1. This second appeal has been filed by Amar Singh defendant against the judgment and decree of the Additional District Judge, Karnal, affirming those of the trial Court by which the suit of the plaintiff for possession by pre-emption had been decreed.
2. Briefly, the facts are that Harkesh respondents No. 2 sold land measuring 78 Kanals 18 Marlas situated in village Mandi to Amar Singh defendant for a consideration of Rs. 26,000 vide sale deed dt. 26th May, 1966. Tej Ram plaintiff filed a suit for possession by pre-emption on the ground that he was father's brother's son of Harkesh vendor. He took some other pleas which are not relevant for determination of the appeal.
3. The suit was contested by the defendant-vendee who controverted the allegations of the plaintiff and inter alia pleaded that Harkesh was not the adopted son of Smt. Hanso as no adoption took place. It was next averred that the he was the son of Phalel son of Baru with whom the plaintiff was not connected. He, therefore, pleaded that the plaintiff had not superior right of pre-emption.
4. On the pleadings of the parties, the learned Subordinate Judge framed seven issues. In appeal, however, the following two issues are relevant :--
1. Whether the plaintiff has a superior right of pre-emption ?
2. Whether the vendor Harkesh is not the adopted son of Smt. Hanso and can the defendant No. 1 Challenge the same ?
He held that Harkesh was the adopted son of Smt. Hanso and the plaintiff was his father's brother's son. Consequently, he passed a decree for possession in favour of the plaintiff on payment of Rs. 27,832.50. Amar Singh defendant No. 1 filed an appeal before the Additional District Judge, Karnal, who affirmed the judgment and decree of the trial Court and dismissed the same. He has come up in second appeal to this Court.
5. The first contention of Mr. Jawanda is that the original registered deed of adoption has not been produced and the plaintiff-respondent did not make out a case for leading secondary evidence. Therefore, the adoption deed cannot be taken into consideration for determining the issues.
6. I regret my inability to accept the contention. The objection regarding the mode of proof should have been taken at the time when the document was exhibited. In case the document was exhibited without any such objection, a party to the litigation cannot be allowed to raise an objection regarding it for the first time in appeal. In the aforesaid view, I am fortified by the observations in Gopal Das v. Sri Thakurji, AIR 1943 PC 83, S. Anup Singh v. Sardarni Harbans Kaur, (1957) 59 Pun LR 650 : (AIR 1958 Punj 116) and P. C. Purushotham Reddiar v. S. Perumal, AIR 1972 SC 608. In Gopal Das's case (supra), it was held that where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. This case was followed by this Court in Anup Singh's case (supra) and similar observations were made. The above view was affirmed by the Supreme Court in P. C. Purushothama Reddiar's case (supra).
7. The next contention of Mr. Jawanda is that Harkesh was more than 15 years of age and was married at the time of adoption. Under S. 10 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') such a person could not be adopted unless custom applicable to the parties allows that. He urges that custom should be pleaded and proved which has not been done in the present case.
8. I have heard the learned counsel at considerable length and given thoughtful consideration to their arguments. In the present case, Harkesh was adopted by a registered adoption deed dt. 12th Nov., 1963, S. 16 of the Act reads as follows:--
'Wherever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.'
From a reading of the section it is evident that if there is a registered document of adoption signed by the person giving and the person taking the child in adoption, the Court is required to presume that the adoption had been made in compliance with the provisions of the Act. In that eventuality it is on the other side to disprove the adoption. In the aforesaid view I get support from Basdeo Bhardwaj v. Ram Sarup, (1968) 70 Pun LR 535, wherein it is observed that where there is a registered document relating to adoption, the presumption shall be drawn in favour of adoption and it is then for the other side to disprove that adoption. The presumption has to be disproved by the other party by leading cogent evidence in rebuttal. It is further observed that where no such evidence is led, the legal presumption remains unaffected not having been disproved. In view of the document and the position of law, it is to be presumed that Harkesh was validly adopted and it is for the other side to rebut that presumption.
9. In the present case, in addition to the registered adoption deed, the adoption of Harkesh had been admitted by the appellant as well. In the agreement to sell dt. 2-4-1965 (Exhibit D-2) to which Harkesh respondent and the appellant are parties, the former described himself as adopted son of Smt. Hanso wd/o Net Raj. On the same day Rs. 7,300 were paid by the appellant to Harkesh and the latter executed a receipt (Exhibit D-3) in his favour. In the receipt again he described himself as adopted son of Smt. Hanso. Again in the sale deed (Exhibit D-3) he described himself as adopted son of Smt. Hanso. No doubt in the latter two documents the appellant did not put his signatures yet he accepted those documents as correct. He also appeared before the Registrar when the sale deed was presented to him and signed under the endorsement. He was present at the time when the said documents were executed. In the said circumstances, he is also estopped from saying that he does not admit Harkesh to be the adopted son of Smt. Hanso.
10. Now the question to be seen is as to whether the plaintiff-respondent had to plead and prove u/s. 10 of the Act that according to the custom a person who is above 15 and married can be adopted. The plaintiff-respondent in his plaint had stated that he had a superior right of pre-emption being the father's brother's son of Harkesh. The defendant in the written statement denied the aforesaid fact and pleaded that he had been wrongly described as the adopted son of Smt. Hanso and in fact no adoption took place. The relevant para of the written statement reads as follows:--
'That Harkesh has been wrongly described as adopted son of Smt. Hanso. In fact no such adoption took place nor could any such ceremonies performed. Harkesh is the son of Phulail son of Baru and thus the plaintiff has got no right of pre-emption, the parties being Jats governed by customary law.'
