Arjan Singh & Ors Vs. Narain Singh
& Ors [1963] INSC 32 (12 February 1963)
12/02/1963
ACT:
Customary Law-Jats of Tehsil Zira of
Ferozepore District--Adoption--Formal adoption in Hindu Law and customary
appointment of an heir--Difference--Effect of appointment of heir on connection
with natural family.
HEADNOTE:
Harnam Singh died leaving behind two
daughters. They also died without leaving any issue surviving them. The Revenue
authorities ordered that the entire estate of Harnam Singh be entered in the
revenue records in the names of the defendants.
The plaintiffs filed a suit for possession of
the estate of Harnam Singh. Their contention was that notwithstanding the
adoption of Ghuda Singh, their predecessor, by his maternal uncle, they as
descendants of Ghuda Singh were not excluded from inheritance to the estate of
a member in the natural family of Ghuda Singh. It was also contended that the
family of the plaintiffs and Harnam Singh was governed by Zamindara Riwaj-i-am
by virtue of which a son adopted in another family and his decendants did not
lose their right to inherit in the natural family because by the adoption
according to the custom of the community, the adopted son did not completely
sever his connection with his natural family.
The contention of defendants-appellants was
that in the District of Ferozeporc, every adoption in a Hindu family was formal
and according to the Riwaj-i-am of the District, an adopted son was excluded
from the right to inherit in his natural family. Consequently, Ghuda Singh, who
was adopted by Bhan Singh, could not inherit the estate because his adoption
operated as complete severance from the natural family.
The suit was dismissed by the Subordinate
judge and his order was confirmed by the District judge. However, the High
Court set aside the order of the District judge and held that the record
disclosed no evidence that the adoption of Ghuda Singh was formal and hence it
must be presumed that the adoption was a customary appointment of an heir and
not a formal -adoption under the Hindu Law. It was also held that there was
overwhelming authority in favour of the proposition that by reason of a
customary adoption, the adopted 20 son and his descendants were not excluded
from the right to inherit to collaterals in the natural family. The plaintiffs
as grandsons in the male line of Ghuda Singh were entitled to inherit the
estate. The appellants came to this Court by a certificate of fitness granted
by High Court.
Held, that the view of the High Court was
correct. A person adopted according to the customs of the community, i.e. who
is appointed as a heir to inherit the property of a person outside the family,
does not. by virtue of such appointment, lose his right to inherit in his
natural family except the right to inherit the property of his natural father
when there are natural brothers. The natural brothers would take the property
to the exclusion of such an adopted son and his defendants.
Daya Ram v. Sohel Singh (1906) P. R. No. 110
(F.B.), Abdul Hussain Khan v. Bibi Sona Dero 1917) L.R. 45 I .A. 10, Vaishno
Ditti v. Rameshri (1928) L. R. 55 I. A. 407, Mela Singh v. Gurdas, (1922) 1. L.
R. 3 Lah. 362, Jagat Singh v.
Ishar Singh 30) I. L. R. 11 Lah. 615, Kanshi
Ram v. Situ (1934) I. L. R.16 Lah. 214, Rahmat v. Ziledar (1945) 1. L.
R.26 Lah. 504 and Jai Kapur v. Sher Singh,
[1960] 3 S. C.
R.975, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 223 & 224 of 1961.
Appeals from the judgment and decree dated
April 25, 1956.
of the Punjab High Court in Civil Regular
Second Appeals Nos. 158 and 159 of 1949 respectively.
N. S. Bindra and K. L. Mehta, for the
appellants.
Gurbachan Singh, Harbans Singh and M. L.
Kapur, for the respondents (in C. A. No. 224/61).
