1. This is an application in revision by the minor deft. Bhagwati Charan against the judgment & decree of the learned District Judge of Sirmur dated 11-5-1950, dismissing his appeal against the judgment & decree of the Senior Subordinate Judge of Nahan dated 31-12 1949, whereby the suit of the plff.-respondent Sunder Lal for possession of a half share in the house & landed property left by his brother Shadi Earn was decreed, Joti Praaad, deft.-respondent, is another brother of the plff. & the applicant Bhagwati Charan is Joti Prasad's grandson.
2. Shadi Ram died issueless on 16 Asoj, 2004. About seven years before that be bad executed a deed of adoption on 25 sawan 1997, purporting to have adopted his brother Joti Prasad'a grandson, the present applicant Bbagwati Cbaran. The parties are Saraswat Brahmins of Nahan.
3. The present suit was filed about a year after the death of Sbadi Bam on the allegation that the two surviving brothers of the deceased, the plff. Sunder Lal & the deft. Joti Prasad, were entitled to the property left by the deceased as his nearest reversioners in equal shares, & that the applicant Bbagwati Charan had no right, title or interest in that property because he was in fact not adopted by Shadi Ram & the adoption was invalid according to the custom prevalent amongat the Saraswat Brahmins of Nahan. The alleged custom is contained in paras. 54 & 55 of the Riwaj-i-am for tehsil Nahan. According to these entries adoption amongst the Saraswat Brahmins of tahsil Naban is subject to two inhibitions : (i) a widower cannot adopt, & (ii) no adoption is valid whilst collaterals upto the seventh degree are in existence.
4. The trial Court decreed the suit holding that, although adoption had taken place after performance of the necessary ceremony of giving & taking, it was invalid under the aforesaid custom because Shadi Ram was a widower at the time of the adoption & because of the existence of his brothers. On an appeal by Bhagwati Charan the learned District Judge maintained the decree of the trial Court not only on the ground of custom but also on the ground that the ceremony of giving & taking had not been proved to have been performed.
5. In this revision two points were argued on behalf of the applicant. In the first place, adoption was supported by pleading that the appellate Court was not justified in reversing the finding of the trial Court as to its having been validly performed & that the custom relied upon by the plff. was of no application in the present case inasmuch as customs concerning transfers recorded in Riwaj-i-ams related to transfers of ancestral property, but the plff. had neither alleged nor proved that the property in suit was of that nature. In the next place, it was argued that the aforesaid deed dated 25 sawan 1997, even if it be not valid as a deed of adoption, was valid as a deed of transfer in favour of the applicant, taking effect after the death of Shadi Ram.
6. In connection with the first point there was a basic principle propounded by the learned counsel for the applicant, & that was that adoption is only another form of gift taking effect after the death of the adopter. That is no doubt the sense in which adoption is understood amongst the agricultural tribes of the Punjab. Under the Hindu law the objects of adoption, as is well-known, are twofold, one the religious object ofsecuring spiritual benefit to the adopter & his ancestors, & the other the secular one of securing an heir to perpetuate the adopter's name. Amongst the agricultural tribes of the Punjab, however, the religious aspect of the matter is totally absent. Amongst them, as pointed out by Rattigan in the Introduction to chap. III of his well-known Digest of Civil Law, for the Punjab chiefly based on The Customary Law, adoption partakes more of the character which the act assumed in the later Roman Law as a simple nominis heredis institutio: that is to say, it is more or less public institution by a sonless owner of land of a person to succeed him as his heir. It is for that reason that adoption, according to the customary law prevalent amongst the agricultural tribes of the Punjab, is spoken of as the 'appointment of an heir.'
7. The establishment of the above proposition of law is necessary for the deft. applicant being able to support the contention that the custom relied upon by the plff. was of no application in the present case since (as is no doubt true, as held in Mt. Kishni v. Munshi, A. I. R. (22) 1935 Lah. 550 customs recorded in Riwaj-i-ams, unless there is a clear statement to the contrary, refer to ancestral property only. In other words, the question of entries in Riwaj-i-ams relating to adoption having reference only to ancestral property would not arise unless adoption be construed as equivalent to a transfer of property.
