Hari Singh vs Bidhi Chand (major)

R.L. Anand, J.—This is a defendant''s appeal and has been directed against the judgment and decree dated 24.9.1979 passed by the Court of learned Additional District Judge, Ambala who partly allowed the appeal and judgment and decree of the trial court was modified to the extent of the decree of possession of 1/3rd share of the suit property. The rest of the suit of the plaintiffs was dismissed.

The brief facts of the case are that Bidhi Chand and four others (plaintiffs) filed a suit for possession of 3/4th share of the land measuring 114 kanals 9 marlas fully described in the plaint, situated in village Dhanana, Tehsil Narain Garh, District Ambala and the case set up by the plaintiffs in the trial Court was that Chhitru son of Chuhra son of the Bhangu of village Dhanana was the last male holder of the land in dispute which was allotted to him in lieu of his ancestral land in consolidation proceedings and it was ancestral qua Chhitru and plaintiffs and defendant No. 2 Munshi. It was, inter alia, pleaded by the plaintiffs that the parties are agriculturists of village Dhanana and they are governed by the agricultural custom of tehsil Narain Garh in the matter of alienation and succession. According to the custom no male holder is competent to alienate any ancestral property nor is competent to make any adoption. No custom of adoption at all is prevalent amongst the Gujjars. Chhitru son of Chuhra, the last male holder died on 30.9.1965 and the plaintiffs and defendant No. 2 were the only heirs both according to custom and the Hindu Succession Act and as such the plaintiffs are entitled to 3/4th share of the land in dispute, whereas defendant No. 2 who is equally related to the deceased is entitled to 1/4th share. After the death of said Chhitru, the mutation was entered and defendant No. 1 Hari Singh set up that he was the adopted son of Chhitru vide adoption deed dated 30.6.1960 and therefore, entitled to the property in dispute to the succession of the plaintiff and defendant No. 2. It was further pleaded by the plaintiffs that there is no such custom for adoption prevalent in Narain Garh Tehsil amongst Gujjars community to which the parties belong and as such any alleged adoption of defendant No. 1 is invalid, illegal and in contravention of the provisions of law relating to adoption as contained in Hindu Adoption and Maintenance Act. With the above allegations, the plaintiffs have claimed the possession only of 3/4th share of the land against the defendants.

The defendant contested the suit and pleaded that the parties are not governed by agricultural custom. They are governed by Hindu law. The male holder could adopt and can adopt particularly after passing of the Hindu Adoption and Maintenance Act. Even otherwise, no custom, amongst the agricultural community specially the Gujjars of Narain Garh Tehsil, of adoption was prevalent. The land in dispute was not ancestral. It was further contended by the defendants that defendant No. 1 could be adopted as provided in Hindu Adoption and Maintenance Act and also as per custom of Tehsil Narain Garh. Defendant No. 1 was validly adopted. Therefore, the mutation regarding the same was rightly and correctly entered in the name of defendant No. 1. The plaintiffs have nothing to do with this suit land which exclusively belongs to defendant No. 1 as he is the adopted son of Chhitru, the last male holder.

The plaintiffs filed replication to the written statement in which they reiterated their allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, the learned trial Court framed the following issues:

1) Whether the parties are governed by agricultural custom in matter of succession, if so what that custom is ? OPP

2) Whether defendant No. 1 has been validly adopted by the deceased both according to Hindu Adoption and Maintenance Act and custom ? OPD

3) Whether the property in dispute is ancestral qua the plaintiffs and the deceased ? OPP

4) Whether the plaintiffs are estopped by their act and conduct from challenging the alleged adoption of defendant No. 1 ? OPD

4A) Whether there is a custom among the agricultural tribe of Naraingarh, Tehsil especially Gujjars permitting the adoption of persons above 15 years of age and married person ? OPD

5) Relief.

The parties led oral and documentary evidence in support of their respective claim and on the conclusion of the trial issue No. 1 was decided against the plaintiffs and in favour of the defendants by holding that the parties are governed by Hindu law in the matter of succession. Issues No. 2 and 4A were decided in favour of the plaintiffs and against the defendants and it was held by the trial Court that defendant No. 1 has been validly adopted by the deceased irrespective of the fact that he was more than 15 years of age as there was a custom amongst the agriculturist tribes of Narain Garh Tehsil specially Gujjars permitting the adoption of the person above 15 years of age. Issue No. 3 was also decided in favour of the plaintiffs and against the defendants. Issue No. 4 was decided against the defendants. During the pendency of the suit, plaintiff No. 3 Dila son of Gohra entered into a compromise Ex. A.I on 21.7.1976 and his suit was dismissed as withdrawn on the basis of the said compromise. The rest of the suit of the plaintiffs was decreed qua their shares as prayed for.

