, to confer such benefit upon her husband. That is why no emphasis is laid on any ceremonies and great latitude is allowed to the adopter in the matter of selection, Mulla in his well-known work on Hindu Law says:

'It has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory; therefore, the adoption of an only son, or a stranger in preference to a relation if completed, is not invalid. In cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding.' We see no reason why a declaration in a 'Riwaj-i-am should be treated differently and the text of the answer should not be taken to be directory. However peremptory may be the language used in the answers given by the narrators of the custom, the dominant intention, underlying their declarations which is to confer a temporal benefit upon one's kinsmen should not be lost sight of.'

Counsel for both the parties rely on these observations in support of their respective contentions. It is urged by Mr. Ganga Parshad that their Lordships approved of the rule laid down by Mulla with regard to Hindu adoptions that texts which enjoin adoption of a relation in preference to a stranger are only directory and that the same rule has been approved with regard to the statement in a Riwaj-i-am.

At the same time Mr. Shamair Chand relies on the emphasis laid by their Lordships on the object of an appointment of an heir by agriculturists, the object being to confer a personal benefit upon a kinsman. This, he says, is in accord with the general custom contained in para 35 of Rattigan's Digest, and he submits that although preferences as regards age or degree of relationship of the adoptee may be merely directory but since the whole basis of agricultural custom is to confine the property to kinsmen, the adoptee must be a kinsman and a total stranger cannot be appointed. Mr. Shamair Chand has invited my attention to Moman v. Mt. Dhanni, ILR 1 Lah 31: (AIR 1920 Lah 415) in which Broadway J. held that the onus of proving that the adoption of a stranger is valid by custom rests on the adopted child which has to be discharged by him. In that case it was observed at p. 33 (of ILR): (at p. 416 of AIR) as follows:

'The question still remains, however, whether a custom has been established by which Jats of Bangraon, Tehsil Fatehabad, in the District of Hissar, may adopt strangers. As pointed out at page 54 of Rattigan's Digest of Customary Law, the appointment of a person of a different got is generally op-nosed to custom and in paragraph 37(b) the same learned author points out that amongst agriculturists, especially in the eastern districts of the Punjab, such appointments are not now favoured and are to be presumed to be invalid.

There seems, therefore, no doubt at all that the general custom is against the validity of the adoption of Bega by Uda and that therefore the onus rests on him to prove that there is a custom existingamongst Jats in his village validating his adoption'.

In Jowala v. Dewan Singh 166 Ind Cas 237: (AIR 1936 Lah 237), Tek Chand J., had occasion to consider a case where a remoter collateral had been adopted in the presence of a nearer collateral. The Vernacular riwaj-i-am of Nakodar Tehsil contained the following answer of Hindu Jats on the point:

'As a general rule, first, the sons of the real brothers are adopted. In their absence the remote collaterals having regard for nearness are adopted. It cannot be that a remote relation be adopted to the exclusion of a near relation's son. In case a near relation refused, the son of a remote relation is adopted, but the adopter and the adoptee should be of one and the same tribe, with the condition that the adoptee and the adoptive father should be of one and the same got,'

It was held that the entry in the riwaj-i-am was not mandatory but was directory. This means that the entire entry was held to be directory and not any particular part of it. Similarly, in the case decided by their Lordships of the Supreme Court referred to before, there is a discussion of a number of decisions of the Lahore High Court in which the entries in the riwaj-i-am as to the persons who can be adopted were held to be merely indicatory' and that view was adopted by their Lordships themselves. But the person who had been adopted in Hem Singh's case was a collateral in the eighth degree; therefore, he was still a kinsman of the adopter.

If the general rule of custom laid down in para 35 of Rattigan's Digest is to be followed, then only a kinsman can be appointed an heir or taken in adoption. If, however, the entries in the riwaj-i-am with regard to the persons who can be adopted or not are to be taken as merely indicatory or directory and not mandatory, then the question at once arises as to whether the statement contained in para 35 of Rattigan's Digest confining the appointee to kinsmen should be taken to be mandatory or directory. If the rule which has been adopted with regard to the texts in Hindu Law is to be adopted, as seems to be the trend of the observations contained in Hem Singh's case AIR 1954 SC 581 then it will have to be held that such a restriction is merely directory and cannot be treated as mandatory. This matter, however, is not free from difficulty and is one which is likely to arise in a number of cases. I consider, therefore, that it would be proper if the aforesaid point is decided by a larger Bench.

