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Gurdev Singh and ors. Vs. Kehar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 152 of 1976
Judge
Reported inAIR1982P& H289
ActsHindu Succession Act, 1956
AppellantGurdev Singh and ors.
RespondentKehar Singh and ors.
Cases Referred(Teja Singh v. Kesar Singh
Excerpt:
.....case. 72 clearly suggests as to whether the adopted son would retain his right to inherit to his natural father and whether he would succeed his natural father if he dies without other sons. the answer clearly shows that the adopted son will not ordinarily succeed his natural father if any other son or sons are alive but in case the natural father dies without leaving any other son, then the adopted son would succeed to the estate left by him. if the customary adoption had the effect of adoption like the hindu law, then the adopted son would have stood transplanted in the adoptive family and he would have succeeded to his adoptive father as also to the collaterals of the adoptive father as if he was a natural son and similarly he could not succeed either to his natural father or to..........exhibit d-1 dt. 8th apr. 1929. in the year 1950. dhian singh died and on his death his son beant singh succeeded to his entire estate to the exclusion of kehar singh who had been adopted by dasondha singh. in the year 1961, beant singh also died without leaving a mother, widow or any child. on his death, kehar singh claimed to be his next heir as his brother whereas the collaterals of beant singh claimed to be nearer heirs on the plea that kehar singh stood transplanted by formal adoption in the family of dasondha singh and, therefore, was not entitled to collateral succession to the estate left by beant singh. the collaterals filed the present suit for a declaration against kehar singh and pleaded that they were owners in possession of the same as next heirs of beant singh and that.....
Judgment:

Gokal Chand Mital, J.

1. The sole point for consideration in this appeal is whether in Tahsil Phillaur of District Jullundur, a customary adoption is formal so as to transplant the adopted son in the adoptive family, completely serving his connections in the family in which he was born or it would be merely an appointment for an heir reserving right to the adopted son to succeed collaterally in the family in which he was born.

2. Dhian Singh was the original owner of the property in dispute situate in Tahsil Phillaur, District Jullundur. He had two sons Beant Singh and Kehar Singh. Kehar Singh was adopted by Dasondha Singh vide adoption deed Exhibit D-1 dt. 8th Apr. 1929. In the year 1950. Dhian Singh died and on his death his son Beant Singh succeeded to his entire estate to the exclusion of Kehar Singh who had been adopted by Dasondha Singh. In the year 1961, Beant Singh also died without leaving a mother, widow or any child. On his death, Kehar Singh claimed to be his next heir as his brother whereas the collaterals of Beant Singh claimed to be nearer heirs on the plea that Kehar Singh stood transplanted by formal adoption in the family of Dasondha Singh and, therefore, was not entitled to collateral succession to the estate left by Beant Singh. The collaterals filed the present suit for a declaration against Kehar Singh and pleaded that they were owners in possession of the same as next heirs of Beant Singh and that Kehar Singh had been formally adopted by Dasondha Singh and, therefore, he lost all rights of inheritance in the family in which he was born. Kehar Singh admitted the adoption but pleaded that it was a customary appointment of an heir and under custom by which the parties were governed he had not been transplanted into the family of his adoptive father and had the right to succeed to Beant Singh as his brother. The trial Court decreed the suit on returning a finding that the adoption was formal. The learned Additional District Judge reversed the finding of the trial Court and held that it was an informal adoption under custom by which he retained the right to collateral succession in the family in which he was born. The appeal was allowed and the suit was dismissed. The aforesaid decision was affirmed by a learned single Judge of this Court. This is plaintiff's letters patent appeal.

3. After hearing the counsel for the parties, we are of the view that the decision of the learned single Judge is well based. The learned counsel for the plaintiff-appellants has urged that the adoption deed Exhibit D-1 as also the statement of Kehar Singh defendant go to show that ceremonies were performed at the time of adoption and once it is proved that some ceremonies are performed, it become a formal adoption like the one under the Hindu Law and, therefore, Kehar Singh stood completely transplanted in the adoptive family with the result that he had no right to succeed in the family in which he was born. A reading of the adoption deed as also the statement of Kehar Singh would show that ceremonies like collection of the brotherhood, declaring the factum of adoption in their presence, distribution of sweets and the writing of the adoption deed were performed and besides these no other ceremony was performed. These are the usual ceremonies which are performed in a case of customary adoption and are in consonance with the Riwaj-e-Am of the Jullundur district, including Phillaur Tahsil. In this regard, the relevant questions and answers contained in the Riwaj-e-Am of Jullundur district deserve to be noticed:--

'Question 71--Are any formalities necessary to constitute a valid adoption? If so, describe them. State expressly whether the omission of any customary ceremonies will vitiate the adoption.

Answer--The essence of adoption is that the fact of adoption be declared before the brotherhood or other residents of the village. The usual practice is that the baradari gathers together and the adopter declares in their presence of the fact of the adoption. Sweets are distributed. A deed of adoption is also drawn up. Unless these formalities are observed, the adoption is not considered valid...........................'

'Question 72--Does an adopted son retain his right to inherit from his natural father? Can he inherit from his natural father if the natural father dies without other sons?

Answer--In the Jullundur Tahsil (except among Mahtons) and in the Phillaur and Nawanshahr Tahsils an adopted son cannot inherit his natural father, but he can do so if his natural father does without leaving other sons.'

A reading of the answer to question No. 71 would show that in customary adoption in the Jullundur district ceremonies like collection of brotherhood, declaration of the factum of adoption in their presence, distribution of sweets and drawing of a deed of adoption are the usual formalities which are observed for considering an adoption to be valid and precisely these ceremonies were followed in this case. Hence, merely because of the performance of such ceremonies, no conclusion can be arrived at one way or the other.