1963. February 12. The judgment of the court
was delivered by SHAH J. These appeal arise out of two suits relating to
certian agricultural lands situate in village Umri Ana, tehsil Zira District
Ferozepore in the Punjab. The dispute relates to the right to inherit the
estate of one Hamam Singh who was the last male holder. The -disputing parties
are descended from Sahib Singh' as disclosed by the following genealogy 21
Sahib Singh | |-----------------------------------------------------| | Hamir
Singh Wazir Singh | Attar Singh |--------------|------------| | Chuhar Singh
Ghuda Singh Kahan Singh | | | | Mangal Singh | | | Daughter |----------------|
| |---------------------| Mst. Bishno Ramji Singh Dasau| Tehl Singh Arjan Singh
(married) | ndha | (Defdt.2) (Defdt.1) Singh | Singh | again) ------| | Narain
Singh | | (Pltff.) | |----------------|--------------| | Bakhshish Ajaib
Mukhtar | Singh Singh Singh | (Pltff.) (Pltff.) (Pltff.) | |
---------------------------------| | | Roor Singh Bhola Singh | | Harman Singh
| | |--------------------------------------| | | Mst. Tejo Mst. Gejo (Died
without issue) (died without issue) 22 Harnam Singh grandson of Kahan Singh
died leaving him surviving two daughters Mst. Tejo and Mst. Gejo and no male
lineal descendant. The property of Harnam Singh devolved upon his two daughters
in equal shares. On the death of Mst. Tejo without issue the entire estate was
entered in the name of Mst. Gejo by the revenue authorities. Mst. Gejo also
died in 1942 without leaving any issue surviving her. By order dated September
6, 1945 the Assistant Collector directed that the entire estate be entered in
the name of Narain Singh s/o Dasaundha Singh and Bakshish Singh, Ajaib Singh
and Mukhtar Singh sons of Ramji Singh-who will hereinafter be referred to
collectively as 'the plaintiffs.' In appeal to the Collector of Ferozepore the
order of the Assistant Collector was set aside and the estate was directed to
be entered in the names of Tehl Singh and Arjan Singh sons of Mangal Singh--who
will hereinafter be referred to collectively as 'the defendants.' The
Commissioner of the Division confirmed the order of the Collector.
The plaintiffs who are the descendants of
Ghuda Singh then instituted suit No. 9/1947 in the Court of the Subordinate
judge, Zira for a decree for possession of the estate of Harnam Singh, barring
a small area of 8 Kanals and 11 MarlasKhasra No. 325--which was in their
possession. The defendants who are the descendants of Wazir Singh in their turn
commenced an action (Suit No. 13/1947) for possession of Khasra No. 325 against
the plaintiffs. Each side claimed title to the estate of Harnam Singh according
to the customary law applicable to the Jats residing in tehsil Zira, District
Ferozepore. It was the case of the plaintiffs that notwithstanding the adoption
of Ghuda Singh by his maternal uncle Bhan Singh, Ghuda Singh's descendants were
not excluded from inheritance to the estate of a member in the natural family
of Ghuda Singh It was submitted by the plaintiffs 23 that the family of the
plaintiffs and Harnam Singh was governed by Zamindara Riwaj-i-am (general
custom obtaining amongst the Zamindars) by virtue of which a son adopted in
another family and his descendants do not lose their right to inherit in their
natural family, because by the adoption according to the custom of the
community the adopted son does not completely sever his connections with his
natural family. The defendants, on the other hand, claimed that in the District
of Ferozepore every adoption in a Hindu family is 'formal' and according to the
Riwaj-i-am of the District an adopted son is excluded from the right to inherit
in his natural family. Consequently Ghuda Singh, who was adopted by Bhan Singh,
could not inherit the estate of Hamir Singh, his adoption operating as a
complete severance from the natural family. The sole dispute between the
parties was, therefore, as to the customary law applicable to the rights of a
son adopted in a jat family residing in tehsil Zira, District Ferozepore.
The two suits were consolidated for trial.
