Bakhshish Singh vs Kewal Singh and others

Man Mohan Singh Gujral, J.—This regular second appeal is directed against the judgment and decree of the District Judge, Hoshiarpur, dated the 17th July, 1963, whereby the judgment and decree of the Subordinate Judge Second Class, Dasuya, dated the 9th November, 1962, dismissing the plaintiff''s suit was upheld and the plaintiffs'' appeal was dismissed. The dispute relates to the properly left by one Udham Singh son of Mehtab Singh who died in April, 1961. Kewal Singh respondent is the son of Ram Chand brother of Udham Singh. After the death of Udham Singh, Kewal Singh entered into possession of the property. Bakhshish Singh, Harnam Kaur and Gian Kaur who are the brother and sisters of Udham Singh respectively, being aggrieved by the act of Kewal Singh of taking possession of the property, filed a suit for possession for their share of the property left by Udham Singh. The defence taken by Kewal Singh was that he had been adopted by Udham Singh as a son and that this adoption was finally confirmed by a registered adoption deed dated the 28th July, 1960. A number of issues were raised in the trial Court, but ultimately before the appellate Court the decision only re red on the question whether Kewal Singh had been validly adopted as a son to Udham Singh or not. The learned trial Court had found that Kewal Singh had been validly adopted and this finding was upheld by the learned District Judge.

In second appeal, when the appeal first came up for hearing, an application under Order VI rule 17 of the CPC was made. A contention was raised by the appellants that a person who was above fifteen years of age and one who was married could not be adopted unless there was a special custom to that effect it was pointed out that as these circumstances had not been established the adoption of Kewal Singh was not valid. In this situation, the defendant-respondent Kewal Singh filed an application for amending the written statement and for claiming an issue on its basis This application was allowed by order dated the 12th November, 1973, and the case was remanded to the trial Court for framing an additional issue on the basis of the amended written statement and to try that issue. After remand the additional issue was framed by the trial Court and it was found that according to custom by which the parties were governed a person above the age of fifteen years as well as a person who is married could be adopted. The appellant filed objections against this finding and the learned District Judge by order dated the 3rd May, 1974, disposed of these objections, upholding the view adopted by the trial Court.

With regard to the additional issue, the learned Courts below found that entry in the Riwaj-i-am of district Hoshiarpur indicated that there was no age limit with regard to adoption and that married persons could be adopted. It was further observed that where members of a tribe were consulted at the time of the preparation of the Riwaj-i-am an initial presumption would arise that the tribe was governed by the custom recorded in the Riwaj-i-am. After accepting this view, the evidence was examined and it was found that a number of instances had been proved where persons above fifteen years of age and married persons had been adopted in district Hoshiarpur to which place the parties belonged.

While challenging the above decision the principal argument raised on behalf of the appellants is that the learned Courts below had erred in not considering that the respondent was to establish that the family custom permitted the adoption of a married person or a person above the age of fifteen years. The argument, to say the least, is wholly misconceived u/s 10 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act) a person who is married or who has completed the age of fifteen years cannot be adopted "unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption". All that sub-sections (iii) and (iv) of section 10 requires is that a custom should permit such adoption and not that there has to be a special custom or a family custom to that effect No doubt in section 3(a) of the Act the expressions "custom and usage" have been defined to signify a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, but this definition does not help the argument advanced on behalf of the appellants that the custom or usage, to which reference is made in clauses (iii) and (iv) of section 10, should be a family custom or a special custom. A custom or usage can be family custom or one applicable to any areas tribe or community. All that is required to be proved u/s 10 is that the custom which is applicable to the party, whether it is a family custom or tribal custom, permits the adoption of married persons or persons above the age of fifteen years.

On behalf of the appellants reference was made to the pleadings with respect to the additional issue and it was pointed out that the case of the respondent was that the family custom permitted adoption of married persons or persons above the age of fifteen years. It is well settled that pleadings in India have not to be construed strictly but are I to be read liberally. All that was meant by the averment in the amended written statement was that the families to which the parties belonged were governed by a custom which permitted the adoption of married persons or persons above the age of fifteen years. It was not intended to convey that such custom was prevalent only among their families and that it was not a custom of the tribe or area to which they belonged. I, therefore, find no force in this argument and uphold the findings of the Courts below that the parties were governed by a custom which permitted the adoption of married persons or persons above the age of fifteen years within the meaning of section 10 of the Act.

