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Lachhmi NaraIn Balu Vs. Ghisa Bihari and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberReview Appln. No. 55 of 1958 in S.A. No. 524 of 1954
Judge
Reported inAIR1960P& H43
ActsCode of Civil Procedure (CPC), 1908 - Order XLVII, Rule 1
AppellantLachhmi NaraIn Balu
RespondentGhisa Bihari and anr.
Cases ReferredData Ram v. Teja Singh
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the 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. - 524 of 1954. the appeal had been filed by lachhmi narain defendant against the concurrent judgments and decrees of the two courts below holding that he had failed to show his adoption to..........at the time of the hearing of the appeal. (2) mr. ram sarup has, in support of his petition for review, submitted that in some cases elating to brahmans of the old delhi territory, in which the village of the appellant was included before 1911, when delhi was created as a separate province, consent of the collaterals of widow's husband was not material if the widow had been given the power to adopt her deceased husband. without deciding whether or not such instances are relevant for the purposes of determining the validity of the adoption in the present case, this contention obviously cannot prevail when i am asked to review my previous decision. as early as 1922 the judicial committee of the privy council in chhajju ram v. neki, ilr 3 lah, 127: (air 1922 pc 112), laid down in.....
Judgment:
ORDER

(1) This is a petition filed by Lachhmi Narain under O. XLVII, R. 1 of the Code of Civil Procedure praying for review of my judgment dated 11-8-1958 in Lachhmi Narain v. Ghisa etc., Regular Second Appeal No. 524 of 1954. The appeal had been filed by Lachhmi Narain defendant against the concurrent judgments and decrees of the two Courts below holding that he had failed to show his adoption to be valid. Mr. Daljit Singh who had appeared on behalf of the appellant-petitioner in Regular Second Appeal No. 524 of 1954 had contended that the entry in the riwaj-i-am as to the person who could be adopted is always construed to be indicatory and not mandatory. In support of his contention, the counsel had relied on Shitab Singh v. Hazari Singh, ILR 7 Lah 117: (AIR 1926 Lah 207) and Jowala v. Dewan Singh, AIR 1936 Lah 237. These two cases were distinguished in the judgment given by me. In AIR 1936 Lah 237 the power of a male to adopt a remoter collateral, although a nearer collateral is in existence, was considered and I was of the opinion that this decision could not help the appellant's counsel in the instant case where the power of a widow to adopt is concerned.

In ILR 7 Lah 117: (AIR 1926 Lah 207) Rajput widow of Gurgaon District was held authorised to adopt one of her husband's male collaterals as her husband's heir and therefore I considered this authority also distinguishable. The view that I took in my decision dated 11-8-1958 was that a widow, normally speaking has no power to adopt under custom and that if such a power is conferred by the entry in Wilson's Tribal Custom for Gurgaon, it must be exercised strictly within the narrow limits circumscribed by the entry itself. The appellant admittedly is not one of the widow's husband's made relatives related through males, as prescribed in the entry in question. No other authority was brought to my notice at the time of the hearing of the appeal.

(2) Mr. Ram Sarup has, in support of his petition for review, submitted that in some cases elating to Brahmans of the old Delhi territory, in which the village of the appellant was included before 1911, when Delhi was created as a separate province, consent of the collaterals of widow's husband was not material if the widow had been given the power to adopt her deceased husband. Without deciding whether or not such instances are relevant for the purposes of determining the validity of the adoption in the present case, this contention obviously cannot prevail when I am asked to review my previous decision.

As early as 1922 the Judicial Committee of the Privy Council in Chhajju Ram v. Neki, ILR 3 Lah, 127: (AIR 1922 PC 112), laid down in explicit terms that a Court hearing an application for a review of a decree of a decree made on appeal has no power to order a review upon the ground that the decision was wrong on the merits. Viscount Haldane, who delivered the judgment of the Privy Council, made the following important observations:

'They (their Lordships) think that Ruld1 of Order XLVII must be read as in itself definitive of the limits within which review is today permitted, and the reference to practice under former and different statutes is misleading. So construing it, they interpret the words 'any other sufficient reason as meaning a reason sufficient on grounds at least analogous to those specified immediately previously.' This view was reiterated in Bisheshwar Pratap Sahi v. Parath Nath, AIR 1934 PC 213.

(3) M. Ram Sarup next contended that my attention at the time of the hearing of the appeal was not drawn to three very important decisions which, if brought to my notice, would have changed the fate of the decision of the appeal. The first of such authorities to which he has drawn my attention is Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132, in which it is laid down that the restriction that adoptee should be of the same gotra is only a recommendation, and a person of a different gotra may be adopted by doctrine of factum valet.

