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Brij Lal Vs. Tulsi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 45 of 1966
Judge
Reported inAIR1970Delhi116
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 10
AppellantBrij Lal
RespondentTulsi and ors.
Appellant Advocate Chhabil Das, Adv
Respondent Advocate Sushil Malhotra and ; D.P. Sud, Advs.
Cases ReferredFaquir Chand v. Bishan Devi Air
Excerpt:
.....to challenge the gift of ancestral property, made in favor of adopted sons - it was ruled that the gifts of ancestral property made in favor of the adopted sons, who are the next male descendants and to the others with their consent, then the collaterals of the adopters in the fourth degree cannot challenge its validity - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india...........the trial court expressed its opinion that there was no obstruction in making a gift of non-ancestral property by any proprietor. the property having not been shown to be ancestral, the validity of the gifts was upheld. the trial court, however, added that in case the suit property was proved to be ancestral, these gifts would be clearly invalid because under custom, a gift of ancestral property could not be made except to the extent of a moderate portion in lieu of services. the court did not find any evidence on the record showing services to have been rendered by defendants nos. 1 to 4 to the donors. the adoption of bengali and aflatu by bhuroo and kanhiya respectively was also upheld. these adoptions were by means of registered documents. the necessary ceremony of adoption was.....
Judgment:

I.D. Dua, C.J.

1. Two gift-deeds dated 20-7-1962 and 4-2-1963 respectively were executed by Bhuroo and Kanhiya (defendants Nos. 5 and 5) in favor of defendants Nos. 1 to 4. The plaintiffs instituted a suit on the allegation that the land and the house, which are the subject-matter of the two gift-deeds, are their ancestral property and, thereforee, could not be validly gifted away. Of the donees, two of them are the adopted sons of the adoptors. In the suit, the plaintiffs have claimed a declaration that these gifts would not affect their reversionary rights after the death of defendants Nos. 5 and 6. The donees resisted the suit. The plaintiffs' relationship was denied and so was ancestral character of the property. It was further pleaded that the gifts had been made in their favor in lieu of services, with the result that even if the property were proved to be ancestral, the gifts were valid. The two donees who claim to have been adopted as sons are Bengali and Aflatu. It was pleaded that as these two persons had been appointed as heirs of the adoptors, the plaintiffs had no locus standi to bring the present suit which was, in the circumstances, purely speculative.

2. The trial Court framed a number of issues on the pleadings of the parties. After observing that the objection regarding the valuation of the house in dispute was no pressed, it held the plaintiffs to be collaterals of defendants Nos. 5 and 6. In the fourth degree, and indeed this was conceded by the defendants. The property was held not to have been proved to be ancestral. Following a decision of the Punjab High Court in Kirly v. Kishan Del Air 1951 Sim 168, according to which a gift of a reasonable and moderate portion of the ancestral land can be made in lieu of services and observing that such a custom was admitted by the learned counsel for the parties, the trial Court expressed its opinion that there was no obstruction in making a gift of non-ancestral property by any proprietor. The property having not been shown to be ancestral, the validity of the gifts was upheld. The trial Court, however, added that in case the suit property was proved to be ancestral, these gifts would be clearly invalid because under custom, a gift of ancestral property could not be made except to the extent of a moderate portion in lieu of services. The court did not find any evidence on the record showing services to have been rendered by defendants Nos. 1 to 4 to the donors. The adoption of Bengali and Aflatu by Bhuroo and Kanhiya respectively was also upheld. These adoptions were by means of registered documents. The necessary ceremony of adoption was also proved to have been performed. The argument that Bengali was more than 15 years old and was a married man before his adoption and, thereforee, his adoption was invalid, was negatived on the basis of question and answer 74 of the Customary Law of the Kangra District complied in the Revised Settlement of 1914-1918 by Mr. Middleton. Under this rule of customary law, according to the trial Court, adoption of persons like Bengali, who was stated to be 25 years old, was permissible. Even otherwise, such an adoption was held to be valid as held in Ganga Singh v. Basant (1960) 62 Pun Lr 425. In the presence of Bengali and Aflatu, the plaintiffs had, in the opinion of the trial Court, no locus standi to contest the gifts. Reliance for this view was placed on a Bench decision of the Punjab High Court in Maghar Singh v. Gujjar Singh. (1964) 66 Pun Lr 865.

3. An appeal having been taken to the Court of the learned Additional District Judge, that Court reversed the conclusion of the learned Senior Subordinate Judge on the question of the non-ancestral nature of the property. The gifted property was accordingly held to be ancestral. The adoptions were also held to have been proved beyond all doubt and Bengali and Aflatu being adopted sons of Bhuroo and Kanhiya respectively, were held entitled to succeed to them even if the gifts in their favor were not valid. On this view, the plaintiffs were held disentitled to a declaratory decree because they would not be the heirs of the property in dispute at the time the succession opens. The appeal was on this view dismissed.

4. On second appeal in this Court, Shri Chhabil Das, the learned counsel for the appellants, has contended that merely because two of the donees are the adopted sons, the plaintiffs cannot be deprived of their right as collaterals to challenge the gifts if they are invalid because the declaratory decree would ensure for the benefit of all those collaterals who, at the time the succession opens, are found entitled to succeed, unless they have lost their right in some other way. He has also relied on Section 10 of the Hindu Adoptions and Maintenance Act of 1956, which lays down that no person shall be capable of being taken in adoption unless, inter alia, he or she had not been married and he or she has not completed the age of 15 years. These two conitins, however, are subject to a custom or usage applicable to the parties which permits adoption of married persons and of persons who have completed the age of 15 years. According to the learned counsel, in the case in hand, there is no custom permitting the adoption of married people and of people above 15 years of age. Question 74 on which reliance has been placed by the Courts below, according to Shri Chhabil Dass, does not establish a custom as contemplated by Section 10 of the Adoptions Act. The parties in the present case are tribes of Dehra.

