Inder Singh Vs. Gurdial Singh [1961] INSC
147 (10 April 1961)
DAS, S.K.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1967 AIR 119 1962 SCR (1) 845
ACT:
Adoption--Custom--Jats of Ludhiana--If
general treatment as son essential.
HEADNOTE:
N, a Jat of Ludhiana district, was the last
male holder of the property in dispute. He adopted the appellant before the
village panchayat by distributing and executed a deed of adoption in his
favour. For a short period N lived with the appellant. A few weeks later N left
the appellant, cancelled the deed of adoption within five months and repudiated
any association with the appellant as his son. N died three years later. The
appellant claimed the properties of N contending that he had been validly adopted
by N and that the adoption once validly made could not be revoked.
Held, that the appellant was not validly
adopted by N. The formalities necessary for customary adoption in accordance
with the rules prevalent amongst jats of Ludhiana district are: (i) a
declaration of adoption and (ii) general treatment of the appointed heir as a
son. A mere declaration or even the execution of a deed of adoption
unaccompanied by precedent or subsequent treatment as son is insufficient. In
this present case the second formality was lacking There was no evidence that N
treated the appellant as his son; on the contrary there was evidence to show
that he repudiated the declaration that lie had made earlier.
Gurbachna v. Bujha, (1911) 46 Punj. Record
151, Baj Singh v. Pratap Singh, (1923) 77 I. C. 473, Chhajju v. Mehr Singh,
(1930) 31 P.L.R. 997, Chanan Singh v. Buta Singh, A.I.R. 1935 Lah. 83 and
Kishen Singh v. Taru, A.I.R. 1949 East Punjab 342, referred to.
CIVIL APPELLATE JURISDICTION,., Civil Appeal
No. 141 of 1956.
Appeal from the judgment and decree dated
September 2, 1954, of the Punjab High Court at Chandigarh in Civil Regular
Second Appeal No. 337 of 1952.
Achhru Ram, R. Ganapathy Iyer and G.
Gopalakrishnan, for the Appellant.
S. P. Sinha and V. N. Sethi, for the
respondents.
1961. April 10. The Judgment-of the Court was
delivered by 846 S. K. DAS, J.-This is an appeal on a certificate granted by
the High Court of Punjab on March 7, 1955. The only question which falls for
decision is whether Inder Singh, plaintiff in the court of first instance and
appellant herein, was validly adopted by one Nathu in accordance with the rules
of customary adoption prevalent amongst Jats of the Ludhiana district in the
State of Punjab.
The relevant facts are these. Nathu, the last
male holder of the property in dispute, was a Jat of Ludhiana, district.
He was blind, not married and had no issue.
He was a resident, of village Mohanpur. Inder Singh, a resident of the same
village, was his nephew by collateral relation of the fifth degree. Inder
Singh's case was that he looked after Nathu since his childhood and on March
24, 1946, Nathu adopted him, according to the custom prevalent amongst them,
before the village Panchayat by distributing "gur" (jaggery) and on
the next day, that is, March 25, 1946, Nathu executed a deed of adoption in his
favour and got it registered on the same day. For a, short period thereafter
Nathu lived with Inder Singh. Then Gujar Singh, defendant in the suit-, who was
a nearer collateral of Nathu, gained influence over the, latter. Nathu left
lnder Singh and on September 6, 1946, cancelled the deed of gift. Nathu died
three years after, that is on October 27, 1949. On Nathu's death Gujar Singh
got the property of Nathu mutated in his name in the revenue records. Inder
Singh then brought the suit out of which this appeal has arisen for possession
of the property of Nathu Singh, which consisted of about 16 bighas odd of land
and a house, on the footing that he was the adopted soil of Nathu. The suit was
contested by Gujar Singh who alleged inter alia that Inder Singh was not
validly adopted by Nathu in accordance with the custom prevalent amongst the
Jats of Ludhiana.
The trial Judge held that the story of the
alleged adoption before the village Panchayat was not substantiated and the
recitals in the deed of adoption were incorrect. He further found that
according to 847 the customary rules of adoption the deed of adoption could not
have any effect unless after its execution there was a continuous course of
conduct showing that Nathu treated Inder Singh as his son; and inasmuch as
there was no evidence to show such association, Inder Singh had failed to make
out his case. The suit was, accordingly, dismissed.