4. The other point that has been raised by Mr. Ganga Parshad relates to the question of limitation. It has been urged that the view of the trial Court that the suit is barred by limitation was correct and that the learned Additional District Judge committed an error in holding that the suit was within time. The question of limitation in the present case depends entirely on appreciation of evidence with regard to the point of time when Girja Singh was adopted. The finding given by the learned Additional District Judge is based on evidence and no error of law has been shown to me. It must, therefore, be held that the suit was within time,

5. In the appeal filed on behalf of Teja and Munshi (R. S. A. No. 591 of 1953) the only point that has been raised by Mr. Shamair Chand on behalf of the appellants is that the gift made by Mst. Dakhan even of a non-ancestral property was altogether invalid and ineffective. He contends that it was not open to the widow of Sundar Singh to alienate even non-ancestral property and therefore the gift made by her with regard to the property to which she had succeeded as a widow of Sundar Singh was altogether invalid. Mr. Ganga Parshad, on behalf of the defendants, has relied on the change oflaw that has taken place by virtue of the provisions of Sections 14 and 15 of the Hindu Succession Act.

He has drawn ray attention to Baijnath v. Ramautar, AIR 1958 Pat 227, according to which on the enactment of the Hindu Succession Act by virtue of Sections 14 and 15 the heirs of a deceased husband have no vested interest in the property nor any right of reversion nor any kind of spes successionis. The reversioners have therefore no locus standi to bring a suit for declaration that the alienation by a widow being without legal necessity was not binding on them. It is contended that the plaintiffs who are the reversioners have no locus standi to maintain the present suit owing to the legislative changes which have supervened. In Mt. Prito v. Gurdas, 60 Pun LR 194, Tek Chand J. had occasion to consider this matter.

According to his decision the right of reversion being relative, and not absolute, can exist only so long as law recognises a limited estate, on the expiration of which, the inchoate rights of the reversioner mature and become effective. A reversionary interest arises by operation of law when a particular estate is carved out of larger estate. The reversionary rights being of a residuary nature, spring on the extinction of the smaller estate, but when by operation of law, the particular rights are enlarged into absolute right, there are left no deferred rights which can revert.

The logical effect of the Provisions of Sections 14 and 15 of the Hindu Succession Act is that with the conversion of a limited estate into an absolute estate reversionary rights stand abrogated. In an earlier Bench decision of this Court in Hari Kishan v. Hira 59 Pun LR 56: ( (S) AIR 1957 Pun) 89) a distinction was made with regard to cases where a female Hindu had sold and parted with possession of property before the coming into force of the Act. The view adopted in that case is that Section 14 of the Hindu Succession Act contemplates that if at the time the Act came into force a female Hindu was possessed of any property, then she shall hold it in future as full owner.

This provision of law will not restore to her any property or any rights in the property which she had parted with before the Act came into force. A Bench of the Patna High Court, however, in Mt. Janki Kuer v. Chhathu Prasad, (S) AIR 1957 Pat 674, took a contrary view. In the Patna case a contention was raised that as soon as Hindu females had alienated her property, she could not be said to be possessed of that property within the meaning of Section 14 of the Act, and reliance was placed on the Bench decision of this Court as well as certain rulings of other High Courts.

The learned Patna Judges observed that in none of those cases the question had been approached from the view which had been taken by the Patna Court. The view of the Patna Court is that after the coming into force of the Hindu Succession Act there can be no reversioners and therefore any suit by reversioners would not be maintainable. In Hunuman Prasad v. Indrawati, AIR 1958 All 304, however, the view expressed by the Bench of this Court as well as the view of the Patna High Court seem to nave been accepted.