The next argument raised by the Learned Counsel for the appellants in support of the contention that the adoption was invalid was that it not having been established that Kewal Singh respondent was given away in adoption by his mother the ceremony of adoption and the adoption deed were of no consequence. In order to appreciate this argument reference will have to be made to sections 6, 9 and 11 of the Act. Section 6 among other things provides that no adoption shall be valid unless the person giving in adoption has the capacity to do so. Section 9(1) then states that no person except the father or mother or the guardian of the child shall have the capacity to give the child in adoption. u/s 11, in every adoption the conditions mentioned therein must be complied with. The only implication of this section is that if any of the conditions is not complied with, the adoption is not valid. One of the conditions mentioned is that the child to be adopted must be given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family or its birth to the family of its adoption. A proviso is added to clause (vi) of section 11 that the performance of the ceremony of datta homam shall not be essential to the validity of an adoption.

The argument now sought to be raised in this Court was raised in the Courts below and the learned appellate Court came to the firm conclusion that though the mother was present at the time of the ceremony but she had not given Kewal Singh in adoption to Udham Singh. In spite of this finding the adoption was found valid for the reason that the expression ''child'' occurring in clause (vi) of section 11 of the Act meant person below fifteen years of age and that this condition did not apply to the adoption of persons who were above that age were not minors. It was held that "in this context we can clearly see that the expression ''child'' would mean a boy or girl below the age of 15". It is this interpretation placed on section 11 (vi) which has been seriously assailed before me and with considerable plausibility. Had the intention of the Legislature been to confine the condition mentioned in clause (vi) to adoptions in case of persons below the age of fifteen years, the language of this clause would have been entirely different, especially when regard is had to the provisions contained in clause (i) to (v) of section 11 which may be quoted below :--

Other conditions for a valid adoption.--In every adoption, the following conditions must be complied with :--

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son''s son or son''s son''s son (whether by legitimate blood relationship or by adoption) living at the time of adoption ;

(ii) if the adoption is of a daughter the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son''s daughter (whether by legitimates blood relationships or by adoption) living at the time of adoption ;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted ;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years order than the person to be adopted ;

(v) the same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption;

Provided that the performance of datta homam shall not be essential to the validity of an adoption.

Viewed in the light in which clauses (i) to (v) of section 11 have been framed, clause (vi) would have read as follows if the Legislature had intended that this clause should not apply to persons above the age of fifteen years :--

If the person to be adopted is a child, he must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption.

Leaving this apart, the argument is otherwise not resintegra. The matter was considered in Nanak Chand Vs. Chandra Kishore Aggarwal and Others, and it was observed that where the expression "child" is used in conjunction with parentage it is not concerned with age. These observations were made in a case where the expression "child" used in section 488 of the Criminal Procedure Code was being interpreted in relation to the meaning of this expression as used in the Act with which we are concerned. Considering clause (vi) of section 11 in the light of the meaning given by the Supreme Court in the above case, we find that the expression ''child'' has been used in conjunction with parentage and it would, therefore, be clear that here the word is not concerned with age. The question whether the expression ''child'' occurring in clause (vi) of section 11 has reference to age or not was directly considered in Dhanraj Jain Vs. Smt. Suraj Bai, and the argument that the word ''child'' was confined to persons below the age of fifteen years was repelled in the following words :--

Learned Counsel emphasis is on the expression "child, occurring in this section to seek assistance in support of his contention that the Act has provided for giving and taking ceremony in a case of adoption of a minor only and not in case of an adult person. In section 10, of course, the word, child" has not been used but the word "person" has been used to make provisions for the persons who could be validly given in adoption. Mr. Sumer Chand seeks to suggest that the legislature having not used the word "child" in Section 10 must have intended the expression "child" occurring in Section 9 to limit to minor only and, therefore, it must follow that giving and taking ceremony was obligatory for the adoption of minors only. According of him clause (vi) of Section 11 of the Act which deals with the ceremony of physical giving and taking of the child also limits the same to the adoption of minor persons only and does not envisage the same in the case of adoption of an adult person.

