Jangir Singh vs Sewa Singh

Chopra, J.—The facts that have given rise to this second appeal and its reference to a Full Bench are these:

Jangir Singh appellant was adopted by one Bishan Singh by means of a registered deed dated 8-4-1935. On Bishan Singh''s death, which took place in the year 1942, the land left by him was mutated in the name of Jangir Singh, but the possession of it was taken by Sewa Singh and others respondents who claimed to be Bishan Singh''s collaterals in the fifth degree. Jangir Singh then filed the present suit for possession of the land alleging that he was entitled to succeed to it as the adopted son of Bishan Singh. The defendants while denying the factum of adoption inter alia pleaded that the alleged adoption was invalid according to the custom by which the parties were governed and that the plaintiff had no right to succeed to the land which was ancestral in the hands of Bishan Singh ''qua'' them.

The trial court dismissed the suit holding that the land was ancestral, that the adoption of Jangir Singh who was not a kinsman of Bishan Singh was invalid according to custom and that the defendants as collaterals of Bishan Singh in the fifth degree were entitled to succeed to his estate, On an appeal by Jangir Singh the District Judge concurred with all these findings and dismissed the appeal. Jangir Singh preferred a second appeal to this Court which came up before one of my learned brothers who was of the opinion that the defendants had failed to prove the land to be ancestral and since the case raised a number of intricate questions of law, he referred it to a Division Bench. The Division Bench again considered the question of the nature of the land and arrived at the conclusion that it was not proved to have descended to Bishan Singh from the common ancestor and was, therefore, not ancestral ''qua'' the defendants.

When the appeal was argued before the Single Bench the learned counsel for the appellant conceded that since Jangir Singh was not a collateral of Bishan Singh the adoption was invalid according to custom, but when the case came up before the Division Bench the counsel took up the position that although Jangir Singh was not a collateral he was related to Bishan Singh through the latter''s mother and was therefore, one of his kinsmen. Going back on his previous admission which he described as erroneous on a point of law and placing his reliance on Para 35 of the Rattigan''s Digest of Customary Law, he argued that the adoption was valid. Another point raised by the counsel was that under the general custom self-acquired property was alienable according to the will and pleasure of the last male-holder and since In this case the land had not been proved to be ancestral the plaintiff''s right to succeed to it could not be challenged by the defendants. The Division Bench after formulating the following questions has referred the case to a Full Bench:

Does the term "kinsmen" used in paragraph 35 of Rattigan''s Digest of Customary Law mean a collateral, and if not can a distant relation like the great grand-son of the adopter''s mother''s father''s brother be regarded a ''kinsman''.

If a person governed by Customary Law adopts another person as his son and the adoption is later on set aside as invalid according to custom, can the adopted son succeed to the non-ancestral property of the adoptive father on the ground that his adoption was tantamount to a gift or request.

Para 35 of the Rattigan''s Digest of Customary Law reads as follows:

A sonless proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir

and the question is what did the learned author mean by the word "kinsmen", is it exclusively applicable to the collaterals of a ''sonless proprietor'' or covers his other relatives as well. It is significant that the learned author uses the word ''kinsmen'' only once and that in the paragraph itself. The word does not recur in his valuable contribution to the law; nor has any attempt been made to define it. Further, the authorities cited at the bar or those referred to in the paragraph are equally silent on the point at issue. In Webster''s New International Dictionary, the word is stated to mean "a man of the same race or family, one related by blood or (loosely) by marriage; a relation or a relative". Wharton''s Law Lexicon defines the term as

a man of the same race or family", and P. Ram Nathu lyre in his Law Lexicon of British India says that it means "one of the same kins, and so-related by blood.

Kindred or consanguinity according to section 24 of the Succession Act is the connection or relation, of persons descended from the same stock or common ancestor and u/s 26 of the Act Collateral consanguinity'' is that which subsists between two persons who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other. The Succession Act, however, does not make any distinction between persons who are related to a deceased person through his father and those who are related to him through his mother. Collateral is no doubt a kinsman but the two words are not synonymous, because a kinsman includes relations other than collaterals as well. The words collateral and kinsman are, therefore, not interchangeable. It has then to be seen whether ''kinsmen'' in para 35 of the Rattigan''s Digest of Customary Law means any relative, however, remotely connected or related, which in common parlance it denotes or is it used in its limited sense meaning, thereby only collaterals.