8. The question, however, is whether the aforesaid purely secular notion of adoption as being tantamount to transfer of property is applicable to the residents of Nahan. There are the following reasons for its inapplicability. Wherever that proposition has been laid down, whether in the aforesaid Introduction to chap. III of Rattigan's Digest, or in the rulings Sant Singh v. Sadda, 63 P. B. 1912, & Gainda v. Jai Devi, A. I. R. (31) 1944 Lah. 90, cited by the learned counsel for the deft.-applicant, it has been made clear that it is a rule based on the customary law prevalent amongst the agricultural tribes of the Punjab. The residents of the town, or even the district of Nahan, irrespective of whether they are or are not agriculturists, cannot, however, be described as belonging to the Punjab. Nahan was never a part of the Punjab, & it is not so even now. Nor was any authority cited to support the view that the general customary law prevalent in the Punjab should also be followed in Nahan.
9. There is no doubt that since the formation of Himachal Pradesh the Punjab Laws Act (iv  of 1872) has been enforced in this State, but the only effect of that, in view of the provisions of Section 5 of that Act, is that the rule of decision in questions regarding various matters enumerated in the section, including adoption, shall be any custom applicable to the parties concerned, or the personal law of the parties except in so far as it has been modified by any such custom. What that custom is, & whether the parties are governed by it, must be ascertained by the Court in each case, & even in regard to that custom there is no presumption that the parties are governed by it, as held by Robertson J. in Muhammad Hussain v. Sultan Ali 54 P. R. 1903 and by Bhide J. in Sabhachand v. Piare Lal, 11 Lah. 481. A fortiori, the enforcement of the Punjab Laws Act, 1872, could not possibly have the effect of introducing into this State of Himachal Pradesh the customary laws generally prevalent amongst the agricultural tribes of the Punjab. It follows, therefore, that there is no justification for interpreting adoption as a transfer of property in conformity with the connotation of that term according to the customary law prevalent amongst the agricultural tribes of the Punjab. Consequently, the aforesaid entries in the Riwaj-i-ams for tehsil Nahan relating to adoption amongst the Saraswat Brahmins of the tehsil cannot be interpreted as entries relating to a mode of transfer of property, & therefore to transfer of ancestral property. That being so, the argument of the learned counsel for the deft.-applicant that the said entries in the Riwaj-i-am are not applicable in the present case by reason of the pltf.-respondent having neither alleged nor proved that the property in suit was ancestral would be unsustainable.
10. On the other hand, it might well be urged in favour of accepting the aforesaid purely secular notion of adoption that there would be no point in laying down the aforesaid customs in the Riwaj-i-am of tehsil Nahan unless adoption were to be understood here also in conformity with the connotation of that term according to the customary law prevalent amongst the agricultural tribes of the Punjab. It could well be argued that unless the relaters of the customs recorded in the Riwaj-ia-am in question had that purely secular notion of adoption in view they would not have been interested in laying down those customs by way of a check on the powers of adoption. The question would then arise as to whether this process of deduction would be a permissible way of concluding that the aforesaid general customary law obtaining amongst the agricultural tribes of the Punjab is also applicable here. Might it not be contended that this process of deduction is not one of the recognised ways of proving a custom, e.g., under Sections 48 & 49 & Clause (4) of 8. 33, Evidence Act, or by citations of judicial decisions under Section 13 & of entries in Riwaj-i-ams under Section 35, Evidence Act ?
11. The fact is that this question of the applicability of the aforesaid general customary law prevalent amongst the agricultural tribes of the Punjab to the residents of Nahan was not argued before me by the learned counsel for the parties. They did not go at all into that aspect of the matter, The above pros & cons have been related by me as they have struck me while dictating the judgment. I would therefore leave the matter at that in this case in the hope that when it arises again it would be fully argued by the learned counsel for the parties to enable me to pronounce a considered opinion on this important question for the guidance of subordinate Courts in this newly created State. Fortunately, it is possible for me to dispose of this revision without having to record any opinion on the aforesaid question which I have left open.