The learned Judges of the Allahabad Court Have come to the conclusion that though the alienation by a Hindu widow made before the passing of the Act is still vulnerable, the widow continues to be estoppled from challenging the validity on the ground of want of legal necessity. But the reversioners have completely disappeared by virtue of the provisions of Section 15. Since there will be no reversioners after the passing of the Act, nobody can get a decree as a reversioner now.

Even those persons who could have obtained a decree before the passing of the Act that an alienation made before the passing of the Act was invalid cannot now get a declaration to that effect because they have lost the status by virtue of which they could get it. The point involved is one of importance and is likely to arise frequently in a number of cases. I consider that it would be proper if there is an authoritative decision by a larger Bench with regard to the rights of the plaintiffs in the present case as reversioners to challenge the gift made by Mst. Dakhan in favour of Girja Singh.

6. I would, therefore, direct that both the appeals be placed before my Lord the Chief Justice for constituting a larger Bench for deciding the same

UDGMENT OF THE DIVISION BENCH

Dua, J.

'(Who after stating the facts continued):

7-10. In Regular Second Appeal No. 679 of 1953 the only question urged before us is as to the validity of the adoption of Girja Singh. Paragraph 35 of Rattigan's Digest lays down that a sonless proprietor or land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir. In paragraph 36 it is laid down that there are no restrictions as regards the age or the degree or relationship of the person to be appointed Paragraph 37 lays down that in certain cases a daughters or a sister's son is considered to be proper person to be adopted and in paragraph 38 the adoption of the eldest or the only son is considered permissible. The Customary Law of the Ambala District deals with the question of adoption as follows:

(His Lordship quoted question 59 and the answers given in 1887 and 1918 for which see the Order of Reference, para 3 and continued): it is worthy of note that the answer given in 1887 is very elaborate and numerous cases are quoted by Jats of Rupar where the adoptees belonged to different family or got and in Naraingarh an instance has been given of the adoption even of an outsider in preference to a collateral having actually been upheld by a Court of Law. This answer does not in my opinion, establish a cleat cut, certain and universally recognised rule of custom as is now being relied upon by the respondents. In 1918 it is very briefly stated that in practice the order of succession is followed. It is then noted that breaches of this rule are very rare and must be treated as exceptions to custom.

This answer also does not seem to me to materially advance the respondents' case; it certainly does not clearly establish that the custom had in the intervening period since 1887 undergone any substantial change. It there have been instances of adoption of persons who are not related to the adopter as was stated in 1887 or if breaches of the rule, however few, have been committed though they may have been considered as exceptions, then it is a question to be considered whether the custom of adopting only near relatives of the adopter has been proved to be certain, universal and Well-established and whether the suggested rule is mandatory, particularly when the daughters son and sister's son are also expressly mentioned to be eligible for adoption.

11. The learned counsel for the appellant has argued that the entries in the riwaj-i-am as to the persons who can be adopted are merely directory or recommendatory and not mandatory. He submits that if the power to adopt is conferred on a person, then the restrictions imposed on him in the selection of the adoptee should be considered to be merely indicatory and not mandatory. In support of his submission he has referred to a number of decisions In AIR 1936 Lah. 237, Tek Chand J. in dealing with the entry in the answer to question No. 69 ofthe riwaj-i-am of Jullundur District published in 1918 observed as follows :--

'The question here is not one as to the quantum of evidence necessary to rebut a clear entry in the riwaj-i-am, but the real point for decision is the meaning to be given to the entry in the riwaj-i-am. If the entry were held to be mandatory, there can be no question that the evidence produced by the defendants must beheld to be in sufficient to justify a finding that the onus has been discharged. But if the entry is merely indicatory and is to be given the meaning that has been given to similar entries in the riwaj-i-ams of the neighbouring districts. I have no doubt that the decision of the lower Courts is incorrect. After giving the matter careful consideration, I am of opinion that the view taken in the previous rulings of the Chief Court and this Court must be followed and the entry held to be merely indicatory. I hold that the adoption of Jowala by Devi Ditta was valid by custom and that the plaintiffs' suit has been wrongly decreed'.