In order to find out the intention of the learned author, I would first refer to what is said in the commentary to the para itself. As already observed the word ''kinsman'' does not appear to have been repeated anywhere in the commentary but in its place words ''collateral'' or ''agnate'' are found to have been used. The question of onus of proving the existence or non-existence of such a custom is discussed in explanation 2 and it is stated that as the adoption of an agnate is followed by Hindu Law as well as by the custom prevalent generally amongst Hindus in the province, the initial onus of proving that the custom (of adoption) does not exist at all in the parties'' tribe, should be laid on the party so denying the existence of the custom. Again, Remark l at page 131 of the 11th Edition reads as follows:

But the appointment of a person of a different ''got'' or ''ghairkaum'' - such as a step-son - is, except at times in the case of a daughter''s or a sister''s son (as to which see para 37 and see also para 10, Remark 1), generally opposed to custom.

A number of authorities are quoted in support of this observation. One of them is ''MOMAN v. MST. DHANNI, 1 Lah 31 in which Broadway J. while discussing the question whether the adoption of a stranger was recognised by custom observed as follows:

As pointed out at page 54 of Rattigan''s Digest of Customary Law, the appointment of a person of a different ''got'' is generally opposed to custom and in paragraph 37 (by the same learned author points out that amongst agriculturists, especially in the eastern districts of the Punjab, such appointments are not now favoured and are to be presumed to be invalid.

The latest authority cited is ''JHOLI v. KHAZANA'', 8 Lah 48 and in that the question was whether a person of a different ''got'' could be validly adopted. Dalip Singh J. after referring to the ''Riwaj-i-Am'' of the particular District, which favoured the adoption of a collateral and provided that a person of the same ''got'' could also be adopted, concluded with the following observations:

Now, no doubt it is not clearly stated that a person of the same tribe but of a different ''got'' cannot be adopted but the implication would clearly be that such a person cannot be adopted. In Rattigan''s Digest of Customary Law, paragraph 35. and in Remark 1 at page 69 of the latest edition it is stated that at any rate for the Eastern and Central districts of the Punjab the general custom is against the adoption of a person of a different ''got''. The onus, therefore, of proving that a person of a different ''got'' could be adopted lay on the defendant and we do not consider that that onus has been at all discharged by the evidence produced by him and we, therefore, hold that it is not proved that the adoption of defendant No. 1 was valid.

Under Remark 1 already referred to above, it is also mentioned that a person of a different ''got'' though of the same tribe cannot validly be adopted. The intention of the author is further made clear by the next two paragraphs Nos. 36 and 37. The first of these reads as follows:

There are no restrictions as regards the age or the degree of relationship of the person to be appointed.

In remark No. 2, added to this para it is stated that

In regard to restrictions as to the person to be adopted, village custom at times requires the nearest available agnate to be selected for appointment... If a custom of adoption be proved to exist under which a, collateral may be appointed as a customary heir, the onus lies on the party asserting that there is any restriction operating to control the appointer in his selection.

''SANT SINGH v. MULA'', 44 Pun Re 1913 is one of the authorities cited in support of this proposition. A ninth or tenth degree collateral had been appointed in that case and the question was whether such a distant collateral in the presence of the nearer ones could be validly adopted. Robertson J. while dealing with the question made the following observations at pajre 175:

The general, though not the universal, principle held by the Jats and kindred tribes in the Punjab is undoubtedly that a man may appoint an heir from amongst the descendants of a common ancestor and that he need not necessarily appoint the nearest collateral.

The degree of relationship was considered to be immaterial by Shah Din J. in ''JIWAN SINGH v. PAL SINGH'', 22 Pun Re 1913 and it was held that according to the ''Riwaj-i-Am'' a Randhawa Jat could adopt a person from amongst his collaterals irrespective of his degree of relationship to him. Adoption of a ninth degree collateral in this case was held to be valid, and this is another authority cited in the Remark referred to above. In ''JIWA SINGH v. MT. CHANDI'', l Lah 39 and ''POHLO v. NATJWARDHAN'', 5 Lah 409 adoption of a brother and a brother''s grandson respectively was held to be valid and, in the second of these, it was observed that as the adoption of an agnate is allowed by Hindu Law as well as by the Custom prevailing generally in this province, the initial onus of proving that the custom of adoption does not exist should be laid on the party so denying the existence.