The defendant Hari Singh filed the first appeal in the Court of Additional District Judge, Ambala who vide impugned judgment and decree dated 24.9.1979 partly allowed the appeal and modified the judgment and decree of the trial court to the extent of a decree of possesion of 1/3rd share of the suit property in favour of the plaintiffs and the rest of the suit was dismissed. Still Hari Singh defendant was not satisfied with the impugned judgment and decree of the first appeal and has filed the present appeal which is being disposed of with the assistance of Shri Ramesh Hooda, Advocate who appeared on behalf of the appellant and Smt. Lisa Gill who appeared on behalf of the respondents.

The case set up by the defendant Hari Singh in the trial Court was that he is validly adopted son of the last male holder Chhitru and the only point which survives for consideration in the present appeal is whether there existed any custom amongst the Gujjars community of Tehsil Narain Garh District Ambala for adoption and the second point which further is relevant for my consideration is whether defendant No. 1 Hari Singh could be given in adoption. Section 10 of the Hindu Adoption and Maintenance Act, 1956 lays down that no person shall be capable being taken in adoption unless he or she has not completed the age of 15 years unless there is a custom of usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. In 1960 P.L.R. 429 Bishan Singh and others v. Harkesh, it was held by the Division Bench of this Court that the Riwajiam of Naraingarh Tehsil, District Ambala states in clearest terms that there is no custom of adoption in that Tehsil. In this view of the matter the entire case set up by the defendants falls to the ground that defendant No. 1 was given in adoption to Chhitru. The learned counsel for the appellant on the contrary has relied upon Amar Singh v. Tej Raj, 1982 P.L.R. 237 and submitted that in para No. 36 of Rattigan''s Digest of Customary Law in the Punjab, it is clearly stated that there are no restrictions as regards the age or the degree of relationship of the person to be adopted. It is also well settled that a married man having children can be adopted under custom. He further submitted that the adoption of defendant No. 1 is fully established from the record and therefore, the suit of the plaintiffs cannot be decreed. Mr. Hooda, also relied upon 1983 P.L.R. 335 Babu and another v. Mst. Halima and submitted that Gujjars of agriculturist tribe and they are governed by custom like the Kamboja of Malerkotla state. I am not in a position to accept the argument of the learned counsel in view of the Division Bench authority of this High Court referred to above which is based of Riwajiam of Naraingarh Tehsil of Ambala District which states in clear terms that there is no custom of adoption in that Tehsil. It has also been held in that very authority that entries in the Riwajiam even though unsupported by instances, give rise to some initial presumption in their favour, howsoever weak it may be. The learned counsel for the appellant has not been able to show any law to the contrary from which it can be inferred that there is any custom of Naraingarh Tehsil of Ambala District by which a Gujjar male holder of the property can adopt a child irrespective of the age.

Reverting to the evidence, it has even been admitted by Hari Singh appellant that he was more than 15 years of age on the date of his adoption and he was married. The learned trial Court had dealt this issue in paras No. 7 and 8 of the judgment by placing reliance on 1960 P.L.R. 429, which I reproduce in order to repel the arguments raised by the learned counsel for the appellant:

"The onus probandi of this issue was upon the plaintiff to prove that they are governed by agricultural custom which is prevalent in tehsil Naraingarh in matter of alienation and succession. In order to prove this issue the plaintiff besides appearing himself as PW. 5 has produced as many as five witnesses. P.W 1 is Shri Karam Narain Patwari of Village Dhanana. P.W 2 is Shri Khilla Ram who deposed on oath that he knows the parties. The Gujjars of Tehsil Naraingarh follow custom and they do not follow Hindu law. P.W. 3 is Shri Inder Singh who deposed on oath that the Gujjars in Tehsil Naraingarh follows custom as well as Hindu Law. Lastly P.W 5 Dilla Ram plaintiff himself appeared on oath and stated that the Gujjars are governed by customary law and they do not follow Hindu Law.

To refute this oral evidence, the defendant has produced as many as 13 witnesses. DW 6 Bharka Ram has deposed on oath that there is custom of adoption amongst the Gujjars. DW 7 also deposed that custom of adoption is prevalent. DW 9 has also deposed on oath that there is custom prevalent amongst Gujjars of Tehsil Naraingarh regarding succession to the property. Similarly, DW 10, DW 11 and DW 12 deposed on oath that Gujjars are governed by customary law in matter of succession. Lastly Hari Singh the defendant appeared as DW 13 deposed on oath that they are governed by customary law in matter of succession as prevalent in Tehsil Naraingarh District Ambala."

Once the adoption goes, the property of Chhitru will go by succession and this aspect of the case has not been disputed by the learned counsel for the appellant nor he disputed the findings of the first Appellate Court with regard to the distribution of shares of the property of Chhitru.

Resultantly, I do not see any merit in this appeal, which is hereby dismissed, leaving the parties to bear their own costs.