He did not plead that the plaintiff-respondent could not be adopted as he was more than 15 years of age and was a married person. The plaintiff-respondent in the replication asserted that he was not the son of Phulail but had been adopted by Smt. Hanso. As the plea regarding the adoption being invalid on the ground that he was above 15 years of age and was married, had not been taken in the written statement, there was no occasion for him to take a plea in the replication that there was custom under which a person who was above 15 and married could be adopted. In view of the aforesaid pleadings issue No. 2 as mentioned above, was framed and the onus of the issue was placed on defendant No. 1. Now he cannot turn round and say that it was for the plaintiff-respondent to plead and prove custom to the effect that the person who is above 15 and married can be adopted according to it. The learned counsel for the appellant has referred to Trojan & Co. v. RM.M.N. Nagappa Chettiar, AIR 1953 SC 235 and Shanti v. Surta, 1972 Pun LJ 623 : (AIR 1973 Punj 387). In the former case it was observed that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. In the latter case, it was held that it was an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. There cannot be any dispute about the correctness of the observations but both the cases are distinguishable on facts. In those cases, there was no such section where certain presumption as provided in S. 16 of the Act could be drawn.
11. In view of the registered adoption deed and the provisions of S. 16 of the Act, it was the duty of the appellant to plead in the written statement that Harkesh respondent could not be adopted as he was a married person and was more than 15 year of age. In the absence of the plea, it is to be presumed that his adoption was not challenged on these grounds. The appellant cannot be allowed to say that it was for the plaintiff-respondent to plead and prove the custom according to which a person who was above 15 years of age and married could be adopted.
12. The learned counsel for the plaintiff-respondent has sought to urge that in the absence of the pleading that a person who is above the age of 15 years and married could not be adopted, the evidence regarding the custom to the contrary could not be given. He has, however, argued that the general custom which has been recognised by the Courts becomes the law of the land and it is not necessary to prove it. According to him, in the Punjab, the general custom amongst the Jats is that a person who is above the age of 15 years and married can be adopted.
13. I find force in the contention of the learned counsel. It is well-settled that if the Courts have recognised the custom in a particular matter for a long time, that is considered to be the law and it is not necessary to prove it. The Courts can take judicial notice of such a custom. In the aforesaid view, I am fortified by the Supreme Court in Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041. The following observations may be read with advantage (at p. 1045) :--
'It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved. Under S. 57 of the Evidence Act, however, nothing need be proved of which courts can take judicial notice. Therefore it is said that if there is custom of which the Courts can take judicial notice, it need not be proved. Now, the circumstances in which the courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Rama Rao v. Raja of Pittapur, 45 In App 148 at pp. 154, 155 ; (AIR 1918 PC 81 at p. 83), in the following words, 'When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case'. When a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary u/s. 57(1) of the Evidence Act. It appears to us that in the courts in the Punjab the expression 'general custom' has really been used in this sense, namely, that a custom has by repeated recognition by courts, become entitled to judicial notice as was said in Bawa Singh v. Mt. Taro, AIR 1951 Punj 239, and Sukhwant Kaur v. Balwant Singh AIR 1951 Punj 242.'
Admittedly, the parties are Jats. It is well-recognised that the Jats in the State of Haryana, which was earlier a part of the erstwhile State of Punjab, are governed by customary law. In para 36 of Rattigan's Digest of Customary Law in the Punjab, it is clearly stated that there are no restrictions as regards the age or the degree of relationship of the person to be adopted. It is also well-settled that a married man having children can be adopted under custom. Reference in this regard may be made to Ramkishore v. Jainarayan, (1922) ILR 49 Cal 120 : (AIR 1922 PC 2), wherein it has been observed that under the Customary Law, a brother can be adopted, a daughter's son can be adopted; there is no limit as to the age of the person who may be adopted; a married man who has had children may be adopted; and a guardian may give a boy in adoption. No contrary view has been brought to my notice to the effect that amongst Jats such a person cannot be adopted. Therefore, I am of the opinion that the adoption of Harkesh respondent cannot be challenged on this ground.
14. Faced with that situation, Mr. Jawanda has further urged that in the present case the adoption, if there is any, is an appointment of an heir and as such Harkesh has not been transplanted into the family of the adopter. According to him, in that situation, the plaintiff-respondent does not get any right to pre-empt the sale effected by him. He fortifies his contention by referring to Inder Singh v. Kartar Singh, AIR 1966 Punj 258.
15. I am not impressed with this contention of the learned counsel either in the Courts below the case has been argued on the assumption that the provisions of the Act are applicable to the parties. The learned counsel also made a reference to them before me. S. 12 of the Act provides that an adopted child shall be deemed to be the child of his adoptive mother for all purposes with effect from the date of the adoption and from such date the ties of the child in the family of his birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. From the section, it is clear that the adopted person severs all relations with his natural family and he gets all his rights in the adoptive family. Therefore, it cannot be said that the relations of the adopted son who fall within the provisions of Section 15 of the Punjab Pre-emption Act on the adoptor's side cannot file a suit for pre-emption. I am supported in the above observations by Inder Singh's case (supra), referred to by the learned counsel for the appellant. In that case, pre-emption was sought u/s. 15(1)(a), thirdly, of the Punjab Pre-emption. Act, against the alienation of the vendor who had been adopted. It was held by the learned Judge that the right of pre-emption conferred by the said section on the father's brother or father's brother's son of the vendor is available even if the relationship is created by adoption or appointment of an heir. I do not think the learned counsel can derive any benefit from the said case.
16. For the aforesaid reason, I do not find any merit in the appeal and dismiss the same with no order as to costs.
17. Appeal dismissed.