The instance given under this Para, in which adoption of relations other than collaterals was considered valid, depended upon the special custom of the parties and are only exceptions to the general rule. An examination of the authorities cited under para 36 shows that the rule of custom is that the degree of relationship of a collateral is immaterial for the purposes of adoption and that a remoter collateral can generally be adopted even in the presence of a nearer one.

Para 37 of the Digest is to the following effect :

(a) A daughter''s or a sister''s son amongst Hindu non-agriculturists, is generally recognised as a proper person to be appointed, (b) But amongst agriculturists, especially in the eastern districts of the Punjab, such appointments are not now favoured, unless made with the consent of the agnates; and under a Full Bench decision of the Chief Court ''RALLA v. BUDHA'', 50 Pun Re 1393, they are to be presumed to be invalid ''JHANDA v. BALWANT''. 39 Pun Re 1897.

If by ''kinsmen'' in para 35 the learned author meant any relation, it was not necessary to take up the case of a sister''s or daughter''s son separately. This para was probably meant to provide an exception to the general custom laid down in para 35 that a sonless proprietor could appoint one of his collaterals or agnates to succeed him as an heir. The three paras (35, 36 and 37) read together, the observations made under them and an examination of the authorities referred to indicate that "kinsmen'' as used in para 35, did not mean any and every relation of ''a sonless proprietor'' but his collaterals or agnates only.

A reference to the observations of some of the other authors on Customary Law may also be made in support of the view that I take. Shri Om Parkash Aggarwal M.A., P.C.S., in his book ''Customary Law in the Punjab'' in para 101 of Section 4 intituled as "who may be adopted" says that an agnate is generally preferred though he may not be the nearest agnate. Dealing with the adoption of a stranger or a person of a different ''got'', the author at page 574 observes that generally such a person cannot be adopted and the onus, therefore, of proving that a person of a different ''got'' can be adopted, lies on the person asserting it.

Mr. T.P. Ellis in his valuable book on Customary Law, at p. 20 describes the persons who may or may not be adopted & says that the general tendency is to restrict the right of adoption to same person in the line of succession, though the rule is not absolute. On the strength of a number of authorities, he further observes that the presumption is against the adoption of any but agnatic relation amongst the agriculturists and the onus is on the person alleging the contrary.

For all these reasons, I would answer the first part of question No. 1 referred to the Pull Bench in the affirmative. The second part of it could only arise if the answer to the first had been in the negative. In view of the conclusion arrived at by me the great grandson of the adopter''s mother''s father''s brother is not better than a stranger to him and the adoption of such a person is not recognised as valid under the general custom of the Punjab. No special custom authorising such an adoption has even been alleged and, therefore, the adoption in question must be held to be invalid.

Now with regard to the second question the principle is well established that an adoption under custom is purely a personal relationship and affects the parties thereto only. It is quite different from a ceremonial adoption under the Hindu Law and such an adoption does not involve the transplantation of a person from one family to the other. Customary adoption does not create filial ties, having any spiritual significance. It is a purely mundane affair or a sort of contract whereby a sonless man acquires the closest companionship of a person who helps him in the performance of worldly duties, e.g., management of land etc. In return for this benefit, he offers the right of succession to his land.

It is for this reason that the personal relationship thus formed is more correctly spoken of as an appointment of an heir'' rather than as adoption. There is no prescribed mode in which the appointment may be made; but, one essential requirement is that there should be an unequivocal manifestation of the appointer''s intention to appoint an heir. The appointment so made is to all intents and purposes tantamount to a gift that takes effect after the death of the appointer, or a bequest. Sir Meredyth Plowden in the well-known case ''RALLA v. BUDHA'', 50 Pun Re 1893 (FB) explained the nature of a customary adoption and the power of a sonless proprietor amongst the Punjab Agriculturists to adopt a son in the following terms: The power of adoption, when validly exercised, has precisely the same effect as regards the warisan ekajaddi or presumptive heirs, as a valid transfer of the adopter''s land by gift to the adopted son would have; it operates in fact as a transfer of his land, but a transfer taking effect after the death of the donor instead of in his lifetime.

Shadi Lal J. (as he then was) in ''MEHRA v. MANGAL SINGH'', 99 Pun Re 1914 while holding that by custom property which comes to an appointed heir as such, is not ancestral ''qua'' the tatter''s son observed as follows: "Now it has been held in many cases that the appointment of an heir is tantamount to a gift which comes into operation on the death of the appointer and that the property received by the appointee should be regarded in the nature of bequest.