5. It is desirable at this stage to reproduce question and answer 74 of the Customary Law of the Kangra District:

'Question 74. Is it necessary that the adopted son should be under a certain age? If so, up to what age is adoption allowable?

Answer:- The Dehra tribes say he should be under 20, and that of Hamirpur say he should be under 25. The Nurpur tribes says he can be adopted only if 6 or below 6.

The Rajputs, Rathis, Jats of mangra, the Rajputs, Rathis, Gaddis and Kanets of Palampur fix no age. The Brahmans of Kangra and Palampur. Mahajans Suds, Khatris, Jats and Sainis of Palampur say he should be below 12, and the person adopting should perform the Yagyopvid ceremony in his own house.

The Khatris, Mahajans, Suds and Sainis of Kangra Tahsil say the person adopted should be below 20 at the utmost.

The Ghirths of Palampur say he should be below 10, and the Gaddis of Kangra say there is no limit of age if the person adopted is of one's own family, but if he is not he should be of age.'

6. After giving some illustrations, the compilation gives some exceptions from Tahsil Hamirpur and there are instances of adoptions of persons of 25, 30 and 40 years of age. The answers given by the various tribesmen to this question clearly suggest that the provision in regard to the question of age cannot be considered to be mandatory in the sense that the adoption of a person who is a little older than the age as suggested by the answer, must necessarily for this reason alone, be held invalid. The law reports abound with decision dealing with similar provision in other compilations of customary law of the Punjab which support the directory nature of such a provision. The fact that a person as old as 20, and as suggested by the Exceptions, a person as old as 40, is permitted to be adopted, has inherent in it the permissibility of the adoption of a married man. Keeping in view the general tendency of Kangra, I would be disinclined to hold that the customary adoption excludes from its fold the adoption of a married man, particularly amongst Dehra tribes. In the connection, it would not be out of place to refer to the decision of the Supreme Court in Hem Singh v. Harnman Singh : [1955]1SCR44 , to which reference has also been made in the judgment of the trial Court. It has been observed in that judgment:-

'Whether a particular rule recorded in the 'Riwaj-i-am' is mandatory or directory must depend on what is the essential characteristic of the custom. Under the Hindu law adoption is primarily a religious act intended to confer spiritual benefit on the adoptor and some of the rules have, thereforee, been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand, under the Customary Law in the Punjab, adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid.'

In Jiwan Singh v. Pal Singh 1913 Pun Re 24, a Bench of the Punjab Chief Court, while dealing with the Riwaj-i-am of the Amristar District, observed that the provision in regard to the age of the adopted son is of a recommendatory and not of mandatory character. Reliance for this view was placed in the reported case on an earlier decision of the same Court in Budh Singh v. Mula Singh 1905 Pun Re 40. Rattigan's Digest of Customary Law, which gives the general trend of customary rules prevailing in Punjab, states in paragraph 36 that there are no restrictions as regards the age or the degree of relationship of the person to be appointed. Amongst the authorities noted in the foot-note, Chanda v. Akbar 1909 Pun Re 49, is a case of Lohar of Amristar Tahsil, upholding the adoption of a married man, with children, of 26 years of age. The impugned adoptions, thereforee, cannot be held to be invalid.

7. Turning now to the question of competency of the present suit, it is undoubtedly true that the proper person to object to an alienation is the nearest reversionary heir, but when he happens to be a minor or is shown that he is in collusion with the alienor, or that he has refused without sufficient cause to institute proceedings, or has precluded himself by his own act or conduct from suing, or has concurred in the alienation or the act alleged to be wrongful, the next reversioner is entitled to maintain the action. This broad rule is contained in paragraph 67 of Rattigan's Digest of Customary Law. But the occasion to refer to this broad rule contained in paragraph 67 arises only when the concurrence of the next reversioner in the alienation has not the effect of rendering such alienation absolutely unassailable. Where such an alienation has become unassailable or indefeasible, paragraph 67 cannot be taken to confer any right on the remoter reversioner to challenge that alienation. The alienation of ancestral immovable property becomes unassailable if, inter alia, the next male decendants consent to it; see paragraph 59 of Rattigan's Digest of Customary Law. This proposition seems to be deducible from the decision in Khuda Yar v. Imam Din 1927 Lah 521 which was approved by a Bench of the Lahore High Court in Faquir Chand v. Bishan Devi Air 1947 Lah 185. The decision in Maghar Singh's case (1964) 66 Pun Lr 865 to which reference has been made by the trial Court in its judgment, also points out that it is only an alienation which has not become indefesible which can be challenged by the nearest reversionary heir. In the case in hand, in my view, as soon as the gifts are made in favor of the adopted sons, who are the next male decendants and to the others with their consent which must be assumed in his case, the suit by the present plaintiffs must be held to be incompetent because of the principle enunciated above. This appeal, in the circumstances, fails and is dismissed, but with no order as to costs.

8. Appeal dismissed.


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