D.S. Tewatia, J.
1. The admitting Judge admitted this Regular Second Appeal to the Division Bench as according to him a single bench decision of this Court reported as Modan Singh v. Sham Kaur, 1972 Cur LJ 210: (AIR 1973 Punj & Har 122), on which reliance has been placed by the Courts below, needed reconsideration. That is how this second appeal is before us.
2. The short question that falls for consideration is as to whether a purported deed of adoption failing as such deed could be given effect to as a will. Before proceeding to notice the rival contentions advanced at the bar, it would be necessary to know the contents of the document which when rendered in English, reads as under:-
'I, Rehmat Ali son of Nawaz Ali, Caste Shekh Khureshi, am resident of Village Sahal Tehsil Rajpura. I am all alone in this old age having no issues neither a son or a daughter and I have no wife also. Rather I am unmarried. About 20 years back I had taken in my lap as my adopted son Shaffi son of Nathu Caste Teli, resident of Village Lochawa Tehsil Rajpura when he was a child of 10 years with the consent of his parents and he is being maintained and living with me from that day, as my adopted son and has been rendering service to me. Rather about 9 years back I had performed marriage of Shaffi and said shafi and his wife rendering service to me from the date of marriage as a son and daughter in 'law. In view of the above said circumstances said Shaffi is my heir and successor as my adopted son. As adoption was not formally reduced to writing and keeping in view the uncertainty of time, I want to pronounce the above said adoption openly in order to compensate for the services rendered, having in view that after my death above said Shaffi may not be confronted with any difficulty in securing my property. I am in all my senses and without any pressure or influence of my own free will through this adoption, agree in writing that said Shaffi is rendering services to me for the last 20 years as my adotped son. He has been living with me and having been maintained by me and his marriage was also performed by me about nine years back. From the date of marriage along with his wife has been rendering services to me. He is my adopted son and has as adopted son, the same rights as a natural son said Shafi will perform all ceremonies after my death and will succeed me as a natural son i.e. said Shaffi my adopted son will be my sole successor therefore, I am executing the adoption deed so that it may be useful at the proper time. I have heard and understood this deed and it is acceptable to me. As I did not migrate to Pakistan at the time of partition of the country nor I have any intention to migrate rather I am continuously in cultivating possession of my cultivable land and residential house situated in village Sahal, therefore, I have a right to make an adoption. dated: 10-9-1958 Thumb marked by Rehmat Ali Adoptive father, Shaffi adopted son Thumb marked'.
3. Both the Courts below came to the conclusion that in view of Modan Singh's case (AIR 1973 Punj & Har 122) (supra), the document in question could not be given effect to as a will. The law on the point is enunciated by a Division Bench of Lahore High Court in Sant Singh v. Sadda, 1912 Punj Re 63 (Case No. 21) observing that as to whether a given document which purports to be a document of adoption when failing as such could be given effect to as a will would depend on what is stated therein and the attending circumstances. To the same effect is another bench judgment of the Lahore High Court in Shib Singh v. Subha Singh, AIR 1935 Lah 658, A Full Bench decision of this Court in Ranjit Singh v. Garja Singh, 1967 CLG (Punj & Har) 628: (AIR 1968 Punj 37 has put a seal of authority on the above view and the following observations of Mehar Singh, C.J. as he then was, can be noticed with advantage:
'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, if such a conclusion is available, the alleged adopted son takes the property'.
4. Koshal,J. in Modan Singh's case (supra) distinguished Privy Council decision reported as Krishna Rao v. Sundara Siva Rao, AIR 1931 P. C. 109, by observing that:
'The executant of deed Exhibit D.1 was an illiterate Jat who presumably never knew what the legal requirements of a valid adoption were and who contended himself with just writing out a deed of adoption in the belief that it was good enough to clothe Modan Singh defendant No. 1 with the status of an adopted son which, however, has not turned out to be the case'.
In Modan Singh's case (Air 1973 Punj & Har 122) (supra), the relevant recital in the deed is in the following terms:--
'I, therefore, in possession of my full senses by writing adoption deed adopt my nephew Modan Singh son of Jangir Singh as a son and from today Modan Singh has been recognised as my natural son. he would perform all religious rites after my death, would be the owner of my property of every kind from generation to generation and no will have any objection to this. Jangir Singh consents to the making to adoption by me'.
Since the Courts below were of the view that the relevant recital in the adoption deed before them was somewhat identical to the one above reproduced from Modan Singh's case (supra), Modan Singh's case (supra) squarely covered that case.
5. With respect to the learned Judge, we are of the view that Modan Singh's case (supra) (AIR 1973 Punj & Har 122) does not lay down the correct law. The intention that is to be gathered from a document of the kind is as to whether the executor of the document merely intended it to be an adoption deed, in other words, merely intended to give effect to his desire to adopt a son or he also intended to settle his property upon him after his death.
6. If in an adoption deed the executor of the deed rests content by merely saying that so and so is being adopted by him as his son and shall be his son and after his death shall perform Kriys ceremony like a son and shall also succeed him like a son, then such a deed cannot be construed to be a deed whereby executor intended to make a testamentary disposition of the property in favour of the adopted son after his death by mentioning that after his death he shall succeed like a natural son, he merely spells out one of the consequences of adoption that he was making but if, on the other hand, the executor of the deed specifically mentions that the said adopted son shall inherit his property, then such a document where adoption fails has to be construed as a document effecting testamentary disposition of the property in favour of the alleged adopted son. In the present case, a perusal of the document would show that the executor has expressed his intention of bestowing his property on his son with greater surety. This fact is made evident when he got stated in that said deed:
'As adoption was not formally reduced to writing and keeping in view the uncertainty of time, I want to pronounce the above said adoption openly in order to compensate for the services rendered, having in view that after my death above said Shaffi may not be confronted with any difficulty in securing my property'.
In this case, we are clearly of the view that the executor of the document in question clearly intended that after his death his entire property should go to Mohammad Shaffi.
7. Rehmat Ali, executor of the dead, was a Muslim. Under Mohammedan law, adoption is not permitted and, therefore, Rehmat Ali must be knowing that he could not in law adopt a son and, therefore, he must have intended to convey his property to Mohammad Shaffi through that document by clearly expressing himself in the manner he had done. Since a will executed by a Mohammedan does not require any formality in law as there can be an oral will. so no particular form was required to be complied with by Rehmat Ali while making a will of his property. Krishan Rao's case (AIR 1931 PC 109) (supra) is almost on all fours with the present case. In that case the relevant recital reads as under:--
'As I have had no issue I have brought you up while you were young and have adopted you and celebrated your Upanayanam, etc. and have chosen you as a son; so I have communicated this fact to the revenue authorities and got your name registered for the office of the karnam held by me. Further, you shall be my son and you shall be entitled to my entire property as a son'.
Their Lordships referred to underlined portion of that recital and observed that the last sentence of the document clearly referred to succession to the writer's entire property on his death, and has testamentary effect in favour of the person alluded to in the document.
8. For the reasons aforementioned, this Regular Second Appeal is allowed and the judgments and the decrees of the Courts below are set aside, and the suit of the appellant stands decreed as prayed. The parties to bear their own costs throughout.
Surinder Singh, J.
9. I agree.
10. Appeal allowed.