Again in ''MST. BASANTI v. NATHA''. 12 Pun Re 1916 the same Hon''ble Judge made the following observations:

The proposition is absolutely clear that the customary appointment of heir - and the present adoption is one of that kind - is to all intents and purposes tantamount to a bequest, and, we fail to understand why a person who cannot contest the power of "testamentary disposition of a proprietor should be allowed to challenge the power of nominating an heir. This principle is, in our opinion, a result of the legal incidents which attach to the institution of the appointment of heir and is recognised in a Division Bench judgment reported as ''SANT SINGH V. SADDA'', 63 Pun Re 1912.

In AIR 1944 90 (Lahore) the question before the Full Bench was whether a gift made by the widow of an appointed heir in favour of the latter''s daughter could be successfully challenged by collaterals of the appointer. The question depended upon the nature of the property acquired by the appointed heir and its reversion on the latter''s death without leaving any male direct descendant. Abdul Rashid J., who delivered the judgment with which his learned colleagues agreed, while refuting the argument of the appellant that it was wrong to say that the appointment of an heir operated as a gift of the property in favour of the adopted son and the property would revert to the collaterals of the adopter only on the total extinction of the lineal descendants of the adopted son, made the following observations at page 93:

I am of the opinion that the position of an appointed heir under the Punjab Customary law is materially different from the position of a son adopted under the Hindu law. In the former case only a personal relationship is established between the appointed heir and the appointer. There is no transplantation of the adopted son from his natural family into the family of his adoptive father. Moreover, an appointment of an heir only affects the parties thereto. The appointed heir does not become the grandson of the appointer,......So far as the nature of the property is concerned, the appointment of an hear and a gift stand on the same footing.

Another principle of Customary Law that is equally clear and cannot be disputed is that non-ancestral property in the hands of a last full owner is alienable according to his will and pleasure. Under custom when an alienation is made by a childless proprietor the right of his collaterals to impugn the alienation is derived from the common ancestor, and unless it is proved that the property alienated was owned by that ancestor and had devolved upon the alienor by succession, the collaterals have no ''locus standi'' to challenge the alienation. This has been clearly laid down in paras 58 and 59 of the Rattigan''s Digest of the Customary Law. A sonless male-holder can thus at his will and pleasure make a gift of his entire self-acquired property during his life time or a testamentary disposition to take effect after his death and such a gift or bequest cannot be challenged by the collaterals.

The obvious and natural consequence of these two well-recognised and undisputed principles of Custom is that the collaterals of an appointer have no ''locus standi'' to challenge the appointment of heir (which tanta mounts to a gift taking effect after the death of the adopter or a bequest) so far as the non-ancestral property affected by the appointment is concerned. Just as they cannot impugn the gift or will with respect to non-ancestral property, they cannot challenge the appointment of heir made by the last male holder. The collaterals have no right to succeed to the self acquired property of the donor or legator in the presence of the donee or legatee. It, therefore, necessarily follows that so far as the non-ancestral property is concerned, the collaterals cannot be heard to say that the appointment was invalid or that the appointed heir could not succeed in preference to them. The result would be the same even though the adoption or appointment was not strictly in accordance with custom and could be declared invalid so far as the property over which the adopter had a restricted right of alienation, was concerned.

This very point was at length considered by a Division Bench of the Lahore High Court in ''SANT SINGH v. SAD DA'', 63 Pun. Re. 1912 and it was held that under Customary Law, a childless proprietor has the power of alienating his property if non-ancestral ''qua'' his collaterals, in any way he pleases and that consequently the collaterals of such a proprietor are not entitled to obtain possession of his non-ancestral land to which the person adopted by him has succeeded by virtue of his adoption, even though ''per se'' the validity of adoption may be open to question. It was further held that in such cases adoption has the same effect as a gift of his land by the adoptive father to the adopted son. Shah Din J. in the course of his judgment made the following observations at page 233:

In the present case, it is unnecessary to decide whether the deed of adoption executed by Musaddi in favour of Dial Singh is or is not a deed of gift or a will, as in our opinion the property in dispute being the non-ancestral property of Musaddi as regards the plaintiffs, he had every power to transfer it in any way he pleased to Dial Singh; and this he has done by adopting him, or, in another words, by appointing him as his heir so as to enable him to succeed to the property in suit after his death.

