HEM SINGH & ANR V. HARNAM SINGH
& ANR  INSC 36 (1 April 1954)
HASAN, GHULAM MUKHERJEA, B.K. BOSE, VIVIAN
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 581 1955 SCR 44
Custom-Adoption-Gill Tats of village
Gillanwali, District Gurdaspur (Punjab)-Adoption of a collateral of 8th
Held, that under the Customary Law of
Gurdaspur District (Punjab) applicable to the Gill Jats of village Gillanwali,
the adoption of a collateral of the 8th decree is not invalid.
The answer to question 9 in Customary Law of
the Gurdaspur District that "the adoption of near collateral only"
should be recognised is not mandatory but directory.
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.
Jiwan Singh and Another v. Pal Singh and
Another (22 P.R. 1913 at p. 84); Sant Singh v. Mula and Others (44 P.R. 1913 at
p. 173); Charan Singh v. Butta Singh and Others (A.I.R. 1935 Lah. 83); Jowala
v. Dewan Singh (166 I.C. 237); and Basant Singh and Others v. Brij Raj Saran
Singh (I.L.R. 57 All. 494) referred to:
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 124 of 1951.
Appeal by Special Leave granted by His
Majesty in Council, dated the 30th October, 1945, from the Judgment and Decree,
dated the 12th July, 1944, of the High Court of Judicature at Lahore in Civil
Regular Second Appeal No. 450 of 1942, against the Judgment and Decree, dated
the 14th January, 1942, of the Court of the District Judge, Gurdaspur, in
Appeal No. 91 of 1941, arising from the Judgment and Decree, dated 31st July,
1941, of the Court of Senior Subordinate Judge, Gurdaspur, in Suit No. 80 of
G. S. Vohra and Harbans Singh for the
Achhru Ram (J. B. Dadachanji and R. N.
Sachthey, with him) for respondents.
45 1954. April 1. The Judgment of the Court
was delivered by GHULAM HASAN J.-This is an appeal by special leave granted by
the Privy Council against the judgment and decree dated July 12, 1944, of a
Division Bench of the High Court at Lahore passed in second appeal confirming
the dismissal of the appellants' suit cone currently by the trial Court and the
Court of the District Judge, Gurdaspur.
The two appellants are admittedly the first
cousins of the respondent, Harnam Singh, and belong to village Gillanwali,
Tahsil Batala, District Gurdaspur. Gurmej Singh, respondent No. 2, is a
collateral of Harnam Singh in the 8th degree.
The appellants sued for a declaration that
the deed of adoption executed by Harnam Singh on July 30, 1940, adopting Gurmej
Singh was invalid and could not affect the reversionary rights of the appellants
after the death of Harnam Singh. The appellant's case was that under the
Customary Law of Gurdaspur District applicable to the Gill Jats ,of village
Gillanwali, Harnam Singh could only adopt a is near collateral" and Gurmej
Singh being a distant collateral his adoption was invalid. The defence was a
denial of the plaintiffs' claim. Both the trial Judge and the District Judge on
appeal held that the factum and the validity of the adoption were fully
established. In second appeal Trevor Harries C. J. and Mahajan J. (as he then
was) held that there was sufficient evidence of the factum of adoption as
furnished by the deed and the subsequent conduct of Harnam Singh. They held
that all that was necessary under the custom to constitute an adoption was the expression
of a clear intention on the part of the adoptive father to adopt the boy
concerned as his son and this intention was clearly manifested here by the
execution and registration of the deed of adoption coupled with the public
declarations and treatment as adopted son. Upon the legal validity of the
adoption the High Court found that the answer to Question 9 of the Riwaj-i-am
of Gurdaspur District of the year 1913 laying down that the adoption of
"near collaterals only " was recognised was not mandatory. The High
Court relied in support of their 46 conclusion on a decision of Tek Chand J. in
Jowala v. Diwan Singh (1) and the Privy Council decision in Basant Singh v. Brij
Raj Saran Singh (2).
