Hoshiar Singh and Others vs Mst. Bhuru and Another

D.K. Mahajan, J.—There is no merit in this appeal and it must fail.

On the salient facts, there is no dispute. Nathu Ram was the last maleholder or the property in dispute. The property in dispute is a house. Nathu Ram died sometime before 1919. After his death, his widow, Mst. Bhuri. mortgaged the house in dispute on the 14th of May, 1919 with Sheodan Singh to secure an advance of Rs. 800/-. On the 9th November, 1943, she sold the house in dispute to Sheodan Singh for Rs. 2,00/-. This sale was challenged by her husband''s reversioners Sadhu Singh, Balbir Singh, Ram Singh, Jai Singh, Nihal Singh, Mst. Ram Dai, Ram Narain, Gulab Singh and Jagamal Singh by a suit for declaration, on the usual ground that Mst. Bhuri was not competent to sell the house and the sale was not either for necessity or for consideration, and would not affect their reversionary rights after her death. This suit was filed on the 30th of March 1944 and was decreed on the 7th of March, 1945. The plaintiffs were granted a declaration that the sale in dispute would not affect their reversionary rights after the death of Mst. Bhuri. The sale was converted into a mortgage for Rs. 1,900/- in terms of the mortgage deed dated the 14th July, 1919. On the 3rd November, 1944. Mst. Bhuri executed the deed of adoption whereby she adopted Hoshiar Singh present plaintiff a son to her husband. Hoshiar Singh is the son of Sheodan Singh, the sale in whose favour was set aside at the instance of reversioners of Mst Bhuri''s husband. On the 23rd of June, 1958, Mst. Bhuri sold the house in dispute to Subedar Jagmal Singh son of Chaudhari Ganga Sahai. This Jagamal Singh is one of the plaintiffs in the declaratory suit that was filed on the 30th March, 1944 to challenge Mst. Bhuri''s sale of 1943 to Sheodan Singh. The present suit has been filed by Hoshiar Singh claiming to be the adopted son of Mst. Bhuri challenging the sale on the ground that by reasons of his adoption by Mst. Bhuri, Mst. Bhuri has been divested of the bouse and, therefore, could not sell the same. This suit was contested both by Mst. Bhuri and Jagmal Singh. A large number of pleas were raised; but we are not really concerned with all of them. Suffice it to say that the principal controversy hinged round the questions whether Hoshiar Singh had, in fact, been adopted and whether his adoption was valid? If these questions are determined against the plaintiff, no other matter arises for determination. The trial Court found that the adoption deed, Exhibit P. 1, was executed and that no fraud was practiced upon her in getting the same executed. It was further found that, in fact, there was no adoption and that, in any case, the plaintiff''s suit was dismissed, as he had no locus standi to file the same. The plaintiff''s who is dissatisfied with this decision, has come up in appeal to this Court. The matters upon the determination of which the fate of this apoeal depends are whether plaintiff is the adopted son of Mst. Bhuri and whether his adoption is valid?

After hearing the learned counsel for the appellant and going through the evidence led in the case, I am clearly of the view that the appeal must fail. There is no cogent evidence which proves that, in fact, the plaintiff was adopted. All that happened was that a deed of adoption was executed. It may be mentioned that right upto the year 1958, all documents, that were executed by Mst. Bhuri, were executed in favour of Sheodan Singh, father of the plaintiff. For the first time in the year 1958, Mst. Bhuri made a departure. It is also significant that it was soon after the suit filed by the collaterals to challenge the sale by Mst. Bhuri in the year 1943 that the deed of adoption was got executed. The sole object of Sheodan Singh was to get the house and he has spared no pains in this behalf. Moreover, it is not necessary to probe into this matter any further in view of the decision of Supreme Court in Inder Singh v Gurdial Singh and another C.A. No. 141 of 1956. Civil Appeal No. 141 of 1956, decided on 10th of April, 1961. It is common ground that the parties are governed by custom. Their Lordships of the Supreme Court in Inder Singh''s case approved the decision of the Lahore High Court in Baj Singh and another v. Partap Singh 2, where in it was observed that- "There is ample authority for holding that the appointment in order to be valid must be made in some unequivocal and customary manner and the execution of a deed coupled with a long course of treatment his always been recognised as one of the modes of manifestating such an appointment." Their Lordships also approved of the decision in Chhajju v. Mehar Singh3, wherein it was held that-

The execution of a deed by the adoptive father was not enough and continuous subsequent treatment not having been proved, the adoption was not established.

In the present case, only the execution of the deed of adoption is established. No subsequent course of treatment by the adopter qua the adoptee is proved. On the contrary, in the school and college registers, the adoptee has been shown as the son of Sheodan Singh and not the son of Nathu Ram, husband of Mst. Bhuri. Similar is the case in the Army records, wherein the plaintiff took up service. Mst. Bhuri also owns landed property and plaintiff''s name does not figure after the year 1944 as owner of that property. It is Mst. Bhuri, who is still recorded the owner of the same. Some evidence has been led to show that there were some ceremonies performed at the time of adoption. This evidence has not been believed by the trial Court. I see no reason to differ from the assessment of the trial Court as regards the same. No disinterested evidence with regard to the performance of the ceremonies at the time of adoption has been produced. Moreover, in a customary appointment of an heir, ceremonies are not really conclusive as to the factum or validity of the adoption. Coupled with other evidence they have some significance in proving the factum as well as the validity of the adoption. But by themselves, they are really of no consequence. In a customary appointment of an heir, as already pointed out, there has not only to be a deed of adoption which must necessarily follow the ceremonies but also a subsequent course of conduct showing unequivocal intention on the part of the adopter that he had taken the adoptee as his son. So far as this case is concerned, neither the factum nor the validity of the adoption is proved. All that is established is that a deed of adoption was executed. So far as the execution of the deed of adoption is concerned, Sheodan Singh, father of the plaintiff, is the moving figure. The execution of the deed of adoption was part of his scheme to get the house in dispute absolutely to himself. It appears to me that the trial Court has come to the correct conclusion and there is no reason to interfere in its decision.

For the reasons recorded above, this appeal fails and is dismissed with costs.

Falshaw, C.J.

I agree.