Again at page 239 the learned Judge after reproducing certain passages from the judgment of Plowden J. in ''RALLA v. BUDHA'', 50 Pun. Re. 1893 (F.B.) observes:

It is clear from the above extracts from the judgment of Sir Meredyth Plowden, that among agriculturists in the Punjab the power of adoption has the same effect as regards agnates or presumptive heirs of a sonless proprietor as a valid transfer by him of his land by gift to the adopted son would have; and it follows that the heirs of the adopter who trace their descent along with him from a common ancestor, would have the right by custom to interfere with his power of adoption only in cases where they would have a right to control his power of disposition in respect of the land to which the adopted son would succeed by virtue of his adoption.

Customary adoption is only one mode by which the normal devolution of a sonless proprietor''s property according to ordinary rules of inheritance is altered; it operate in fact, as pointed out by Sir Meredyth Plowden, as a transfer of his land, but a transfer taking effect after his death instead of in his life time. If, then the nature of the property so transferred by adoption in favour of the adopted son is such that the agnatic relations of the adopter could not object to an alienation of it by him, they should have no right to impugn the adoption, by means of which the adopter effectively transfers that property to the adopted son.

It would certainly be anomalous if the collaterals were competent by custom to impugn the adoption and to recover from the adopted son the property so transferred to him, though if a gift of the property ''inter vivos'' or by will had been made by the sonless proprietor concerned in favour of a perfect stranger, between whom and such proprietor there existed no sort of personal relationship such as is implied in customary adoption, they would be unable to prevent the transfer of the property taking full effect to the detriment of their own right of succession.

I am in respectful agreement with the observations reproduced above. A similar view was taken in a recent case decided by my brother Hon''ble the Chief Justice, ''RANJIT SINGH v. JOGINDER SINGH'', R. S. A. No. 290 of 2006 D/- 1-5-52.

In this case the adopted son was not related to the adopter and the adoption was, therefore, held invalid by the trial as well as the first appellate Court. In second appeal to the High Court it was argued that since the adoption was invalid according to custom the position of the adopted son was that of a trespasser and the property would pass on to the collaterals after the death of the adopter. Hon''ble the Chief Justice refuted the argument with the following observations :

It may also be mentioned that according to Customary Law when an alienation is made by a childless owner or he appoints someone as his heir the right of his collaterals to challenge the alienation or the appointment is derived from the common ancestor and unless it is proved that the property affected by the alienation or the appointment was owned by that ancestor and had devolved upon the alienor or the appointer, as the case may be by succession the mere fact that they are his collaterals cannot give them any ''locus'' to challenge either the alienation or the appointment.

Reference in the judgment was also made to section 7 of the Patiala Custom (Power to Contest) Act, 2000 Bk. which lays down that notwithstanding anything to the contrary contained in any other law for the time being in force no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom. It is correct that this provision of law has no application to the present case because here the adoption took place before the Act came into force, but the section only gives a legislative sanction to the custom which is generally recognised amongst the agriculturists in this part of the country. ''MOHAR SINGH v. NIRANJAN SINGH'', 3 Pepsu LR 423 is another decision of this Court in which a similar view was taken. For ail these reasons I would answer the second question in the affirmative.

Now coming to the facts of the case in question, it has already been found by the D. B. that the land the possession of which is sought by the adopted son was not ancestral in the hands of the adopter ''qua'' the defendants his collaterals who succeeded in getting possession of it after the death of the adopter. The factum of adoption is abundantly established by proof of the registered, deed dated 3-4-1935 and the evidence of the witnesses examined by the plaintiff. Both the courts below have held in favour of the plaintiff on that point and the concurrent finding has not been challenged by the respondent before us. It is, however, urged that the plaintiff could not oust the collaterals from the land, even though it be non-ancestral, when the adoption in his favour was not held to be valid under custom.

Some of the authorities referred to above are distinguished on the ground that the adopted heir in them was in possession of the property and he Was sought to be ejected by the collaterals who were held to have no ''locus standi'' to challenge the adoption so far as the self-acquired property of the adopter was concerned. To me the distinction does not appear to be of any importance.