The Subordinate judge held that all ceremonies relating to adoption were
performed and Ghuda Singh ceased to be a member of the family of his natural
father according to the custom prevailing in the District and the plaintiffs
who were the descendants of Ghuda Singh could not inherit the estate of Hamir
Singh. In so holding he relied upon the manual of Riwaji-i-am of Ferozepore
District prepared in 1914, which, in his view, recorded that when any adoption
in the District takes effect the adopted on adoption son stand transplanted to
the family of the adopter. In appeal the District Court, Ferozepore held that
in the case of Jats of Ferozepore District by special custom prevailing in the
District, the adopted son bad the right to inherit collaterally in the family
of his adoptive father only and could not inherit collaterally in his natural
father's family. In second appeal the High Court of Punjab set aside the decree
passed 24 by the District Court. In the viewof the High Court the record
disclosed no evidence that the adoption of Ghuda Singh made by his maternal
uncle Bhan Singh was formal and in the absence of any such evidence it must be
presumed that the adoption was a customary appointment of an heir and not a
formal adoption under the Hindu Law and that there was overwhelming authority
in favour of the proposition that by reason of a customary adoption the adopted
son and his descendants were not excluded from the right to inherit to
collaterals in the natural family. The High Court accordingly held that the
plaintiffs, as grandsons in the male line of Ghuda Singh, were entitled to
inherit the estate of Hamir Singh. With certificate of fitness granted by the
High Court, these two appeals are preferred by the defendants.
It is common ground that Ghuda Singh was
adopted some time before 1856 by Bhan Singh, his maternal uncle. The dispute
between the parties has to be resolved by applying the customary law applicable
to the parties, because s. 5 of the Punjab Laws Act, 1872 which governs the
parties provides that :
"In questions regarding succession,
special property of females, betrothal and marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills, legacies, gifts,
partition, or any religious usage or institution, the rule of decision shall be(a)
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 25 (b) The Muhammadan Law in cases where the parties are
Muhammadans, and the Hindu Law, in cases 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 above referred to." In Daya Ram v. Sohel Singh (1),
Rober son, J., (at P. 410) in dealing with the true effect of s. 5 observed :
"In all cases it appears to me under
this Act, it lies upon the person asserting that he is ruled 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. The Legislature
did not show itself enamoured of custom rather than law, nor does it show any
tendency to extend the "Principles' of custom to any matter to which a
rule of custom is not clearly proved to apply.
It is not the spirit of customary law, nor
any theory of custom or deductions from other customs which is to be a rule of
decisions, but only 'any custom applicable to the parties concerned which is
not......... and it "therefore' appears to me clear that when either party
to a suit sets up 'custom' as a rule of decision, it lies upon him to prove the
custom which he seeks to apply; if he fails to do so clause (b) of s. 5 of the Punjab
Laws Act applies, and the rule of decision must be the personal law of the
parties subject to the other provisions of the clause." This view was affirmed
by the judicial Committee (1) (1906) P.R. No. 110 (F.B.).
26 of the Privy Council in Abdul Hussein Khan
v. Bibi Sona Dero (1). In Vaishno Ditti v. Rameshri (2), the ,Judicial
Committee observed :
"x x x x their Lordships are of opinion
that in putting custom in the forefront, as the rule of succession, whilst
leaving the particular custom to be established, as it necessarily must be, the
Legislature intended to recognize the fact that in this part of India
inheritance and the other matters mentioned in the section are largely
regulated by a variety of customs which depart from the ordinary rules of Hindu
and Mohamedan law." The pleadings also disclose an unanimity that the
rights of the parties have to be adjudged in the light of the customary law applicable
and not by the rules of Hindu Law.
The relevant general custom which is
applicable in the matter of adoption is to be found in Rattigan's Digest of
Civil law for the Punjab, 13. Edn. p. 572 Article 48 "An heir appointed in
the manner above described ordinarily does not thereby lose his right to
succeed to property in his natural family, as against collaterals, but does not
succeed in the presence of his natural brothers." Article 49 :
"Nor, on the other hand, does the heir
acquire a right to succeed to the collateral relatives of the person who
appoints him, where no formal adoption has taken place, inasmuch as the
relationship established between him and the appointer is a purely personal
one." This adoption, according to Rattigan is irrevocable and an adopted
son cannot relinquish his status.