4. Whether on the observance of the aforesaid ceremonies an adoption would be formal or merely appointment of an heir (informal), question No. 72 and the answer thereto have to be considered. Question No. 72 clearly suggests as to whether the adopted son would retain his right to inherit to his natural father and whether he would succeed his natural father if he dies without other sons. The answer is that in the Jullundur, Phillaur and Nawanshahr tahsils an adopted son cannot inherit his natural father but he can do so if his natural father dies without leaving any other son. The answer clearly shows that the adopted son will not ordinarily succeed his natural father if any other son or sons are alive but in case the natural father dies without leaving any other son, then the adopted son would succeed to the estate left by him. If the customary adoption had the effect of adoption like the Hindu Law, then the adopted son would have stood transplanted in the adoptive family and he would have succeeded to his adoptive father as also to the collaterals of the adoptive father as if he was a natural son and similarly he could not succeed either to his natural father or to other relations of his natural father. But, when adoption is informal, meaning thereby customary appointment of an heir merely to succeed to the adoptive father, then he does not succeed to the collaterals of the adoptive father and while no right is left to the adopted son to succeed to his natural father, in the presence of other son or sons, he does not lose his right to collateral succession in the family of his natural father. Hence, the answer clearly shows that in tahsil Phillaur of Jullundur district, besides other tahsils, the adoption would be informal because the adopted son has been allowed to inherit even his natural father in the absence of any other son or sons. Once the adopted son is allowed to succeed to his natural father in the circumstances stated above, then it clearly shows that the adoption is not of a formal nature so as to completely transplant the adopted son in the family of the adoptive father. Therefore, it has to be held in the present case, on the basis of answer to question No. 72, that the adoption of Kehar Singh by Dasondha Singh was informal and Kehar Singh did not lose his right to succeed in the family of his natural father except when another son or sons were alive, which clearly goes to show that collateral succession in the family of his natural father is permissible under custom.

5. A case of Nawanshahr tahsil of Jullundur district came up for consideration before Achhru Ram, J., in Rattan Singh v. Nirmal Singh, AIR 1949 East Punjab 197, and while considering the scope of question No. 72 and the answer thereto in the Customary Law, he has held as follows:--

'My attention was drawn by the learned counsel for the respondent to the answer to question 72 in the Customary Law in which it is stated that an adopted son cannot inherit his natural father. That, however, cannot be taken to mean that he loses all connection with the natural family. It will be noticed that in answer to that question it is expressly stated that in the Phillaur and Nawashahr Tahsils an adopted son does succeed to the property of his natural father if the latter dies without leaving other sons. The parties to the present litigation belong to Nawashahr Tahsil and it is obvious that at least amongst them, in the absence of a real brother, the adopted son retains the right to succeed even to the property of his natural father. There in two Tahsils the right of an adopted son to succeed to the property of his natural father, in the absence of a real brother, has been recognized.

The Customary Law of the district does not recognize the right of an adopted son to succeed collaterally in the adoptive family.'

The same view was taken as has been taken by us and we approve of that decision.

6. A case of Amritsar district with regarded to customary adoption came up for consideration before the Supreme Court in Kehar Singh v. Dewan Singh, AIR 1966 SC 1555. In that case it was held that a customary adoption in Amritsar district is formal and the adopted son is completely transplanted in the family of his adoptive father and the adopted son is entitled to succeed to the collateral relations of his adoptive father. There question No. 90 of the Riwaj-e-Am and the answer thereto were as follows:--

'Question Answer

___________________________ ______________

90. Can an adopted son succeed All the tribes.

collaterally in the family Yes.

of his adoptive father?

Once collateral succession is permissible in the adoptive family, that is the only incidence of formal adoption and that is why it was held that in Amritsar district the adoption is formal having the result of completely transplanting the adopted son in the family of adoptive father. The learned counsel for the appellants wanted to derive support from the aforesaid decision but the answer to the relevant questions in the Jullundur district and the Amritsar district are clearly opposed to each other and, therefore, that case would be of no help to the appellants. This would be clear from the following observations made in the Supreme Court case (at p. 1558 of AIR):--

'In AIR 1951 Punj 117 (Teja Singh v. Kesar Singh), it was said that the ordinary rule in Amritsar district is that the adoption is complete. In other cases, it was said that ordinarily such an adoption is by way of a customary appointment of an heir. The true rule appears to be that it is a question of fact in each case whether the adoption by a Jat in the Amritsar district is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes a member of the adoptive father's family and acquires a right of collateral succession in the family. The loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the other hand, retention of the right of collateral succession in his natural family indicates that the adoption was informal by way of customary appointment of an heir.'

Since right to collateral succession has been allowed by answer to question No. 72, it has to be held that under the Customary Law, that is, the Riwaj-e-Am of Jullundur district in the tahsil of Phillaur, the adoption is informal by way of customary appointment of an heir and as such Kehar Singh did not lose right to collateral succession in the natural family. Accordingly, the finding of the learned single Judge is upheld.

7. Once it is held that Kehar Singh would retain his right to collateral succession in the natural family, it cannot be disputed that the succession would be governed by the Hindu Succession Act, 1956, as Beant Singh died in 1961 and Kehar Singh would be Beant Singh's brother and would be a nearer heir as compared to the plaintiffs who are collaterals of Beant Singh in third degree or beyond that. Therefore, it is Kehar Singh alone who would succeed to Beant Singh as his brother.

8. For the reasons recorded above, this appeal is dismissed with costs.

S.S. Sandhawalia, C.J.

I agree.

9. Appeal dismissed.


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