The first question regarding the factum of
adoption need not detain us long. The deed of adoption, Exhibit D. 1, recites
that Harnam Singh had no male issue who could perform his kiry a karam ceremony
after his death, that Gurmej Singh had been brought up while he was an infant
by his wife and that he had adopted him according to the prevailing custom. The
recital continues that since the adoption he had been treating and calling
Gurmej Singh as his adopted son. This fact was well,-known in the village and
the adoptee was en- joying all rights of a son. He had executed a formal
document in his favour in order to put an end to any dispute which might be
raised about his adoption. As adopted son he made him the owner of all of his
property. We are satisfied that there is ample evidence to sustain the finding
on the factum of adoption.
The main question which falls to be
considered is whether under the terms of the Riwaj-i-am applicable to the
parties, Gurmej Singh being a collateral of Harnam Singh in the 8th degree
could be validly adopted. The custom in question is founded on Question 9 and
its answer the Customary Law of the Gurdaspur District. They are as follows:-
" Question 9. Is there any rule by which it is required that the person
adopted should be related to the person adopting ? If so, what relatives may be
adopted ? Is any preference required to be shown to particular relatives ? If
so, enumerate them in order of preference. Is it necessary that the adopted son
and his adoptive father should be (1) of the same caste or -tribe; (2) of the
same got? Answer : The only tribes that recognised the adoption of a daughter's
son are the Sayyads of the - Shakargarh and the Arains of the Gurdaspur Tahsil.
The Brahmans of the Batals Tahasil state that only such of them as are not
agriculturists by occupation recognize such adoption. The Muhamadan Jats of the
(1) 166 I.C. 237.
(2) I.L.R. 57 All- 494.
47 Gurdaspur. Tahsil could not come to an
agreement on this point. The remaining tribes recognise the adoption of War
collaterals only. The right of selection rests with the person adopting. The
Khatris, Brahmans and Bedis and Sodis of the Gurdaspur Tahsil, however, state
that the nearest collaterals cannot be sperseded and selection should always be
made from among them" It is contended for the appellants that the expression
" near collaterals only " must be construed to mean a collateral up
to the third degree and does not cover the case of a remote collateral in the
8th degree. The restriction as regards the degree of relationship of the
adoptee, it is urged, is mandatory and cannot be ignored.
The expression " near collaterals "
is not defined by the custom. The relevant answer which we have underlined
above gives no indication as to the precise import of the words " near
collaterals." The custom recorded in the Riwaj-i-am is in derogation of
the general custom and those who set up such a custom must prove it by clear
and unequivocal language. The language is on the face of it ambiguous and we
can see no warrant for limiting the expression to signify collateral
relationship only up to a certain degree and no further. We are also of opinion
that the language used amounts to no more than an expression of a wish on the
part of the narrators of the custom and is not mandator. If the intention was
to give it a mandatory force, the Riwaj-i-am would have avoided the use of
ambiguous words which are susceptible of a conflicting interpretation. The
provision that the right of selection rests with the person adopting also
detracts from the mandatory nature of the limitation imposed upon the degree of
relationship. Though the adoption of what the custom describes as "near
collaterals only" was recognized by the community of Jats, the right of
selection was left to the discretion of the adopter. There is no meaning in
conferring a discretion upon the adopter if he is not allowed to exercise the
right of selection as between collaterals inter se. We are unable to read into
the answer a restriction upon the choice of the adopter of any particular
collateral however near in degree he may be, 48 In his valuable work entitled
"Digest of Customary Law in the Punjab" Sir W.H. Rattigan states in
paragraph 35 that "a sonless proprietor of land in the central and eastern
parts of the Punjab may appoint one of his kinsmen to succeed him as his
heir" and in paragraph 36 that "there is no restriction as regards
the age or the degree of relationship of the person to be appointed". It
appears to us that the basic idea underlying a customary adoption prevalent in
the Punjab is the appointment of an heir to the adopter with a view to
associate him in his agricultural pursuits and family affairs. The object is to
confer a personal benefit upon a kinsman from the secular point of view 'unlike
the adoption under the Hindu Law where the primary consideration in the mind of
the adopter if a male is to -derive spiritual benefit and if a female, to
confer such benefit upon her husband. That is why no emphasis is laid on any
ceremonies and great latitude is allowed to the adopter in the matter of
Mulla in his well-known work on Hindu Law
"It has similarly been held that the
texts which prohibit the adoption of an only son, and those which enjoin the
adoption of a relation in preference to a stranger, are only directory;
therefore, the adoption of an only son, or a stranger in preference to a
relation, if completed, is not invalid. In cases such as the above, where the
texts are merely directory, the principle of factum valet applies, and the act
done is valid and binding." (Page 541).
