Bharpai vs Sudhan Singh and another

Tek Chand, J.—This is defendant''s regular second appeal from the judgment and decree of the Additional District Judge affirming that of the trial Court decreeing plaintiff''s suit.

The facts giving rise to this suit are that Raimji Lal was the owner of the land in suit and the plaintiff was his sister''s son. He had executed a registered deed of adoption on 2lst of August, 1953 (Exhibit P/1) appointing the plaintiff as his heir, he himself being issueless. Before the Naib Tehsildar at the time of mutation, Ramji Lal stated on 8th of June, 1944, that he had adopted his sister''s son Sudhan Singh as his heir and desired the mutation of adoption to be recorded but Teja Ram, Lambardar, had raised an objection that the plaintiff had not lived in the village and on this, the case was adjourned for decision in the presence of Sudhan Singh, plaintiff. The final order was passed on 13th of September, 1946, more than three years after the execution of the registered deed of adoption. At that time, Ramji Lal had stated that the plaintiff was not serving him and, therefore, he was not adopting him. The Revenue Officer rejected the application for mutation of adoption. The plaintiff alleged''that Ramji Lal had died six years prior to the filing of the suit and he was the only successor left behind. The defendants were inimically disposed towards the plaintiff and on the death of Ramji Lal, they had got mutation sanctioned in favour of Jita Ram who had also died sometime prior to the institution of the suit. The plaintiff contended that this Jita Ram was the son of Laje Ram and Laje Ram''s wife Mst. Bharpai, defendant NO. 1. He contended that Ramji Lal left no widow As the defendants were alleged to be in illegal and forcible possession of the land, the plaintiff had instituted the suit for its possession.

Defendant No. 1 is Mst. Bharpai and defendant No. 2 is Ram Karan, her son from Laje Ram. In their written statements, it was averred that the plaintiff was not the adopted son of Ramji Lal or even his sister''s son It was said that Jita Ram and Ram Karan were the heirs of Kamji Lal The case of Mst. Bharpai was that as she had been turned out of the house by her husband Laje Ram, she entered into Karewa form of marriage with Ramji La] and Jita Ram was born to her from her union with Ramji Lal. On the pleading of the parties, the following issues were framed:

(1) Whether plaintiff is the adopted son and nephew of Ramji Lal. If so, to what effect?

(2) Whether Jita Ram and Ram Karan were heirs of Ramji Lal If so, to what effect?

(3) Whether Jita Ram gifted half share of the land in suit to Ram Karan on 4th May, 1953 If so, to what effect?

(4) Whether Bharpai performed Kerewa with Ramji Lal. If so, to what effect?

(5) Whether the suit is properly valued for purposes of court-fee and jurisdiction?

(6) Relief.

The trial Court answered the first issue in the affirmative holding that the plaintiff was the adopted son and nephew of Ramji Lal. The second issue was answered in the negative that Jita Ram and Ram Karan were not heirs of Ramji Lal. On the third issue, it was found that Ramji Lal had made a gift of his half share of the land to Ram Karan on 4th of May, 1953. The fourth issue was decided against Mst. Bharpai and it was found that her Karewa with Ramji Lal had not been proved. The fifth issue on the question of court fee was answered in the affirmative. On these findings, plaintiff''s suit was decreed in respect of one half of the land in dispute. The plaintiff did not question the decision of the trial Court with respect to the validity of the gift in favour of Ram Karan as to one half land of Ramji Lal and that matter, therefore, is no longer in controversy. The defendant was unsuccessful in her appeal before the Additional District Judge and has now assailed the findings of the lower Court in the regular second appeal.

I may first take up the question of the factum of adoption covered by the first issue The adoption is in the nature of appointment of heir under customary law and is evidenced by a registered deed It was urged by the Learned Counsel for the defendant that the adoption was not valid by a subsequent treatment by Ramji Lal of the plaintiff as his adopted son, he having repudiated the act of adoption. The decision of the Supreme Court in Inder Singh Vs. Gurdial Singh, was cited for the proposition that a mere declaration or even the execution of a deed of adoption unaccompanied by precedent or subsequent treatment as son was insufficient for proving valid adoption. Where there was no evidence of treatment of the appellant by the adoptor as his son and on the contrary there was evidence to show that the adoptor had repudiated the declaration that he had made earlier, the appellant could not be deemed to have been validly adopted. It was further urged that the plaintiff at the time of his adoption was the only son of his parents and he could not, therefore, be adopted though it was true that ha had brothers and sisters who were born subsequent to his adoption.