If the customary adoption only amounts to a gift which takes effect after the death of the adopter or a bequest and the deed of adoption is registered and clearly manifests the intention of the executant to benefit the person described as the appointed heir, I do not see any reason why effect should not be given to it simply because the collaterals who otherwise have no ''locus standi'' to challenge the gift or bequest have somehow succeeded in getting possession of the land on the death of the appointer and the appointed heir has to seek assistance of the court as a plaintiff.

The gift or the bequest was to take effect after the death of the donor or legator and nothing stood in the way of the plaintiff to get possession of the land gifted or bequeathed. The possession of the collaterals for any period less than 12 years could not non-suit the plaintiff. The adoption deed in the present case, stated that Jangir Singh was living as his son with Bishan Singh for the last years and since his (Jangir Singh''s) childhood and it unequivocally mentioned that Jangir Singh would inherit adopter''s entire movable as well as immovable property alter his death. On behalf of the respondent, it is next contended that the bequest in favour of Jangir Singh was made only on the assumption and belief that he was a validly adopted son of the legator and since the adoption has been held to be invalid no effect can be given to the bequest. Reliance in support of the argument is placed on the two decisions of the Lahore High Court AIR 1924 103 (Lahore) and AIR 1929 20 (Lahore) The facts of these cases, however, were quite different from those of the present case.

In AIR 1924 103 (Lahore) the alleged instrument of adoption did not mention any gift ''inter vivos'' to the plaintiff of that case or any testamentary disposition in his favour and even the factum of adoption was not held to have been proved. ''SANT SINGH v. SADDA'', 63 Pun Re 1912 (referred to above) was found to be distinguishable on these grounds and it was held that since the deed contained merely a declaration of adoption, which declaration was found to be incorrect, and did not refer to any property of the adopter it could not by any stretch of reasoning be treated as a gift or a testamentary disposition in favour of the plaintiff. During the course of his judgment Shadi Lal J. placing his reliance on ''FANINDRA DEB v. RAJESWAR DAS'', 11 Cal 463 (PC) and ''LALI v. MURALIDHAR'', 28 All 488 (PC) was pleased to make the following observations:

Where a deed contains a testamentary disposition in favour of the person believed to be the adopted son it is a question for consideration whether on the failure of adoption the gift also fails. The court has to decide in each case after considering the language of the document and the surrounding circumstances, whether the adoption was the reason or motive for making the gift or bequest, or whether the mention of the donee or legatee as an adopted son was merely descriptive of the person to take under the gift or bequest and he was to take the property even though his adoption may not be valid. This is the law with respect to cases where there is an express gift or bequest in favour of an alleged adopted son.

The instrument before us, however, does not mention any gift ''inter vivo'' to Surat Singh or any testamentary disposition in his favour. It contains merely a declaration of adoption, which declaration has been found to be incorrect, and does not even remotely refer to any property held by Ganda Singh. We fail to understand how such a deed can be treated as a deed of gift... As pointed out above, even the factum of adoption has not been proved in the case before us, and there is therefore, nothing in the deed which could by any stretch of reasoning be treated as a gift or a testamentary disposition in favour of Surat Singh.

In the first instance after arriving at the conclusion that the factum of adoption had not been proved in the case & that the deed did not go any further the learned Judge could have avoided the observations quoted above and can, therefore, be safely said to be in the form of an ''obiter dicta''. Secondly, neither of the cases relied upon by the learned Judge related to an adoption under Customary Law of the Punjab. In any case, the observations have no application to the facts of the present case because, as already observed, the document here unequivocally declared that Jangir Singh would inherit'' all the property of the executants after his death. In AIR 1929 20 (Lahore) the court had held that the adoption deed, which was not registered, was executed by an old man of feeble intellect whose wife had acquired a complete mastery over him.

It was further found that he was not in proper senses at the time of the execution of the deed and that it was one of the various infructuous attempts made by him under the influence of his wife to benefit her sister''s son and that he was not a free agent and did not possess a disposing mind. The deed was not acted upon during the life time of the adopter and a previous adoption made by him had already been held to be invalid on a suit brought by the collaterals. The document upon which the plaintiff relied could not, for want of registration, be admitted in evidence in order to prove the gift and the oral evidence was equally inadmissible. It was under these circumstances that the following observations, reliance on which is placed by the respondent''s counsel were made by Shadi Lal C. J.:

The proposition of law is firmly established that where a gift is made to a person who is described as possessing a particular character or relationship the gift may be made to him on account of that relationship so that if the relationship fails, the gift cannot take effect.