(1) (1917) L.R. 45. I.A. 10. 2) (1928) LR, 55
I.A. 107, 421.
27 Article 52 sets out the rights of the
adopted son. It states :
"The appointed heir succeeds to all the
rights and interests held or enjoyed by the appointer and, semble, would
succeed equally with a natural son subsequently born." There is a long
course of decisions in the High Court of Lahore and the High Court of Punjab in
which it has been held that the relationship between the appointed heir and the
appointer which is called adoption is purely a personal one and resembles the
Kritrima form of adoption of Hindu Law: Mela Singh v. Gurdas (1), Sir Shadi
Lal, C.J. observed in dealing with the effect of a customary adoption in the
Punjab :
"The tie of kinship with the natural
family is not dissolved and the fiction of blood relationship with the members
of the new family has no application to the appointed heir.
The relationship established between the
appointer and the appointee, is a purely personal one and does not extend
beyond the contracting parties on either side." Similarly in Jagat Singh
v. Ishar Singh (2), it was held that the reservation as to the adopted son not
succeeding in the presence of his brothers refers only to his succession to his
natural father but does not apply to cases of collateral succession in his
natural family A similar view was expressed in Kanshi Ram V. Situ (3), and
Rahmat v.
Ziledar (4). In the last mentioned case it
was stated :
"Under the general custom of the
province a person who is appointed as an heir to a third person does not
thereby lose his right to succeed to the property of his natural father.
But (1)(1922)I.L.R.3 Lah.362(F.B.)
(2)(1930)1.L.R.II Lah.615.
(3) (1934) 16 Lah. 214. (4) (1945) I.L.R. 26
Lab. 540.
28 the appointed heir and his lineal descendants
have no right to succeed to the property of the appointed heir's natural father
against the other sons of the natural father and their descendants. The
appointed heir can succeed to the property of his natural father when the only
other claimant is the collateral heir of the latter." But it is urged on
behalf of the defendants that the general custom applicable to the Punjab as
recorded by Rattigan is shown to be superseded by proof of a special custom of
the District recorded in the Riwaj-i-am of Ferozepore District prepared by Mr.
Currie at the settlement of 1914, and reliance is placed upon answers to
Questions 76 and 77 which deal with the effect of adoption. The Questions and
the Answers recorded are :
"Question 76--Does an adopted son retain
his right to inherit from his natural father ? Can he inherit from his natural
father if the natural father dies without other sons ? Answer-All agree that
the adopted son cannot inherit from his natural father, except as for as
regards such share of the property as would come to his adoptive father as a
collateral. Sodhis 'however' say that he can inherit his natural father's
estate if the latter has no male descendants, while the Nipale say the adopted
son inherits from both fathers.
Question 77-Describe the rights of an adopted
son to inherit from his adoptive father. What is the effect of the subsequent
birth of legitimate sons to the adoptive father ? Will the adopted son take
equal shares with them ? If natural legitimate sons be born subsequently to the
adoption where the chundawand system 29 of inheritance prevails, how will the
share of the adopted son, whose tribe differs from that of the adoptive
father,' inherit from him ? Does an adopted son retain his own got or take that
of his adoptive father ? Answer-An adopted son has exactly the same rights of
inheritance from his adoptive father as a natural legitimate son. The
inheritance would only be by chundawand, if that was the prevalent rule of the
family.
The Nipals, Rajputs, Arains, Moghals,
Sayyads, Gujjars and Muhammadan Jats state that if the adopted son is of a
different got he takes the got of his adoptive father ;
while if he is of a different tribe, he
cannot inherit.
As it is, as a rule aged men without hope of
sons who adopt, cases of the birth of legitimate sons after adoption has taken
place must be rare." When there is conflict between the general custom
stated in Rattigan's Digest of Customary Law and the Riwaj-i-am which applies
to a particular area it has been held by this Court that the latter prevails.