Inder Singh then preferred an appeal. which
was heard by the District Judge of Ludhiana. On a consideration of the evidence
the learned District, Judge came to the conclusion that it established that
Nathu did declare Inder Singh as his heir before the village Panchayat on or
about March 24, 1946, and that Nathu lived with Inder Singh for a very short
period thereafter. This, in the opinion of the learned District Judge, was
sufficient to establish a valid adoption according to the customary rules and
no further evidence, of association as father and son between the two was
necessary.
In this view of the matter, the learned
District Judge held that the cancellation of the deed of adoption by Nathu on
September 6, 1946, was of no effect, because an adoption once validly made
could not be revoked. Accordingly, he allowed the appeal.
Gujar Singh died sometime after the appellate
decision, and the present respondents as heirs and legal representatives of
Gujar Singh carried a second appeal to the Punjab High Court. The learned
Judges of the High Court held that the rules of customary adoption prevalent
amongst the parties required two essential elements: (a) an intention to
appoint an heir and (b) an act of association between the two as father and
son. They hold that the short period of about six weeks during which Nathu
lived with the appellant after the execution of the deed of adoption was not
sufficient to prove that Nathu treated Inder Singh as his future heir;
there was, therefore, no such association as
would make, the adoption valid according to the customary rules
prevalent'amongst the Jats of Ludhiana district. On this view the High Court
set aside the judgment and decree of the learned District Judge and restored
those of the court of first instance.
848 The judgment being a judgment of reversal
and the value of the property in dispute more than Rs. 20,000 the High Court
gave a certificate under Art. 133 of the Constitution read with ss. 109 and 110
of the Code of Civil Procedure. On that certificate the present appeal has come
to us.
The finding of the Learned District Judge
that the evidence on record established that Nathu declared Inder Singh as his
heir before the village Panchayat on or about March 26, 1946, is clearly a
finding of fact and binding in second appeal. The correctness or otherwise of
that finding cannot now be canvassed. The controversy in the High Court as also
before us centered round the question whether under the customary rules of
adoption prevalent amongst the Jats of Ludhiana, a second element for a valid
adoption, namely, an act of association or a general treatment of the appointed
heir as a son is essential.
Mr. Achhru Ram appearing on behalf of the
appellant has contended that the view expressed by the learned District Judge
is the correct view. He has referred us to the general statement of the
customary rule in the matter of the appointment of an heir in paragraph 35 at
p. 50 of Rattigan's Digest of Customary Law (seventh edition). That paragraph,
with Explanation 1, reads as follows:
"35. A sonless propietor of land in the
central and eastern parts of the Punjab may appoint one of his kinsmen to
succeed him as his heir.
Explanation 1. Such an appointment may be
manifested, in the absence of any special custom prescribing a different mode,
in any of the following ways By (a) a formal declaration, before the
brother-hood, (b) a written declaration, either preceded or followed by some
treatment consistent with a deliberate appointment, or (c) a long course of
treatment evidencing an unequivocal intention to appoint the specified person
as heir." The argument of learned Counsel is that according. to general
rule stated above, the appointment of an heir by adoption may be manifested in
one of the following ways: (a) by a formal declaration, before the 849 brotherhood,
(b) by a written declaration, either preceded or followed by some treatment
consistent with a deliberate appointment or (c) a long course of treatment
evidencing an unequivocal intention to appoint the specified person as heir.
Learned Counsel contends that in view of the finding of the learned District
Judge that a formal declaration of the adoption was made by Nathu before the
village Panchayat, there was a sufficient manifestation of the appointment. He
has submitted that a somewhat different rule embodied in the thirteenth edition
of Rattigan's Digest as revised by 0. P. Aggarwala is not a correct statement
of the law; the statement there being that the two elements which are essential
to constitute the factum of adoption are (i) an intention to appoint an heir
and (ii) an act of association (see p. 497). We consider that it is unnecessary
in this case to examine the more general question of the exact scope and ambit
of the rule in other parts of the Punjab; for we have unimpeachable evidence of
the scope of the rule in the district of Ludhiana. In the Customary Law of the
Ludhiana District (rewaj-i-am), compiled and attested by J. M. Dunnett,
Settlement Officer, the formalities of customary adoption amongst Jats of the
Ludhiana district are stated in the form of the following question and answer
(see p. 102):
"Question 68. What formalities are
necessary for adoption? Answer-As adoption is not a religious ceremony, no
special formalities are considered necessary. The adopter usually calls the
neighbours and his relations together, and distributes gur, saying that he has
adopted (god lia) so and so. Sometimes a deed of adoption is executed. But a
declaration of adoption and general treatment as a son are looked upon as
sufficient." The compiler then observes:
" Case-law agrees. It is
well-established principle that customary adoption requires absolutely no
formalities................. The evidence required to establish the factum of
adoption is merely evidence 107 850 of intention clearly expressed and treatment
shown.
