Salig Ram Vs. Munshi Ram & ANR
[1961] INSC 108 (21 March 1961)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
CITATION: 1961 AIR 1374 1962 SCR (1) 470
CITATOR INFO :
R 1966 SC1555 (4) RF 1991 SC1654 (60)
ACT:
Punjab Customary Law-Customs in Amritsary
district-Adopted son's right to inheritance in his natural family-Brahmin and
Khatri community-Punjab Laws Act, 1872 (Punj. 4 of 1872), s. 5.
HEADNOTE:
M, a Hindu belonging to the Brahmin community
in the Amritsar District of Punjab, instituted a suit for the possession of a
half share in the property left by his natural paternal grandfather. His father
had predeceased him, but another son of his grandfather was alive. He had been
adopted away in a different family but he claimed that according to the custom
of his community in the district he was entitled to get his share in the estate
of his natural grandfather. The based his claim on the principle of
representation that he, stepped into the shoes of his natural father.
Held, that under s. 5 of the Punjab Laws Act,
1872, the law applicable to Hindus in Punjab in respect of questions regarding
succession and other matters referred to in that section, is Hindu law in the first
instance, but where a custom different from Hindu law is proved then the rights
of the parties would be governed by that custom; and whosoever asserts a custom
at variance with Hindu law has to prove it, though the quantum of proof
required in support of the custom which is general and well recognised may be
small while in other cases of what are called special customs the quantum may
be larger.
Held, further, that in the Amritsar district
of Punjab amongst Brahmins and Khatri s, a son given away in adoption can
succeed to the property of his natural father if there is no other son of the
natural father, but if there is another son he cannot succeed.
Held, also, that in the present case neither
under Hindu law nor under the customary law of Punjab could M succeed to the
property of his natural grandfather.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 461 of 1957.
Appeal by special leave from the judgment and
decree dated July 5, 1954. of the Punjab High Court in L. P. A. No. 29 of 1953.
N. S. Bindra and Sardar Singh, for the
appellant.
P. D. Ahuja and H. P. Wanchoo, for respondent
No. 1.
471 1961. March 21. The Judgment of the Court
was delivered by WANCHOO, J.-This is an appeal by special leave from the
judgment of the Punjab High Court and arises out of a suit for possession of
land brought by Munshi Ram, respondent.
The following pedigreetable will be useful in
understanding the claim put forward by the respondent:- Heman Karori Laghi
Maghi Jai Dayal (issueless) Gobind Ata Nanak Chand Santu Munshi Ram (adopted
son) plaintiff Hans Raj Salig Kam ( Defdt.) MunshiRam (adopted by Ata) The
claim of Munshi Ram was with respect to the property left by Nanak Chand who is
his natural grandfather and also Santu. There is no dispute now about the
property of Santu and we are concerned in this appeal only with the property of
Nanak Chand. Nanak Chand died in 1939. Munshi Ram's natural father Hans Raj had
predeceased Nanak Dhand. Munshi Ram himself was adopted by Ata in 1918 before
the death of his natural father Hans Raj which took place in 1920. It will be
clear from these dates therefore that Hans Raj never succeeded to the property
of his father Nanak Chand and Munshi Ram had been adopted by Ata even before
Hans Raj's death. The case of Munshi Ram was that he was entitled to one-half
share of the property left by Nanak Chand as his theirs, according to Zamindara
custom. The parties, it may be Mentioned, are Brahmins and Munshi Ram claimed
joint possession of the half share of the property left by Nanak Chand on his
472 death. The suit was resisted by Salig Ram (defendant- appellant) who is the
other son of Nanak Chand. His case was that Munshi Ram was not entitled either
according to personal law or the riwaj-i-am of Amritsar district to any share
in the property left by Nanak Chand. The trial court held that Munshi Ram was
entitled to succeed to the property left. by, Nanak Chand along with Salig Ram
and decreed the suit accordingly Salig Ram went in appeal to the District Judge
but failed. He then went in second appeal to the High Court but the second
appeal was also dismissed The High Court having refused to grant a certificate
the appellant applied to this Court for special leave which was granted;
and that is how the matter has come up before
us.