This observation again after the finding arrived at on the merits of the case was not absolutely necessary and can be taken as an ''obiter dicta''. Otherwise also, this has no application to the fact of the present case. Bishan Singh had done all that was necessary to make a valid appointment of heir and had in unmistakable terms through a registered deed declared his intentions with respect to the devolution, after his death, of the property over which he had an unrestricted right of alienation. I do not see any ground why effect should not be given to the disposition made by him in favour of Jangir Singh. I would, therefore, accept this appeal with costs, set aside the judgments of the courts below and pass a decree for possession of the suit land in favour of the plaintiff.

Gurnam Singh, J.

10a. I agree.

Teja Singh, C.J.

I entirely agree. As regards the first question formulated by the referring Bench the Dictionary meaning of the term "kinsman" is, a blood relation or a person belonging to the same race or family though it is also loosely used to denote a relation or a relative of every kind. In order to find out in what sense it was used by Rattigan in paragraph 35 of his book we must take into consideration the fact that the learned author was not ''laying down the law or drafting a statute but he was merely describing what the custom on the point was. Taking into consideration the fact that not a single case has been cited before us, in which it was held that when a man possesses the power to adopt he could take into adoption any person other than a person who had descended from the same common ancestor as the adopter, that is to say, an agnate, it is clear that the term "kinsman" was used in paragraph 35 in the narrower sense and means only an agnate.

This conclusion is further strengthened by clause (b) of paragraph 37 of the book which describes the custom relating to the appointments of daughter''s or sister''s sons. Particular reference is made in this clause to two Full Bench decisions Of the Punjab Chief Court viz. ''RALLA v. BUDHA'', 50 Pun Re 1893 (FB) and ''JHANDA v. BALWANT'', 39 Pun Re 1897. It was held in HARRI SINGH v. GULABA'', 50 Pun Re 1874 that by general custom Of the Punjab the adoption of a daughter''s or sister''s son was valid. This case was considered in '' 50 Pun Re 1893'' and Plowden C.J. with whom the other members of the Full Bench agreed, made the following observations:

The second important point to which these records testify is that though adoption of a non agnate, and especially of a daughter''s or sister''s son, or son-in-law, may be valid, in presence of agnates, it is quite exceptionally so, more particularly in the presence of near agnates. This general remark holds good equally of Hindus and Mohammadans; but it is probable at the same time that adoption of a daughter''s son is most likely to be tolerated, where the marriage rule of endogamy has been so far established that descendants of a common male ancestor are allowed to intermarry, - that is to say where the daughter''s husband may be of the same genealogical family as her father, and need not as in the exogamous ''got'' be of a strange family....

I think therefore that we are fully warranted in holding generally, - creed, tribe and locality apart - that when a sonless man in any land-holding group which recognises a power to adopt, asserts that he is competent to adopt a daughter''s son or other non-agnate in presence of near agnates, irrespective of their assent, the presumption at the outset is against the power....

Now, if the learned author had intended the term "Kinsman" to denote any relation other than an agnate he would certainly have said so, or at least he would have given reasons for taking a view which is obviously different from the view taken by the Full Bench in ''RALLA v. BUDHA'', 50 Pun Re 1S93 (FB). I may also point out that though paragraph 35 has been referred to in a large number of cases decided by the Chief Court Punjab as well as the High Court of Lahore and Simla nowhere it has been held that according to the general custom of the persons a relation other than an agnate can be adopted.

As regards the second question, we have to take into consideration two important factors. One is that so far as non-ancestral property is concerned, general custom gives an owner unlimited power of disposal and his collaterals and heirs have no ''locus standi'' to question these powers. The second is that customary adoption or, to put it more correctly, the appointment of an heir, however it is allowed, is tantamount to a bequest to take effect on the death of the adopter, that is to say, where a person appoints another as his heir, the latter is entitled to succeed to the property left by him on his death. In case the property be ancestral, his collaterals can challenge the appointment on the ground that it was not in accordance with custom or it was vitiated by any other kind of defect but when, the property is non-ancestral it must devolve upon the appointed son because of his appointment as heir and the collaterals of the appointer have no right whatsoever to question the validity of the appointment. This being the case the question whether the appointed hen is in possession of the property at the time his right to succeed to it accrues or it is in the "possession of the collaterals of the appointer is not material.