In Jai Kapur v. Sher Singh (1), it was observed "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 in Mt. Subhani v. Nawab [A.I.R. 1941 (1) [1960] 3 S.
C.,R, 975. 979.
30 (P. C.) 21], "that where, as 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." Therefore when there is a conflict between the record of custom made
in Rattigan's Digest of Customary Law and the local Riwaj-i-am, prima facie,
the latter would prevail to the extent of the inconsistency, and it would be
for the person pleading a 'custom or incident thereof different from the custom
recorded in the Rewaj-i-am to prove such custom or incident. Attention must,
therefore, be directed to the question whether there is in fact Any inconsistency
between' the custom recorded in Rattigan's Digest of Customary Law and the
relevant entries in the Riwaj-i-am. The general custom recorded in Rattigan's
Digest is apparently this : a person adopted according to the custom of the
community i.e.
who is appointed as an heir to' inherit the
property of a person outside the family does not, by virtue of such
appointment, lose his right to inherit the property in his natural family
except the right to -inherit the property of his natural father when there are
natural brothers. The natural brothers would take the property to the exclusion
of such an adopted son and his descendants. Question 76 in the Riwaj-i-am
primarily refers to the right of an adopted son to retain his right to inherit
the property of his natural father and the answer recorded is that the adopted
son cannot inherit the property of the natural father, except such property as
would devolve upon his adoptive father as a collateral (of the adopted son's
natural father). It is to be noticed that the question was directed to
ascertain the right of the adopted son to inherit the estate of his natural
father : it did not seek elucidation on the right of the adopted son to inherit
the estate of any collaterals of the natural 31 father, and the fact that in
the answer it was recorded that to the estate which would devolve upon his
adoptive father as a collateral of his natural father he has a right of
inheritance, strongly supports the view that the village elders in replying to
the question were only concerned with the right of an adopted son to inherit
the property of his natural father and were not concerned to dilate upon any
right to collateral succession in the natural family. The answer to question 77
also supports this view. When asked to describe the rights of an adopted 'on to
inherit the estate of his adoptive father, they replied that the adopted son
had exactly the same rights of inheritance from his adoptive father as a
natural legitimate son.
Mr. Bindra appearing on behalf of the defendants
submitted that questions 76 and 77 were in-tended to ascertain the custom of
the District relating to the rights of the adopted son in his natural family
and the family of his adoptive father and the answers must be read in that
light. We are unable to accept this suggested interpretation of Questions 76
and 77 and the information elicited thereby. The Riwaj-i-am appears to have
been carefully compiled by officers of standing and experience and it is clear
that they made a limited enquiry about the rights of an adopted son to inherit
the property of his natural father and of his adoptive father. There is
undoubtedly some conflict between the custom recorded in Rattigan's Digest and
the custom in the Riwaj-i-am. Whereas in Rattigan's Digest it is recorded that
an heir appointed in another family does not succeed to his natural father in
the presence of his natural brothers, in the Riwaj-i-am it is recorded that the
adopted son does not directly inherit the estate of his natural father in any
event, But we are not concerned with that' inconsistency in this case. It is
sufficient to observe that in Art. 48 of Rattigan's Digest, it is 32 recorded
that an heir appointed in the manner described (an adopted son) does not
thereby lose his right to succeed to property in his natural family : and
nothing inconsistent therewith is shown to be recorded in the Riwaj-i-am of the
District.
Mr. Bindra contended that in any event there
is clear evidence of instances of devolution of property in the family of the
parties indicating that a son adopted in another family was totally excluded
from inheritance in the natural family. Counsel relied upon Ext. D-5 an extract
from the register of mutations relating to certain agricultural lands in
village Umri Ana. It appears from that extract that on the death of Hamir Singh
the estate was in the first instance entered in the names of his three sons.