In questions regarding succession and certain
other matters, the law in the Punjab is contained in s. 5 of the Punjab Laws Act,
No. IV of 1872. Clause (b) of that section provides that the rule of decision
in such matters shall be the Hindu law where the parties are Hindus, except in
so far as such law has been altered or abolished by legislative enactment, or
is opposed to the provisions of this Act or has been modified by any such
custom as is referred to in cl. (a) thereof. Clause (a) provides that any
custom applicable to the parties concerned, which is not contrary to Justice,
equity or good conscience, and has not been by this or any other enactment
altered or abolished and has not been declared to be void by any competent
authority shall be applied in such matters. The position therefore that emerges
is, where the parties are Hindus, the Hindu law would apply in the first
instance and whosoever asserts a custom at variance with the Hindu law shall
have to prove it, though the quantum of proof required in support of the custom
which is general and well recognised may be small while in other cases of what
are called special customs the quantum may be larger. As was pointed out by
Robertson, J., as far back as 1906 in Daya Ram v. Sohel Singh and others (1),
"in all cases under s. 5 of the Punjab Laws Act, it lies upon the person
asserting that he is ruled (1) 1906 P. R. No. 110.
473 in regard to a particular matter by
custom, to prove that he is so governed, and not by personal law, and further
to prove what the particular custom is. There is no presumption created by the
clause in favour of custom; on the contrary it is only when the custom is
established that it is to be the rule of decision." These observations
were approved by the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero and
another (1). The same view has been taken by this Court in Ujagar Singh v. Mst.
Jeo (2).
We have therefore in the first instance to
apply Hindu law to the parties to this suit, and it is only when a custom
different from Hindu law is proved that rights of the parties would be governed
by that custom. Munshi Ram's case was that he was adopted by Ata according to
custom (i.e., in accordance with the mode prevalent in the community for
purposes of adoption) during the lifetime of Hans Raj. Thus Munshi Ram having
been adopted by Ata would have no right left in the family of his natural
father Hans Raj, unless the adoption was in the dvyamushyayana form. It was
however never the case of Munshi Ram that the adoption was in dvyamushyayana
form and so far as Hindu law is concerned, if it applies to this case Munfshi
Ram would not be entitled after the adoption to succeed to the property left by
Nanak Chand.
But Munshi Ram's case was that according to
Zamindara custom he was entitled to succeed to half of the properties left by
Nanak Chand. The question therefore arises: what the Zamindara custom is in the
present case. In the plaint the custom was not actually pleaded, though
strictly speaking this should have been done. However, the custom that is
relied upon is to be found in para. 48 of the Digest of Customary Law in the
Punjab by Rattigan at p. 572, 13th Edition. This paragraph appears in section V
dealing with "Effect of Adoption on Succession" and is in the
following terms:- "An heir appointed in the manner above described ordinarily
does not thereby lose his right to succeed (1) (1917) L. R. 45 I. A. 10, 13.
(2) [1959] SUPP. 2 S.C. R. 781 60 474 to property in his natural family, as
against collaterals, but does not succeed in the presence of his natural
brothers." It is not disputed before ,is that para. 48 applies in the case
of adoption also; but what is contended on behalf of the appellant is that
para. 48 only mentions a custom prevalent throughout the Punjab while the
riwaj-i-am of Amritsar district from which area the parties come also records a
custom confined to that area which really governs the parties. It appears that
in 1865 the riwaj-i-am of Amritsar district stated that "an adopted son
will not be a co-sharer amongst his brothers, in the property left by his natural
father", i.e., a son given away in adoption will not inherit in the
natural father's family. We may in this connection refer to Jai Kaur and others
v. Sher Singh and others (1), where this Court held that- "there is
therefore an initial presumption of correctness as regards the entries in the
Riwaj-i-am and when the custom as recorded in the Riwaj-i-am is in conflict
with the general custom as recorded in Rattigan's Digest or ascertained
otherwise, the entries in the Riwaj-i-am should ordinarily prevail except that
as was pointed out by the Judicial Committee of the, Privy Council in a recent
decision in Mt. Subhani v. Nawab (2), that where, a,% in the present case, the
Riwaj-i-am affects adversely the rights of females who had no opportunity
whatever of appearing before the revenue authorities, the presumption would be
weak, and only a few instances would suffice to rebut it." As females are
not concerned in this case, the entries in the riwaj-i-am of Amritsar district
in 1865, if they conflict with para. 48 of Rattigan's Digest,, should prevail.
On that view Munshi Ram would have no right to succeed in the family of his
natural father after he was adopted by Ata. The High Court, however, pointed
out that there were decisions of courts which did not accept the riwaj-i-am of
Amritsar district of 1865 as laying down the correct custom and therefore para.