In this connection he invited our attention to Nanak Chand Vs. Chandra Kishore Aggarwal and Others, where the meaning of the word "child" has been dealt with. In that case the meaning of the word "child" has been explained by their Lordships of the Supreme Court while dealing with a case u/s 488, Criminal P.C. where also the word "child" occurs in connection with maintenance of the child. While explaining the term "child" their Lordships have extracted the observations of Beaumont C.J. in Shaikh Ahmed Shaikh Mahomed Ashraf Vs. Bai Fatma, as under:--

the word "child" according to its use in the English language has different meanings according to the content. If used without reference to parentage, it is general synonymous with the word "infant" and means a person who has not attained the age of majority......where the "word "child" is used with reference, to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age.

Their Lordships agreed with this observation of Beaumont C.J., and adopted the meaning of the word "child" as given by him We have, therefore, to find out the meaning of the word "child" occurring in Section 11 (vi) of the Act. In order to appreciate the real controversy in issue we deem it desirable to quote the Clause (vi) of Section 11 of the Act:--

* * *

Undoubtedly, the word "child" has been used in relation to parents as well as in relation to guardian disjunctively. The word "child" has also been used in Section 12 and 14 but on reading Sections 12 and 14 of the Act it appears that the term has been used to cover both minor as well as audit persons. In our opinion the word "child" has been used in Section 11 (vi) with a wider amplitude with flexibility to include major as well as miner, so as to conform to both the situations, that is, adoption by the parents and by a guardian. Read in relation to the parents we are undoubtedly of opinion that the word "child" will include major as well as the minor persons and when read in relation to the guardian it will include, of course, minor persons only the argument of the Learned Counsel appears to suffer from infirmity when it seeks to give the "meaning to the word" child" in the context of the guardian only end conveniently overlooks the use of the word "child" used in s. 11 (vi) in relation to parents. If we were to accept the contention of the Learned Counsel for the appellant that physical giving and taking was not necessary in case of adoption of an adult, it is likely to lead, to absurd situation, inasmuch as an adoptive person even having infirm or impecunious parents could go in adoption to an affluent person without the consent of his parents and by his unaltered act sever his ties with the natural family and avoid the liability of maintenance statutorily laid under the provision of Section 20 of the Act. This, in our opinion, could never have been the intention of the legislature. This interpretation is in harmony with the rest of the provisions of the Act The main difficulty we feel in accepting the construction suggested by the Learned Counsel is that it completely stultifies Section 6 of the Act which being couched in negative terms is of a mandatory character. All the four conditions or requisites including the condition of giving by a complied person are cumulative and each must be complied with and are equally applicable to case of adoption of an adult (where permissible) and a minor.

I am in respectful agreement with the above observations of Joshi, J., who spoke for the Court in Dhanraj Jain''s case and hold that as it has not been established that there was giving in adoption by the mother of Kewal Singh the adoption is void, as it does not comply with clause (vi) of section 11 of the Act.

Faced with this situation, it was urged on behalf of Kewal Singh respondent that as the mother had been found to be, present during the ceremony it should be inferred that she had given Kewal Singh in adoption with intent to transfer him from the family of his birth to the family of his adoption. This argument completely loses sight of the fact that not a word was said in evidence by any witness that the mother had given away the child in adoption. In the absence of such evidence it was not open to infer that the mother had acted in this manner or had given Kewal Singh in adoption.

The second part of the argument is equally without merit. It was urged that as long as the mother had consented to the transfer of the child from the family of his birth to the family of his adoption it should be implied that she had given the child in adoption. Under clause (vi) of section 11 both the conditions are necessary, namely, that the child must be given and taken in adoption and that such giving and taking should be with intent 10 transfer the child from the family of its birth to the family of its adoption. It is not sufficient to establish that taking by the adoptive father was with intent to transfer the child from the family of its birth, but it must further be shown that the child was given in adoption.

For the foregoing reasons I find that there was no valid adoption of Kewal Singh and I therefore, set aside the findings of the Courts below on issue No. 2 Consequently I allow this appeal and setting aside the judgment and decree of the Courts below grant the plaintiffs a decree for possession of their share of the property as prayed for. Considering the difficult nature of the question involved, there will be no order as to costs throughout.

Mr. Roshan Lal Batta appearing for Kewal Singh respondent has prayed that permission be granted to him to file a letters patent appeal. Permission is granted keeping in view the nature of the question that has arisen in this case.