The next submission was that the adoption of sister''s son was void under Riwaj-i-am of Rohtak and reliance was placed upon a decision of the Funjab Chief Court in Jhanda and other v. Balwant 38 P.R. 176 It was found in that case that by custom among Authal Jats of Nizampur Delhi District, the adoption of a sister''s son was not valid in the presence of collaterals related to the adoptor in th third degree. The ruling is not applicable to the facts of this case.

The Learned Counsel for the plaintiff respondent urged that both the Courts below found the plaintiff having been adopted. He also referred to the statements of plaintiff''s witnesses that one year after the adoption, Ramji Lal had the plaintiff married and that the plaintiff had been living with the adoptor and was being treated as his son vide statements of P. Ws. 1,2,3,4 and 6. In the written statement, all that was averred was that the plaintiff was not the adopted son there was no ceremony and he did not live with Ramji Lal The plea that as the only son of his parents, he could not be adapted, was not taken and no issue was framed. Reference was made to para 38 of Rattigan''s Digest of Customary Law in the Punjab, stating:

it is no valid objection to an appointed heir that he is the eldest or only son of his natural father.

That being the general custom, a party had to allege a special custom and then to prove it and this has not been done by the defendant. It was held by the Supreme Court in Mst. Kirpal KAUR V. Bachan Singh AIR 1968 S.C. 199, that it was for the party to plead and prove the special custom and the Courts cannot permit a party to raise the plea of special custom The Supreme Court in Hem Singh and Another Vs. Harnam Singh and Another, , drawing out the distinction between Hindu Law adoption and the appointment of heir under the Punjab Customary Law, observed that the adoption in the former case was primarily a religious act intended to confer spiritual benefit on the adoptor and some of the rules were, therefore, mandatory and compliance with them regarded as a condition of the validity of the adoption. But in the latter case, adoption under the Customary law of Punjab was secular in character, the object, being to appoint an heir and the rules relating to ceremonies and to preferences in selection had to be held to be directory and adoptions made in disregard of them were not invalid. To the same effect was a Division Bench decision of the Court in Ganga Singh v. Basant (1960) 62 P.L.R. 495.

In AIR 1930 57 (Privy Council) , the Privy Council observed that where a claim had never been made in the defence presented no amount of evidence could be looked into upon a plea which was never put forward. This view of the Privy Council was followed by the Supreme Court in Bhagat Singh v Jaswani Singh AIR 1968 S.C. 1861.

The repudiation of adoption by Ramji Lal was after three years of the execution of the deed of adoption. Adoption once lawfully made cannot be subsequently cancelled vide Amur Singh v. Bihar Singh (1957) 59 P.L.R. 146, where it was held that an adoptive father could not disinherit his appointed heir for misconduct, disobedience or neglect to support his adoptive father nor could be subsequently revoke or repudiate the adoption or appointment once lawfully made. To the same effect are the observations of Mahajan J. in Mangal Singh v. Dogar Singh 1964 C.L.J. 287.

For reasons stated above, I agree with the decision of the Courts below on the first issue.

The fourth issue was as to whether Mst. Bharpai performed Karewa with Ramji Lal and if so, to what effect. Both the Courts below came to the conclusion that performance of Karewa had not been proved They took into consideration the fact that she was married to Laje Ram who as still alive. Her contention that she had been turned out by Laje Ram and, therefore, she could enter into Karewa marriage with Kamji Lal, was rejected. There was no plea taken in the written statement that her former husband Laje Ram had abandoned her and that act amounted to a divorce and further that she could remarry by Karewa under the custom. No issue was framed either on the question of her abandonment by Laje Ram or on the question of validity of divorce in such circumstances. Moreover, issue No. 4 as to the factum of performance of Karewa with Ramji Lal raises a question of fact which has been decided by both the Courts below in plaintiff''s favour and can no longer be raised in second appeal. In my view, both the Courts below came to a correct conclusion.

I find no force in the appeal which is dismissed but I will leave the parties to bear their own costs.