H.R. Khanna, C.J.
1. This regular second appeal by Duni Chand and other defendants is directed against the judgment and decree of learned Senior Subordinate Judge, Kangra, affirming on appeal the decision of the trial Court whereby a decree for possession of one-half share in the land in dispute was awarded in favor of Paras Ram and Khazana plaintiff-respondents against the defendant-appellants.
2. In order to appreciate the facts of this case it would be useful to reproduce the pedigree table showing the relationship of the plaintiff-respondents with the defendant-appellants as under:-
Kalu Nihala Lehnu deceased Sunder Mst. Mahajnu Paras Ram Khazana Raj Ram Ram Rattan (defendant No. 1) Plaintiff No.1 Plaintiff No. 2 (deceased) Gianu Duni Chand (defendant No. 2) defendant No. 2.
Lehnu deceased was the last male holder of land measuring 52 Kanals 16 Marlas situated in village Pahlu. Lehna died succeeded to this estate. On September 18, 1944, Mahajnu made an oral gift of land measuring 52 Kanals 16 Marlas in favor of Ram Rattan Defendant No. 3 and Baj Ram father of Gianu defendant No. 2. On November 20, 1944, Khazana and Paras Ram plaintiffs filed a suit for declaration to challenge the above gift on the ground that the plaintiffs were the collaterals of Lehnu and that parties were governed by Cutomary law. It was prayed by the plaintiffs that the gift made by Mahanju in favor of Ram Rattan and Baj Ram should not affect their reversionary rights after the death of Mahajnu. In the aforesaid suit adecree of compromise was granted in favor of the plaintiffs against Mahajnu, Baj Ram and Ram Rattan on June 28, 1945. Exhibit P-3 is the copy of that compromise. Baj Ram, it appears, died some time thereafter. On November 27, 1957, Mahajnu filed suit No. 334 of 1957 for possession of the gifted land against Ram Rattan and Gianu by asking for the cancellation of the gift made by her in favor of Ram Rattan and Baj Ram. A decree by compromise for possession of one-half of the land in suit in that suit was awarded in favor of Mahajnu against Ram Rattan. The suit with respect to the remaining one-half of the land against Gianu was dismissed. The date of that compromise decree in Feburary 5, 1958. Exhibit P-5 is its certified copy. In the meantime on May 23, 1957, Mahajnu executed a deed of adoption showing the adoption of Duni Chand defendant No. 1 son of Ram Rattan defendant No. 3 by her (Mahajnu). Mahajnu died in September, 1960. The present suit recover of possession of land measuring 26 Kanals 8 Marlas was filed by Paras Ram and Khazana plaintiffs against Duni Chand and other defendants on June 1, 1961. According to the allegations of the plaintiffs, the compromise decree, which was granted in favor of Mahajnu on February 5, 1958, was a collusive and a sham transaction. It was stated that Duni Chand had not been adopted by Mahajnu and that even if the adoption be proved the same would have no effect on the plaintiffs' rights. The plaintiffs claimed decree for possession of the land in dispute in view of the earlier compromise decree which was awarded in their favor on June, 28, 1945. Nakidhu defendant No. 4 was imp leaded as a party because he was alleged to have obtained part of the land in dispute in exchange with other defendants.
3. The suit proceed ex parte against defendant No. 4. It was contested by the remaining defendants. According to defendants 1 and 3, defendant no. 1 was the adopted son of Mahajnu and in his presence the plaintiffs had no locus standi to file the present suit. The adoption of defendant No. 1 by Mahajnu was stated to be valid. It was denied that the decree dated Jne 28, 1945, was a collusive or a sham transaction. Defendants 1 and 3 further denied that the parties were governed by Customary Law.
4. Following issues were framed in the case:-
1. Whether Smt. Mahajnu did not secure a decree for possession relating to the land in suit against defendant No. 2 also?
2. Whether the decree in suit No. 334 of 1957 was collusive, fictitious and sham and not binding on the plaintiffs?
3. Whether Smt. Mahajnu was in possession as owner of the property in suit after the coming into force of Act 30 of 1956?
If so, to what effect?
4. Whether defendant No. 1 is not the adopted son of Smt. Mahajnu?
5. Is issue No. 3 is proved and issue No. 4 is not proved, whethe the plaintiffs have a locus standi to sue?
6. Whether the parties are/were governed by custom? If so, what is/was that custom?
7. Whether the plaintiffs have no right to sue in the presence of defendant No. 1?
5. The trieal Court decided issue No. 1 in favor of the plaintiffs and issue No. 2 against the plaintiffs. On issue No. 3 the finding was that Mahajnu was in possession of one-half of the land measuring 52 Kanals 16 marlas as owner after the coming into force of the Hindu Succession act. Issue No. 4 was decided against the plaintiffs and in favor of defendant No. 1. On issue No. 5 the finding of the trial court was that the decree awarded in Suit No. 334 of 1957 affected one-half of the land. The plaintiffs were found to have a locus standi in respect of half of the land in dispute and not with respect to the other half covered by suit No. 334 of 1957. On issue No. 6 it was held that the parties were governed by Cutosmary Law. Issue No. 7 was held not to arise. In the result the decree for possession of one half of the land in dispute, i.e., for about 13 Kanals 4 Marlas, was awarded in favor of the plaintiffs against the defendants.
6. Appeal against the decree awarded by the trial Court was filed by defendants 1 to 3, while cross-objections were filed by the plaintiffs.