12. Even if it be conceded that adoption is tantamount to transfer, & that therefore the aforesaid entries in the Riwaj-i-am relate to transfer of ancestral property, the contention put forward, on behalf of the deft.-applicant that the pltff.-respondent had neither alleged nor proved that the property in suit was ancestral is unsustainable. The contention that the pltf. had failed to prove that the property in suit was ancestral has been taken by the deft.-applicant for the first time in this revision. It was not taken either in the Court of first instance or in the Court of the District Judge. The aforesaid custom as a bar to the adoption was pleaded by the pltf. in para. 6 of the plaint. In reply to this, all that the defts. contended in their written statements was that the customs were not applicable to the Saraswat Brahmins of Nahan since they were governed by the Hindu Law. It was nowhere pleaded that they were not applicable because the property in suit was not ancestral. It is noteworthy that the only alternative to the property being ancestral was that it was non-ancestral, & that if it were a fact that the property was really non-ancestral in character, the defts. would not have failed to take up that plea inasmuch as the pltfs. would not in that case have been entitled to contest the alienation. Under Order 8, Rule 2, Civil P. C., the deft. must raise by his pleading all matters which show the suit not to be maintainable, ......& all such grounds of defence as, if not raised would be likely to take the opposite party by surprise. It was incumbent upon the deft.-applicant therefore to have pleaded in his written-statement that the custom relied upon by the pltf. was not applicable in the present case because the property in suit was non-ancestral in character. As already stated, no such plea was raised with the result that by raising it now in this revision he has taken the pltf.-respondent by surprise, which he cannot be allowed to do. In fact, in view of the circumstances mentioned above, the deft. applicant would be deemed to have waived that plea in the two Courts below.
13. The learned counsel for the deft, applicant cited Badaman v. Net Ram, 57 P. R. 1912 in this connection. That was however a case where it was held that the plffs. in order to succeed must prove affirmatively the allegations made by them, & that the weakness of the deft's case should not have been accepted as proof of plff's title. That is not the position here. In the present case, the defts. impliedly admitted in the trial Court that if the parties were not governed by the Hindu law, but by customs recorded in the Riwaj-i-am of tehsil Nahan, they would be bound by those customs or in any case, they waived the objection that the custom was inapplicable because the property was non-ancestral. The ruling cited bythe learned counsel for the plff.-respondent has no application in the present case. In the result therefore I hold that the aforesaid special customs recorded in the Riwaj-i-am of tehsil Nahan are applicable in the present case & that consequentlythe adoption was invalid both because Shadi Ram was a widower & because his two brothers, Sunder Lal & Joti Prasad, were in existence.
14. The nest point urged on behalf of the deft.-applicant was that the deed dated 25 Sawan, 1997, even if it be not valid as a deed of adoption, was valid as a deed of transfer in favour of the applicant, which took effect after the death of Shadi Bam. As held in the aforesaid ruling, Sant Singh v. Sadda, 63 P. R. 1912, cited by the learned counsel for the deft-applicant, it cannot certainly be said that in no case can a deed of adoption be construed as a will in favour of the adopted son. It must, however, be remembered, as was further held in the same case, that the construction to be put on a deed of adoption in any particular case must be determined by its contents, & not by what may have been decided in another case with reference to another deed. This is indeed a rule of universal application whenever the question of interpretation of a document arises. A persual of the deed in question in the present case will show that Shadi Ram never intended it to serve as anything else than a deed of adoption. He starts by saying that he was adopting the son of his nephew Salig Ram in deference to the wishes of his deceased wife, who was anxious that he may have a son who could offer libations of water to his manes & to those of his ancestors. He then goes on to recite that he had accordingly adopted Bhagwati Charan, son of his nephew Salig Ram, with due ceremony & with the consent of his collaterals. Thereafter he describes the property of which he was the owner & declares that Bhagwati Charan would be the owner of that property after his death as his adopted son. It is clear therefore that the main purpose of Shadi Ram in executing this deed was that it might serve as proof of adoption. The recital that Bhagwati Charan would be the owner of his property after his death as his adopted son was merely the recital of an incident of adoption. In other words, it was the recital of an effect which the adoption would have, so that if for any reason the adoption were to fail that effect would not ensue. Before the document could be interpreted as a will it is necessary that Shadi Ram should have intended it to operate as such. In view, however, of the essential nature of the deed, as shown by the above recitals, it is clear that Shadi Ram never intended it to operate as a will. I do not therefore accept the proposition put forward by the learned counsel for the deft.-applicant that the deed in question amounted to a testamentary disposition of property by Shadi Ram in favour of the applicant.
15. Both the grounds taken by the learned counsel for the deft. applicant therefore fail. This application in revision is accordingly dismissed with costs.