But Salig Ram, Patwari of the village, made a report on May 28, 1884 that Kahan
Singh and Chuhar Singh (two of the sons of Hamir Singh) claimed that Ghuda
Singh had never been in possession of the 1/3rd share of the Khata entered in
his name and that Ghuda Singh himself had admitted that he had no concern with
the Khata in question and that his name should be removed. On that report the
Assistant Collector ordered that the lands be entered in the names of Kahan
Singh and Chuhar Singh and that the name of Ghuda Singh be removed from the
mutation entry and that the Jamabandi papers be altered accordingly. But this
instance of exclusion of Ghuda Singh from the right to participate in the
estate of his father is consistent with the statement of custom recorded in
Rattigan's Digest. It is expressly recorded in Art. 48 that an appointed heir
does not thereby lose his right to succeed to property in his natural family,
as against collaterals, but he does not succeed in the presence of his natural
brothers. Kahan Singh and Chuhar Singh were brothers of Ghuda Singh and Ghuda
Singh having been adopted could not, according to the custom recorded in 33
Rattigan's Digest, inherit his father’s estate in the "presence of his
brothers." The other instance relied upon by counsel is about the
devolution of the estate of Chuhar Singh on the remarriage of his daughter
Bishno. On the death of Chuhar Singh it appears that his property was entered
in the name of his daughter Bishno, and when Bishno contracted a Karewa
marriage according to the custom prevalent in the community, the estate held by
her was entered in the name of Rura Singh and Bhola Singh sons of Kahan Singh.
In the register of mutations Ext. R D-1 it is recorded that Ghuda Singh who was
the Lambardar appeared before the Tehsildar and identified Mst. Bishno and
stated that she had contracted Karewa marriage with jawala Singh and further
admitted that Rura Singh and Bhola Singh were entitled to take her property,
and pursuant to this statement the Tehsildar directed that mutation regarding
succession be sanctioned in favour of Rura Singh and Bhola Singh in equal
shares. This instance also, in our judgment, does not support any case of
departure from the custom recorded in Rattigan's Digest. It is clear from the
genealogy and the extract of the register of mutations Ext. D-1 that the
occasion for making an entry of mutation was the remarriage of Bishno. Mr.
Bindra submitted that according to the custom of the community a daughter
inheriting property, from her father would on marriage be divested of the
property, which would devolve upon the collaterals of her father, and according
to that custom when on the remarriage of Bishno the succession opened, Ghuda
Singh was on his own admission excluded. This, counsel submitted, was a
stronginstance supporting a departure from the custom recorded in Rattigan's
Digest.
But if by virtue of the custom prevalent in the
community, as asserted by Mr. Bindra, on her marriage Bishno would lose her
interest in the property of her father, it is 34 difficult to appreciate how
she acquired title or continued contrary to that custom, to remain owner of the
property of her father after her first marriage. It is clear that it was not
because of her marriage, but on re-marriage, that the property was alleged to
have devolved upon Rura Singh and Bhola Singh. Why Bishno did not forfeit her
right to the property on her marriage and forfeited her right thereto on
remarriage has been left in obscurity.
The learned judges of the High Court held
that the mere circumstance that Ghuda Singh permitted the estate to go to the
descendants of Kahan Singh was not by itself sufficient to establish the custom
set up by the defendants and uncontested instances were of little value in
establishing a custom. They observed that the instance might have received
considerable reinforcement if it had been shown that Ghuda Singh or any of his
descendants had inherited collaterally in the family of Bhan Singh but except
succession of Ghuda Singh to the estate of Bhan Singh which is in accordance
with the general custom no proof of collateral succession was established, and
the single instance of Chuhar Singh's estate devolving upon the descendants of
Kahan Singh with the consent of Ghuda Singh does not establish any custom
contrary to what is stated in Rattigan's Digest. We are unable to disagree with
the view so expressed.
On that view of the case, these appeals fail
and are dismissed with costs.
Appeal dismissed.
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