7. Learned Senior Subordinate Jduge dismissed both the appeal and cross-objections. The only point which was raised in appeal was that Duni Chand became the validly adopted son of both Mahajnu as well as her husband and as such was entitled to the whole of the property of Majahnu and Lehnu. This contention was repelled.
8. In second appeal Mr. Chhabil Das on behalf of the appellants has argued that when Duni Chand was adopted by Mahajnu he became the adopted son of not only Mahajnu but also of her deceased husband Lehnu. As such, Duni Chand is stated to be preferential heir to the estate of Lehnu, as against the plaintiff-respondents. Duni Chand in the circumstances, according to the learned counsel, is entitle to the entire land in dispute and the plaintiff-respondents cannot derive any benefit from the declaratory decree which was awarded in their favor on June 28, 1945. As against that, Mr. Kailash Chand on behalf of the plaintiff-respondents has contended that even though Duni Chand, as found by the Courts below, was adopted by Mahajnu on May 23, 1957, he cannot be deemed to be the adopted son of Lehnu. Duni Chand, it is further urged, cannot be considered to be a preferential heir of Lehnu qua the plaintiff-respondnets.
9. I have given the matter my consideration and am of the view that the contention advanced on behalf of the appellants is well founded. The adoption of Duni Chand by Mahajnu took place, as mentioned earlier, on may 23, 1957, after the coming into force of the Hindu Adoptions and Maintenance Act, 1956 (Act No. 78 of 1956). According to Section 5 of that Act, no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in Chapter Ii of that Act and any adoption made in contravention of the said provisions shall be void. Section 6 of the Act deals with the requisites of a valid adoption, while Section 7 relates to the capacity of a male Hindu to take in adoption. Section 8 makes provisions for an adoption by a female Hindu and reads as under:-
'6. Capacity of a female Hindu to take in adoption.
Any female Hindu:-
(a) who is of sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind,
has the capacity to take a son or daughter in adoption.'
Section 9 deals with persons who are capable of giving in adoptions, while Section 10 specifies the persons who may be adopted. Section 11 prescribes the other conditions which must be complied with in order to make a valid adoption. Section 12 has a bearing and reads as under:-
'12. Effects of adoption.
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served and replaced by those created by the adoption in the adoptive family'
(a) the child cannot marry any person whom he or she could not have married if he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.'
According to Section 13 an adoption, subject to any agreement to the contrary, does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. Section 14 lays down the rule as to who should be determined to be adoptive mother of the adopted child.
The various provisions, mentioned above, were referred to by their Lordships of the Supreme Court in the case of Smt. Sitabai v. Ramchandra, : 2SCR1 . In that case, one Bhagirath died in 1930. His widow, Sitabai, adopted Suresh Chandra in March, 1958. One of the questions, which arose for decision in that case, was whether Suresh Chandra could be treated to be the adopted son of Bhagirath and as such whether he became a coparcener in respect of the joint family properties which were at one time held by Bhagirath and his brother Dulichand. The High Court held that Suresh Chandra became the adopted son of Sitabai with effect from March 1958, and could not become the adopted son of Bhagirath. This finding of the High Court was assailed in the Supreme Court. Ramaswami, J., speaking for the Court, on conspectus of the different provisions of the Hindu Adoptions and Maintenance Act, came to the conclusion that the High Court was in error in holding that the adoptee would be the adopted son of the widow and not of her deceased husband. It was observed as under:
'5. It is clear on a reading of the main part of Section 12 and sub-section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondinly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must thereforee be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in Section 14(1) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. In case of there being two wives the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of Sections 11 and 12, thereforee, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband's brother would necessarily be the uncle of the adopted child. The daughter the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become as member of the widow's family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husban. It is for this reason that we find in sub-section (4) of Section 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the 'step-father' of the adopted child. The true effect and interpretation of Sections 11 and 12 of the Act No. 78 of 1956 thereforee is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses.' In the face of the above pronouncement,Duni Chand in the present case should be held to be the adopted son not only of Mahajnu but of Lehnu.
10. The Courts below took the view that on account of the provisions of clause (c) of the proviso to Section 12 of the Act, Duni Chand could not divest the plaintiffs of the land which had vested in them. This approach of the Courts below was manifestly erroneous because there arose no question of divesting the plaintiffs of any land which had vested in them. All that was decided in the suit in which a compromise decree was awarded in favor of the plaintiffs on June 26, 1945, was that the gift made by Mahaju in favor of Ram Rattan and Baj Ram would not affect the reversionary rights of the plaintiffs. The aforesaid decree did not have the effect of vesting the land in suit in the plaintifs, the result of that decree was that whosoever was the preferential heir of Lehu after the death of Mahajnu, he would become entitled to file a suit for possession against the transferees. As Duni Chand is a preferencial heir of Lahnu qua the plaintiff-respondnets and is in possession of the land in suit, it is manifest that the plaintiffs cannot succeed in the present suit for possession of the estate of Lehnu against Duni Chand. The suit of the plaintiffs against Duni chand would consequently have to be dismissed.
11. Cross-objections filed by the plaintiff-respondents, in view of the conclusion at which I have arrived earlier, must necessarily fail.
12. I would, thereforee, accept the appeal, set aside the judgments and decrees of the Court below and dismiss the suit of the plaintiff-respondents. The cross-objections filed by the plaintiff-respondents are dismissed. Looking to all the facts, I leave the parties to bear their own costs throughout.