In that case Devi Ditta, a Jat of Jullundur district, had adopted as his son Jowalal who was this collateral in the 4th degree. The plaintiffs who were related to Devi Ditta in the 3rd degree instituted a suit for a declaration that the adoption of Jowala was invalid under the custom prevailing in the tribe and reliance was placed on the entry in the riwaj-i-am of Jullundur district as stated above.

The learned Judge in his judgment relied on earlier decisions of the Punjab dealing with similar entries in the Customary Laws of other districts and observed that the entry in question was indicatory and not mandatory. The counsel next relied on Basant Singh v. Brij Raj Saran Singh, a decision of their Lordships of the Privy Council reported as AIR 1935 PC 132,

In this case an orphan from a different got than that of the adopter was adopted and his adoption was challenged on the ground that the parties were governed by the Customary Law of Delhi district according to which the adoptee, who was both an orphan and not of the same got as the adopter, could not be validly adopted. Their Lordships while dealing with this aspect observed as follows:

'Accordingly, their Lordships are of opinion that the respondents have established that the Customary Law applied to Khushal Singh when he left the Delhi District in 1858. But the appellants maintain that the adoption of defendant 1 was invalid in that it did not comply with the Customary Law in two respects, viz., that defendant was an orphan, and that he was not of the same gotra as Khushal Singh either of which would invalidate the adoption.

The reason that under the Mitakshara law, an orphan cannot be adopted is because a boy can be given in adoption only by his father or his mother, and such giving is an essential part of the ceremonies, but answer 87 in the 1911 manual does not prescribe such 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 clear that the conditions of adoption under the Mitakshara 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 of the adoption of an orphan beyond question.

'It is admitted that defendant 1 does not belong to the same gotra as Khushal Singh, and the appellants found on answer 174 in riwaj-i-am of 1880. No such restriction is suggested in the manual of 1911. But answer 174 of 1880 appears to make clear, by the second example in the column of particulars, that it is only a recommendation that they should be of the same gotra, and that a person of a different gotra may be adopted; in other words, factum valet. Their Lordships are therefore of opinion, on the whole matter, that the adoption of defendant 1 was valid, and that the appellants' appeal fails',

12. The counsel next referred us to a decision of the Supreme Court, AIR 1954 SC 581. Their Lordships in this case while dealing directly with the question of adoption under the Customary Law in the Punjab, very clearly observed that the provision that the right of selection rests with the person adopting, also detracts from the mandatory nature of the limitation imposed upon the degree of relationship. In para 7 of the judgment at page 583 of the report, their Lordships quoted Mufla in his well-known work on Hindu Law which says:

'It has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory; therefore, the adoption of an only son, or a stranger in preference to a relation, if completed, is not invalid. In cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding.' (p. 541).

Their Lordships approved of this passage and proceeded:

'We see no reason why a declaration in a 'riwaj-i-am' should be treated differently and the text of the answer should riot be taken to be directory.'

After making a reference to a number of cases, their Lordships in the end observed as follows:

'Whether a particular rule recorded in the 'riwaj-i-am' is mandatory or directory must depend on what is the essential characteristic of the custom. Under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have, therefore, been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand, under the Customary Law in the Punjab, adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid'.

13. The learned counsel then made a reference to Sections 4 and 10 of the Hindu Adoptions and Maintenance Act (No. 78 of 1956). These two sections are set down below:

'4. Save as otherwise expressly provided in this Act,--

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

( b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

10. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely,--

(i) he or she is Hindu;

(ii) he or she has not already been adopted;

(iii) He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption,

(iv) he or she has not completed the age o fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption'.

The argument is that the Hindu Adoption and Maintenance Act has an overriding effect and lays down the law of universal application as to the personswho are capable of being taken in adoption and even a female can according to the present law be adopted. My attention has also been drawn to theobservations, in some decided cases, that Customary Law is a branch of Sociology and must be in a fluid state and take cognizance of progress of ethical and legal notions in the society. In Daya Ram v. Sohel Singh 110 Pun Re 1908 (FB), Chatterji J. observed as follows:

'We must also recognise that Customary Law, like other law, is a branch of sociology and must be in a fluid state and take cognizance of progress of eithical and legal notions in the community in which it is in force.'