48 of the Digest by Rattigan would still prevail.
(1) A.I. R. 1960 S.C. 1118.
(2) A.I.R. 1941 P.C. 21.
475 In this connection the High Court relied
on Majja Singh and others v. Rain Singh (1). That was however a case of Jats
and not of Brahmins and the person who was adopted in that case was an only
son. That case would not therefore necessarily override the custom so far as it
applies to Brahmins. In any case the position is made clear by the Manual of
Customary Law prepared in 1911-12 by Mr. Cralk.
The custom recorded in that compilation is
that with the exception of Brahmins and Khatris, an adopted son does not retain
his right to inherit from his natural father, even if the latter dies without
leaving any other son. The High Court however pointed out that the Brahmin,,;
and khatris did not accept this custom; but it failed to notice a further
paragraph in answer to that very question where it was pointed out that among
Brahmins and Khatris the same custom prevailed except that where there was no
other son, the son who was adopted in another family would succeed to the
property of his natural father. In 1940 the customary law of Amritsar district
was again compiled and the custom recorded is that an adopted son loses his
right to inherit from his natural father but if the latter dies without other
sons the adopted son cannot inherit as a son but may inherit collaterally as a
successor of his adoptive father.
The position as it emerges from a comparison
of the entries in the riwaj-i-am of 1865, 1911-12 and 1940 is somewhat confused
and the High Court therefore thought that the custom recorded in para. 48
should be adhered to as Brahmins and Khatris did not accept the extreme
position that as on given away in adoption was excluded altogether from
succeeding in his natural father's family as recorded in 1911,12. This
conclusion seems to be fortified by the statements of Brahmins and Khatris in
1911-12 that a son given away in adoption succeeded in the family of his
natural father if he had no brothers-though the High Court did not notice this
part of the answer in the riwaj-i-am of 1911-12. The conclusion therefore at
which we arrive is that amongst Brahmins and (1) 1879 P.R. No. 43- 476 Khatris
of Amritsar district, a son given away in adoption can succeed to the property
of his natural father only if there is no other son of the natural father; if
there is another son he cannot succeed.
Now let us see how this proposition works out
in the present case. In this case Munshi Ram was claiming to succeed not to the
property of Hans Raj, his natural father, but, to the property of Nanak Chand
his natural grandfather. If the case was for succession to the property of the
natural father, namely, Hans Raj, the custom might have favoured Munshi Ram,
for Hans Raj had no other son and Munshi Ram would thus have succeeded to the
property of Hans Raj. But Hans Raj, having died in the lifetime of his father
(Nanak Chand), never succeeded to the property of his father. The High Court,
however, thought that on the principle of representation Munshi Ram stepped
into the shoes of Hans Raj and therefore was entitled to succeed to the estate
left by Nanak Chand as his father would have succeeded if he had been alive at
the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the
application of the principle of representation it would follow that Munshi Ram
would really be deemed to be Hans Raj at the time of the death of Nanak Chand.
In that case the position would be that Nanak Chand would have died leaving two
sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram
having been adopted away and there being another son of Nanak Chand, even the custom
recorded in para. 48 would exclude Munshi Ram because then there would be a
brother of Munshi Ram alive in the family of Nanak Chand and this brother would
succeed in exclusion of Munshi tam who would be representing his father. The
argument on behalf of Munshi Ram is that though for the purpose of
representation Munshi Ram would be treated as if he stood in the shoes of his
father, the representation could not go further and it could 'not be held that
there were two sons of Nanak Chand living it the time of his death, one of whom
in the guise of Munshi Ram was adopted away. We cannot accept this 477
argument; and if Munshi Ram is to succeed on the principle of representation
that principle must be fully worked out and he must for all intents and purposes
be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was
adopted away and has a brother in the shape of Salig Ram he would not succeed
even under the custom recorded in para. 48 of Rattigan's Digest. The position
therefore is that neither under Hindu law nor under the custom recorded in
para. 48 can Munshi Ram succeed to the property of Nanak Chand. We therefore
allow the appeal and set aside the decree of the courts below and dismiss the
suit of the plaintiff-respondent so far as the property of Nanak Chand is
concerned. In the circumstances we also order the parties to bear their own
costs throughout as the High Court did.
Appeal allowed.
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