In 79, Punjab Record of 1882 (Jats of Mauza
Baga Kalan tahsil Samrala) the execution of a deed and general conduct were
held sufficient, but in 94, Punjab Record, 1893, among Dhaliwal Jats, the mere
execution of a deed unaccompanied by precedent or subsequent treatment was held
insufficient." Mr. Achhru Ram has very fairly conceded that the statement
of customary law of the Ludhiana district in the rewaj-i-am is authoritative,
though the many details mentioned in the answers given are not necessarily
mandatory. It is clear, however, that so far as the Jats of Ludhiana district
are concerned, the formalities necessary for adoption are, firstly, a
declaration of adoption and, secondly, general treatment of the appointed heir
as a son. A mere declaration or even the execution of a deed of adoption
unaccompanied by precedent or subsequent treatment is insufficient. That being
the position, the High Court was clearly right in its decision.
The same position is established by the
authorities bearing on the subject. The earliest decision to which our
attention has been drawn is Gurbachna v. Bujha(1). In 'that case it was stated
that where the power of customary adoption by a sonless proprietor was not
disputed, all that was necessary to constitute an adoption was the clear
expression of an intention on the part of the adoptive father to adopt the boy
concerned as his son and a sufficient manifestation of that intention by the
execution and registration of a deed of adoption coupled with a clear declaration
in court and subsequent treatment as adopted son. It was pointed out, however,
that in a case where soon after the execution of the deed of adoption the reversionary
of the adoptive father brought a suit, it was not reason.
able to demand proof of subsequent treatment.
In the case before us, Nathu died three years after the execution of the deed.
He left Inder Singh a few weeks after the execution of the deed, cancelled the
deed within about five months and instead of treating (1) (1911) 46 Punjab Record
151.
851 Inder Singh as his son repudiated any
such association with him. In these circumstances the High Court rightly hold
that there was no sufficient manifestation of the intention to adopt Inder
Singh as his son by Nathu. In Baj Singh v. Partap Singh (1) it was observed:
"There is ample authority for holding
that the appointment in order to be valid must be made in some unequivocal and
customary manner and the execution of a deed coupled with a long.
course of treatment has always been recognised
as one of the modes of manifestating such an appointment." In Chhajju v.
Mehr Singh (2) it was held 'that the execution of a deed by the adoptive father
was not enough and continuous subsequent treatment not having been proved, the
adoption was not established. In Chanan Singh v. Buta Singh (3) the decision
proceeded on the customary law of the district of Jullundur and on that basis
it was held that the appointment should be manifested by some declaration or
course of treatment evidencing an unequivocal intention to appoint a specified
person as heir; it was pointed out that the question and answer recorded in the
rewaj-i-am concerned showed that the essence of the customary rule was that it
should be clearly declared. Their Lordships were dealing with a case in which
there was not merely a public declaration in court but also subsequent
treatment of the appointed heir as a son by the adoptive father. In Kishan
Singh v. Taru (4) it was observed that all that was necessary to constitute an
adoption under customary law was the clear expression of intention on the
adoptive father's part to adopt the boy concerned as his son, and the execution
of the deed of adoption coupled with a clear declaration before a registering
officer and continuous subsequent treatment as adopted son were sufficient
manifestation of the intention.
We are of the view that the High Court
rightly held that in the circumstances of this case the declaration made by
Nathu before the village Panchayat (1) (1923) 77 I.C. 473. (2) (1930) 31 P.L.R.
997.
(3) A.I.R. 1935 Lah. 83. (4) A.I.R. 1949 East
Punjab 342.
852 on March 24, 1946, and the execution of a
deed of adoption which he cancelled within a short time were not a sufficient
manifestation of the intention of Nathu to adopt Inder Singh as his son. There
was no evidence that Nathu Singh treated, Inder Singh as his son; on the
contrary, there was evidence to show that he repudiated the declaration that he
had earlier made.
For the reasons give above, we see no merit
in the appeal which is, accordingly, dismissed with costs.
Appeal dismissed.
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