We see no reason why a declaration in a
Riwaj-i-am should be treated differently and the text of the answer should not
be taken to be directory. However peremptory may be the language used in the
answers given by the narrators of the custom, the dominant intention underlying
their declarations which is to confer a temporal benefit upon one's kinsmen
-should not be lost sight of.
A number of cases have been cited before us
to show that in recording the custom the language used was of peremptory nature
and yet the Courts have held that 49 the declarations were merely directory and
non-compliance with those declarations did not invalidate the custom.
In Jiwan Singh and Another v. Pal Singh and
Another(1) Shah Din and Beadon JJ. held "that by custom among Randhawa
Jats of Mauza Bhangali, Tahsil Amritsar, the adoption, by a registered deed, of
a collateral in the 9th degree who is of 16 years of age is valid in the
presence of nearer collaterals." The adoption was objected to on the
ground that the adoptee was a remote collateral and that he was not under the
age of twelve at the time of the adoption as required by the Riwaj-i-am. The
learned Judges held that the provision as regards the age was recommendatory
and not of a mandatory character.
In Sant Singh v. Mula and Others ) Robertson
and Beadon Jj.
held "that among Jats and kindred tribes
in the Punjab, the general, though not 'the universal, custom is that a man may
appoint an heir from amongst the descendants of his ancestor and that he need
not necessarily appoint the nearest collateral." This was a case where a
distant collateral was preferred to a nearer collateral. The learned Judges
expressed the opinion that the clause which points to the advisability of
adopting from amongst near collaterals was nothing more than-advisory.
In Chanan' Singh v. Buta Singh and Others(3),
a case from Jullundur District, the question and answer were as follows :-
"Q. No. 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 ? A......... 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 the fact of the adoption. Sweets are
distributed and a deed of adoption is also drawn up. If (1) 22 P.R. 1913. P.
(2) 44 P.R. 913. P. 73.
(3) A.I.R. 1935 Lah. 83.
7 50 these formalities are not observed the adoption
is not considered valid." The adoption was challenged on the ground that
there was no gathering of the brotherhood. The learned Judges (Addison and
Beckett JJ.) held that it was immaterial whether there was or was not a
gathering of the brotherhood at the time.
It appears that the adopter had made a
statement in Court acknowledging the appointment or adoption in question. The
next day he celebrated the marriage of the boy as his son, and thereafter he
looked after his education and allowed him to describe himself as his adopted
son or appointed heir, and the boy lived with him as his son. The learned
Judges held that the details given in the answers to questions in various
Customary Laws were not necessarily mandatory but might be merely indicatory.
In Jowala v. Dewan Singh(1) Tek Chand J. held
"that an adoption of a collateral in the fourth degree, among Jats of
Mauza Hussanpur, Tahsil Nakodar, District Jullundur, is valid although nearer
collaterals are alive." He also held "that an entry in the Riwaj-i-am
as to the persons who can be adopted is merely indicatory".
In a case from Delhi reported in Basant Singh
and Others v. Brij Raj Saran Singh(2)the Privy Council held "that the
restriction in the Riwaj-i-am of adoption to persons of the same gotra is
recommendatory and a person of a different gotra may be adopted." Counsel
for the appellants frankly conceded that he could cite no case where the
declarations governing customary adoptions were held to be mandatory.
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 adopter and some of
the rules have, therefore, 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 (1) 166 I.C. 237.
(2) 57 All, 494.
51 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.
There is no substance in the appeal and we
dismiss it with costs.