14. This quotation was quoted with approval in a Division Bench decision in Mt. Jco v. UjagarSingh, 55 Pun LR 1: (AIR 1953 Punj 177). It is true that in that case the question which came up for consideration was the right of sister to succeed to the non-ancestral property as against collaterals but while dealing with the question of custom, their Lordships approved the observations of Chatterji J. in 110 Pun Re 1906 (FB), and held in favour of sister's right to succeed in preference to collaterals in view inter alia of the change in the ethical and legal notions in the community. Relying on the observations of Chatterji J. the counsel in the instance case also submitted that what the persons represented in 1887 or in 1918 before the officers enquiring into the custom should not be the basis for deciding the questions relating to the power of adoption today--about half a century later. It is further submitted that the change in the legal and ethical notions of the community has been recognised even by the Tarliament by enacting the provisions of the Hindu Adoption and Maintenance Act mentioned above.

15. As against this the learned counsel for therespondents has submitted that although the rule regarding degree of relationship may be directory, the adoptee must nevertheless Be a kinsman of the adopter. Reliance in this connection has been placed on Kassu v. Rahim Bakhsh, reported as 120 Pun Re 1884 and Pakhar v. Natha, 156 Pun Re 1890,where adoption of wife's kinsman in the one case and wife's brother's son in the other was held invalid. It may however be mentioned that in 156 Pun Re 1890, the learned Judges were mainly influencedby the consideration that to allow anyone to be adopted as a matter of course would be inconsistentwith the principles on which the tribal society of the Jat villages was constituted.

As discussed above and as I would discuss hereafter, these considerations are wholly out of place in the present set-up of our society. Mr. Shamair Chand has also relied on Jholi v. Khazana, ILR 8 Lah 48: (AIR 1926 Lah 654), in which the adoption of a pichhlag's son was declared invalid on the ground that that adoptee was of a different got. The learned counsel ' has further contended that the entry in the riwaj-i-am of Jagadhri is also against the appellant and, therefore, in the absence of any instances to the contrary the adoption in 'disputeshould be held to be invalid.

16. After giving my most anxious consideration to the matter I am of the opinion that the decision of their Lordships of the Privy Council in Basant Singh's case, AIR 1935 PC 132 has finally settled the question against the contention of the learned counsel for the respondents that the adoptee must necessarily be of the same got as the adopter. It has been expressly held by the Judicial Committee that such a provision is only recommendatory and the rule of factum valet would be properly attracted even where the adopter's Choice has gone outside his own got. The observations of their Lordships of the Supreme Court in Hem Singh's case, AIR 1954 SC 581 also seem to lend support to this view.

17. Once the power to adopt is conferred on a person, in my opinion the matter of choice, whether it relates to the question of degree of relationship or of the adoptee being, a kinsman of the adoptor or belonging to a particular got, caste or creed, is certainly a matter, the regulation of which should not, generally speaking, be considered to be mandatory.

This matter of choice depends on various considerations of detail which the adoptor alone can weigh and determine. Mr. Shamair Chand, learned counsel for the respondents, has in fact conceded that the question relating to degree of relationship is indicatory but he submits that rule of the adoptee being a kinsman is mandatory. I must confess that I have not been able to understand the principle on which this distinction can be sought to be maintained in the present set-up. If the choice is given to the adoptive father to select his adoptee for the purposes of appointing him as an heir, who should be really and effectually helpful to him in his business or other avocation in life, I see no logical justification based on any sound principle of law or any other compelling reason as to why his selection should be confined within the limits of his kinsmen.

18. Besides, the vital changes which our social and community life has undergone during the last 20 years, and specially during the last ten years or so, do warrant a new approach to the provisions of the Customary Law, particularly those relating to adoption, marriage, women's right to property and restrictions on power of alienation etc. The old conservative agnatic theory and the considerations of narrow minded reactionary tribal society in more or less isolated self-sufficient villages have, in the present set up, lost much of their sanctity, importance and usefulness. Our present social or community life has out-lived those static ideas and conceptions of the nineteenth or even of the early twentieth century. Sociology is roughly speaking, synonymous with 'social welfare', 'social science' or 'social justice'. Customary Law as a branch of sociology, therefore, must reflect the social conditions of the times as they actually exist.

