Kartar Singh Vs. Surjan Singh &
Ors  INSC 147 (16 August 1974)
REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 2161 1975 SCR (1) 742 1974
SCC (2) 559
Hindu Adoption and Maintenance Act, 1956 s.
11(vi)--Scope of -"with intent to transfer the child from the family of
its birth to the family of its adoption"--Meaning.
The first respondent's suit questioning the
adoption of the appellant was dismissed by the trial court. The first appellate
court held that the ceremony of giving and taking had not taken place and
allowed the appeal. The single judge of the High Court held that the giving and
taking had taken place and that there was intention to transfer the appellant
from the family of his birth to that of the adoptive family within the meaning
of s. I 1(vi) of the Hindu Adoption and Maintenance Act, 1956. However, in
Letters Patent Appeal the Division Bench held that there was no intention to
transfer the appellant from his natural family to the family of adoptive
Allowing the appeal,
HELD : The single Judge was right in his
conclusion that there was evidence of intention to transfer the appellant from
his natural family to that of the adoptive father and that the fact that the
adoptive father was at one time governed by customary law or that the adoption
was stated to have been validly made in accordance with custom would not go to
show that the intention at the time of the adoption was not to transplant the
appellant from his natural family to that of the adoptive family, because
customary law also recognises formal adoption resulting in change of family.
The Division Bench failed to take into
consideration the fact that the very ceremony of giving and taking is in itself
symbolic of transplanting the adopted son from the family of his birth to the
adoptive family. [743 F-744A,H] (2) The adoption deed refers to the adoptive
father taking the appellant into his lap from his parents and adopting him as
his son. The adoptive father referred to the appellant as adopted son and
specifically called the document "adoption deed". The adoption deed
is to be read as a whole and so read there could be no doubt that what the
adoptive father intended was to make an adoption according to law and not merely
appoint an her according to custom. After the abolition of the customary law of
adoption, whether of the formal or informal kind, there is no room for any
argument about the validity of the adoption provided the formalities prescribed
by Jaw were complied with. The words in s. 11(vi) of the Act" with intent'
to transfer the child from the family of its birth to the family of its
adoption" are merely indicative of the result of actual giving and taking
by the parents or guardians concerned referred to in the earlier part of the
clause. Where an adoption ceremony was gone through and the giving and taking
took place there cannot be any other intention.[745D-F, H-746A] In the instant
case there was a clear finding that the intention was to transfer the adopted
son to the adoptive family.
CIVIL, AppeLLATE JURISDICTION: Civil Appeal
No. 1888 of 1967.
Appeal by Special Leave from the Judgment
& Decree dated the 12th April, 1967 of the Punjab & Haryana High Court
in L.P.A. No. 6 of 1963.
Bishan Narain, S. K. Mehta and K. R.
Nagaraja, for the Appellant.
Hardayal Hardy, Harbans singh and Gautam
Goswami for Respondents Nos. 1(I) to 1(vi).
743 The Judgment of the Court was delivered
by ALAGIRISWAMI, J. The appellant was adopted by Maghi Singh, his
grand-father's brother. Maghi Singh also executed a deed of adoption. After his
death another brother of Maghi Singh, the 1st respondent, filed the suit, out
of which this appeal arises, questioning the adoption and claiming a half share
in Maghi Singh's property. The suit was dismissed by the Trial Court but the
First Appellate Court held that the ceremony of giving and taking had not taken
place and allowed the appeal. In Second Appeal Justice Khanna of the Punjab
High Court, as the then was, held that the giving and taking bad taken place
and rejected an argument that even if there was the act of giving and taking,
it was not with the intent to transfer the appellant from the family of his
birth to that of Maghi Singh because Maghi Singh was governed by customary law.
A Division Bench of the Punjab & Haryana High Court hearing the Letters
Patent Appeal against this judgment held that there was no evidence of
intention to transfer the appellant from his natural family to Maghi Singh's
family and allowed the appeal. This appeal is by special leave granted by this
In the plaint it was alleged that there was
no ceremony of adoption performed nor was the appellant treated as Maghi Singhs
son. It was also alleged that Maghi Singh was not in his senses when he
exeCuted the adoption deed. As the learned Single Judge as well as the Division
Bench have concurrently held that the ceremony of' giving and taking did take
place, it is unnecessary to go into that questions The deed of adoption refer
to the giving and taking. It also says that this was done before the
brotherhood of the village, that Maghi Singh had adopted him as his son
according to custom, that he was his legal heir and representative, that he
shall be owner and possessor of his entire property and that all the rites
regarding his death shall he performed by the adopted son. Even in the grounds
of appeal before the District Judge only the question of ceremony of giving and
taking was canvassed and no point was taken that there was no intention to
transfer the adopted son from the family of his birth to the adoptive family
that point seems to have been taken for the first time before lie learned
single Judge of the High Court. We consider that I the learned Single Judge was
right in his conclusion that there. was evidence of intention to transfer the
appellant from his natural family to that of Maghi Singh and that the fact that
Maghi Singh was at one time governed by customary law or that the adoption was
stated to have been validly made in accordance with custom would not go to show
that the intention at the time of adoption was not to transplant Kartar Singh
from his natural family to that of Maghi Singh because customary law also
recognises formal adoption resulting in change of family. It is not as if
customary law does not recognise such adoption. In Punjab before the Hindu
Adoptions and maintenance Act 1956 came into force there was prevalent the
customary adoption, which was custom of appointing a heir, the heir so
appointed not ceasing to be member of the family of his birth and not becoming
a member of the family of the person who appoints him as his heir. There was
also the more formal adoption 744 which was recognised under the Hindu law in
which there was giving and taking and the adopted son becoming a member of the
adoptive family. The question whether the adopted son become a member of the
adoptive family used to arise in the case of collateral succession. An
appointed heir cannot succeed to the collaterals of the person who appointed
him as his heir but an adopted son would succeed to the collaterals of the
adoptive father. In Abdhur Rehmani Khan & Ors v. Ragbhir Singh & Anr
(51 PLR 119) the custom in Punjab is set out like this.