This was a case of Jats of Ballabgarh. The counsel submits that the ratio of this case which construes the restriction on the adoptee being of the same gotra as merely recommendatory should be applied in constraining the entry in the instant case to be also merely directory and not mandatory. The second case to which my attention has bee drawn is Hem Singh v. Harnam Singh, AIR 1954 SC 581, in which the Privy Council's observation is approved and it is observed that the rules relating to ceremonies and to preferences in selection should be held to be directory and adoptions made in disregard of them are not to be considered invalid.

The third case to which a reference has been made is Lehri v. Mst. Kauri, Regular Second Appeal No. 201(P) of 1953, decided by Gosain J. on 30-4-1958, in which the learned Judge followed the Privy Council and the Supreme Court decisions mentioned above. This case also dealt with the power of adoption by a male. These three cases appear to me to be merely links in the chain of argument which the appellant may advance in support of his contention. Whether or not a reference to these authorities would have induced me to come to a different conclusion, it certainly does not, in my opinion, empower me to review my previous decision.

In view of the Privy Council authorities in ILR 3 Lah 127: (AIR 1922 PC 112) and AIR 1934 PC 213, it is hardly necessary to discuss the various decisions of the High Courts cited by Mr. Ram Sarup in support of his contention, that the point being of great public importance I should reopen the decision on the merits. The history of Ahirs as contained in the Gazetteer of Gurgaon District is, in this view of the matter, also not relevant. I asked Mr. Ram Sarup if he had any direct decision, dealing with the power of a widow to adopt to her deceased husband, in which the power conferred was liberally construed as is contended by him; he was, however, unable to cite any such authority. As held in Rajendra Prasad v. Gopal Prasad, AIR 1930 PC 242, at page 245 'it is well established law in India that authority given to a wife to adopt has to be strictly pursued'.

Also in this connection see Chowdry Pudum Singh v. Koer Oodey Singh, 12. M. I. A. 350, at p. 356.

(4) Mr. Ram Sarup then argued that unless the land was established to be ancestral the adoption in dispute could not be challenged. It appears that this aspect of the case was not only not argued before me but it did not form the subject-matter of either an issue or of argument in the Courts below either. Mr. Gandhi, on behalf of the respondents has in this connection also relied on Durga Dass v,. Mt, Rodi, AIR 1953 Punj. 103 for the proposition that adoption under Customary Law is a relationship between two individuals which gives rise to certain consequences and therefore the question of ancestral nature of the property is not a relevant consideration in deciding the validity of the adoption.

It is true that this is Division Bench authority which on a Letters Patent Appeal reversed the decision of a learned Single Judge; but the point directly arising for decision before the Bench was one of res judicata and not relating to validity of adoption. When the adopter owns only non ancestral or acquired property and he makes an adoption the question does, under the law, arise as to how far it is open to his collaterals to restrict or control his right to make an adoption. It is not the question of ancestral nature of the property affecting the validity of an adoption but the right of the plaintiff, in such circumstances, to come to the Court and ask for a declaration that the adoption is invalid.

It is from this point of view that the question of non-ancestral or acquired nature of the property owned by the adopter assumes importance for determining the locus standi of the plaintiff to institute such a suit. It is well established that in most essential features customary appointment of heir closely resembles a gift; the nature of property affected by adoption would, from this point of view clearly fall to be considered when the validity of the adoption is assailed by the collaterals.

Durga Dass case, AIR 1953 Punj 103, however, was decided on its own peculiar facts and the observations relied upon by Mr. Gandhi must be construed in its own context; the ratio of that case is thus not at all helpful to Mr. Gandhi and hardly relevant in the instant case. but be that as it may, the question of ancestral or non-ancestral nature of the property having not been the subject-matter of an issue or of a decision, it is not necessary for me to pursue this matter any further. It is also unnecessary to deal with Data Ram v. Teja Singh, Regular Second Appeal No. 679 of 1953: (AIR 1959 Punj 428), decided by Falshaw J. and myself on which also reliance was placed by Mr. Ram Sarup. Once a case is decided, it is hardly permissible to review that decision on the mere ground that subsequent to its date, another decision has been given, the ration of which may induce the Court to charge its previous view.

(5) For the reasons give above, this petition fails and is hereby dismissed. In the circumstances of the case, however, there will be no order as to costs.

(6) Petition dismissed.


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