It is no doubt unfortunate that no enquiry should have been held into the state of the custom in dispute after 1918, to prove its continuous use. Since the commencement of the Constitution of India, however, the omission to enquire into the existence of such customs may well be due to the fact that now the State is expected to endeavour fo secure for the citizens a uniform Civil Code throughout the territory of India and in fact we find that in 1956 the new Act dealing with adoption has actually been enforced.

But be that as it may, the language of the questions and answers in the riwaj-i-am, the decisions of the Privy Council and of the Supreme Court, and the general considerations discussed above clearly show that the adoption of an outsider as such is not necessarily invalid. For all these reasons I am clearly of the opinion that the prohibition against adoption outside the 'got' or the tribe is not mandatory but: only recommendatory or directory and that the adoption of a stranger is not invalid merely because he does not belong to the same 'got' as that of the adopter.

19. Before concluding I might also observe that after all, the present suit was merely for a declaration and a declaration, as is well-known, is a discretionary relief. Data Ram died on the 25th of January 1958 and ever since the adoption, which took place ten years earlier in 1948, he has been treating the adoptee as his validly adopted son. In 1956 while as yet Data Ram was alive the Hindu Adoption and Maintenance Act came into force. Under this Act it is not disputed that Data Ram could have validly adopted Girja Singh.

As is well-known customary appointment of heir does not require performance of any religious ceremonies and it is not without significance that Data Ram actually continued, till his death, to treat Girja Singh as his adopted son. In this view of the matter also I am inclined to hold that the rule of factum valet is fully applicable to the instant case and this Court should not grant the discretionary relief of declaration to the plaintiff. The appeal being a rehearing it is legitimate for us to take into consideration these aspects while deciding this question,

20. There is still another way of looking at this dispute with respect to non-ancestral property. The customary appointment of heir has also been held, in most essential features to resemble a gift, the only principal difference being that in the case of a gift the property passes immediately to the donee whereas in the case of appointment of heir, the property does not vest in the appointed heir till the death of the adoptive father. See Gainda v. Mt. Jai Devi, ILR (1944) Lah 519: (AIR 1944 Lah 90) (FB). Gift of non-ancestral property cannot be challenged by the collaterals at all because, as such, they nave no interest in the acquired property and, therefore, no right to control its alienation etc. With respect to such property of Data Ram, therefore, the collaterals had absolutely no locus standi to challenge the right of Girja Singh to get such property by virtue of being in fact an adoptee of or a donee from the deceased.

21. In view of what has been stated above, I am of the opinion that this, appeal must succeed and the plaintiffs' suit for a declaration that the adoption is invalid must be dismissed. In the peculiar circumstances of this case, however, there will be no order as to costs.

22. In the other appeal (Regular Second Appeal No. 591 of 1953) a suit was filed by the same collaterals to have the gift dated the 28th of September, 1948 set aside. In view of the decision in Regular Second Appeal No. 679 of 1953 this appeal must fail. Data Ram and Mst. Dakhan both had gifted the land in suit to Girja Singh. If he is the validly adopted son as held in the connected appeal, then there can hardly be any valid ground on which this gift can be assailed and indeed Mr. Shamair Chand has frankly conceded this proposition.

A part of the property has been declared to be non-ancestral and with respect to such property there can certainly be no locus standi in the plaintiffs to attack the gift. However, as I have held in the connected appeal that the adoption is good and valid, I think that the gift must be upheld, being to a validly adopted son who is thus also the next heir. The collateral's appeal, therefore, fails and is hereby dismissed. There will be noorders as to costs in this appeal as well. There are also cross-objections filed by Data Ram etc. in this appeal which must, for the reasons given above, be allowed but without any order as to costs.

Falshaw, J.

23. I agree.


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