" A customary adoption in the Punjab is
ordinarily no more than a mere appointment of an heir, creating only personal
relationship between the adopter and the adoptee. By such adoption the adoptee
does not become the grandson of the adopter's father nor the adoptee's son
becomes the grandson of the adopter.
But some agricultural tribes in certain
places have been found to be governed by a special custom under which adoption
does not amount to mere appointment of an heir, but has attached to it all the
consequences which flew from a full and formal adoption of Hindu law. Where
such a special custom Is found to exist it is not necessary for the adoption
that it should have taken place in the conformity with the rules of Hindu law
in the matter of ritual or otherwise, become in such cases it is not the rule
of Hindu law which operates to attach such consequences to the adoption but it
is the custom governing the adoption that does so, and therefore in order to
attract all such consequences it is quite enough if the adoption conforms to
that custom in the matter of form etc.
Such an adoption effects a complete
transplantation of the adoptee from one family to the other and confers the
right of collateral succession in the adoptive family and takes away the right
of such succession in the natural family.
In the case of such adoption the property
devolving on the adopted son continues to be ancestral in his hands".
It would be noticed that even according to
the customary law of Punjab there was special custom Linder which adoption
attached to it all the consequences which flow from full and formal adoption
under Hindu law.
The learned Judges of the Division Bench
failed to take into consideration the fact that the very ceremony of giving and
taking in itself symbolic of transplanting the adopted son from the family of
his birth to the adoptive family. In this connection reference may be made to
the ancient texts on adoption given in Mayne's Hindu law (11th Edn) at page
226, according to which Manu says; "he whom his father 745 or mother (with
her husband's assent) gives to another, etc, is considered as a son
given". The Mitakshara says "He who is given by his mother with her
husband's consent while her husband is absent or after her husbandís decease or
who is given by his father or by both being of the same class with the person
to whom he is given, becomes his given son".
Again at page 237 it is said "The giving
and the receiving are absolutely necessary to the validity of an adoption.
They are operative part of the ceremony,
being that part of it which transfers the boy from one family into another.
But the Hindu law does not require there
shall be any particular form so far as giving and acceptance are concerned. For
a valid adoption all that the law requires is that the natural father shall be
asked by the adoptive parent to give his son in adoption, and that the boy
shall be handed over and taken for this purpose".
After the Hindu Adoptions and Maintenances
Act, 1956 came into force there is no room for any customary adoption.
Section 4 of the Act specifically provides
that any text, rule or interpretation of Hindu law or any custom or usage as
part of that law in force immediately before the commencement of that Act shall
cease to have effect with respect to any matter for which provision is made in
that Act. Therefore the question of any customary adoption, as was in force in
Punjab before that Act came into force, does not any longer arise.
The whole error in the reasoning of the
Division Bench lies in proceeding on the assumption that Maghi Singh intended
merely to appoint an heir because he referred to custom.
But when the document refers to Maghi Singh
taking the appellant into his lap from his parent and adopting him as his son,
the words "according to custom" can only refer to the custom of
adoption; so would the reference to "custom" in two other places in
the document. Maghi Singh refers to "adopted son" in three places. He
specifically calls the document "adoption deed". The document is to
be read as a whole and so reading there cannot be the least doubt that what
Maghi Singh intended was to make an adoption according to law and not merely
appoint an heir according to custom which prevailed before 1956 but had been
abolished by the Hindu Adoption and Maintenance Act, If the plaintiff had at
least pleaded in the alternative that even though there might have been giving
and taking there was no intention to transfer the adopted boy from his natural
family to the adoptive family evidence would have been directed to the point.
It was hardly proper to have allowed the plaintiff to have raised this question
without having laid any basis for it either in his pleadings or in the
evidence. The whole case has been given a twist which it does not bear on the
materials on record. After the abolition of the customary law of adoption,
whether of the formal or of the informal kind there is no room for any argument
about the validity of the adoption provided the formalities prescribed by law
are complied with. The words in s. II Cl (vi) of the Act "with intent to
transfer the child from the family of its birth to the family of its
adoption" are merely indicative of the result of actual giving and taking
by the parents or guardians concerned referred to the earlier part of the
clause 746 where an adoption ceremony is gone through and the giving and taking
takes place there cannot be any other intention.
The parties did not intend to go through a
play acting or to put up a show. They obviously intended to comply with the
requirement of law that for a valid adoption there must be giving and taking.
There is moreover clear evidence in this case
that the intention was to transfer the adopted son to the adoptive family.
Nasib Chand D.W.2, said that at the time of adoption Bachan Singh and his wife
were present here and they said the boy was his (Maghi Singh's) and that Maghi
Singh took the son. Pritam Singh D.W.3, said that Maghi had taken Kartar in his
lap and Bachan Singh had asked him to take his son. Kashmiri Lal D.W.4, said
that Maghi had taken Kartar in his lap and Bachan Singh and his wife were
present there and were saying they had given their son to him.
Wasawa Singh D.W.5, said that when Maghi
asked for his son Bachan Singh said he had given his son to him in adoption.
Bachan Singh D.W.7, said that Maghi had taken
his son Kartar Singh from him, that he was made to sit in the lap of Maghi,
that his (D.W.7 s) wife was near him and he had obtained her consent. There
cannot be clearer evidence than this.
The judgment of the Division Bench is set
aside and that of the learned Single Judge restored. The respondents will pay
the appellant costs throughout.
P. B. R.