Jhanda Singh and Others vs Jiwa and Another

Kapur, J.—This is a Defendant''s appeal against the judgment and decree of the Additional District Judge Mr. Guru Datta, affirming the decree of the Subordinate Judge, 2nd Class, Hoshiarpur.

The relationship of the parties will be clear from the pedigree table:

(See pedigree table on p. 215.)

Gurdas, son of Ram Ditta, was, on 8-7-1878, adopted by a collateral of his, Mihan. To evidence the adoption, a registered deed was executed which shows that Gurdas was taken in adoption at the age of 7 years and since then had been living with the adopter as his real son and that at the time of the adoption all the religious ceremonies had been performed. It is also mentioned therein that after the death of the adopter he will perform the obsequies. On the death of Labhu, the Plaintiffs who are the descendants of Kesar brought a suit for declaration that they are the heirs of Labhu and that Gurdas had no right to succeed and in the alternative they prayed for a decree for possession of the land in dispute. Their suit was decreed and on appeal to the learned Additional District Judge this decree was upheld.

The learned Additional District Judge relied on four factors, one that in the deed of adoption Gurdas had been described as a natural born son two that in the pedigree table he had been described as a real son, three that the deed of adoption, which was executed as long ago as 8-8-1878, showed that the adoption, was of a formal nature as it was accompanied.

HANSU | __________________________________________________________________ | | | | Mihan Amar Singh jamata Kesar | | | | | | _________________ ______________________________ Gurdas Bhola | | | | | Gandila Ram Ditta Khazani Dheru Raj mal (adopted son (dead) (dead) | (dead) (dead) | Defendant) | | | ____________________________|_ ____________________________________ | | | | Gurmukh Singh Jiwa Gurdas Labhu (Plaintiff 2) (Plaintiff 2) (Defendant adopted =Mt. Radhi by Mihan)

by religious ceremonies and fourth that when Gandila, the real uncle of Gurdas, died the latter was, in suite of his opposition excluded by Labhu. Taking all those facts into consideration, the learned Additional District, Judge came to the conclusion that the adoption was of a formal nature and therefore Gurdas could not succeed to the estate loft by his natural father.

Against this decree, Gurdas has come up in appeal of this Court. It has been submitted that the parties to these proceedings are Jats and are presumably governed by the provisions of custom which are contained in the Customary Law of tie District of Hoshiarpur. In the Customary Law of this district compiled by Mr. Humphreys the effects of adoption are given in questions 72 and 73. Questions 72 and 73 and their answers are as follows:

Q.72. Is an adopted son entitled to succeed to his natural father in case of the latter having no oilier lineal male issue?

A Generally an adopted son can only succeed to the estate of his natural father if the latter dies without the lineal male dependants but Jats of Gurhishankar koalas any that even in such a case he cannot succeed while Gujars of Tahsil Dasuva say he can even then only succeed with the consent of his natural father''s collaterals.

Q. 73. What right has the adopted son to succeed to his adoptive father? And what is the effect if a son is subsequently born to his adoptive father? Will the adopted son get an equal share with the natural sons and it the estate is to be divided by chundavand system what share will be get and if the adopted son does not belong to the caste of the adopter can be succeed?

A. In all cases of valid adoption, the adopted son succeeds as the natural son of his adoptive father even though a son is born to the father subsequent to the adoption. In families or tribes following the chundavand rule the adopted son succeed as if he were the son of another wife of his adoptive father. An adoption outside the tribe is not recognized.

This is the law which presumably governs the parties, and it appears to me that the learned District Judge had absolutely lost sight of this. Amongst Jats of Hoshiarpur District. the effect I of adoption is nothing other than nominees herders institution. If the Plaintiffs wanted to show that in this particular case or in their family or tribe there was a custom at variance with the custom as given in the riwaj-i-am they should have put that matter in issue and should have led evidence in support of it. From the more circumstance that a son is described as a natural born son in a deed of adoption or in the pedigree table or that the deed" of adoption refers to certain religious ceremonies which have boon performed will not, in my opinion, show that the adoption is of a different nature than that what it-should be in accordance with the provisions of the riwaj-i-am. The further circumstance that Labhu excluded Gurdas when the succession opened out on the death of Gandila, the uncle, is a circumstance which might have had soma relevancy if there was evidence to show that in this particular family when there is an adoption of a formal nature the adopted son is excluded from his right to succeed to his natural father.

In the present case no attempt has been made to show that the nature of adoption was like what it is in the Old Delhi territory. Counsel for the Respondent has with great ability tried to show that in the casa of adoptions of this kind, e.g., what he called formal adoptions, the adopted son is excluded from his right to inherit in his natural family. In support of this proposition, he has relied on certain cases. The first is a case of Jats of Tehsil Jagraon in the District of Ludhiana reported as Mutsaddi Singh v. Naraina 40 P.R. 1914 : (A.I.R. 1914 Lah. 379). It was there held that where an appointed heir lost all rights of collateral succession in his own natural family, custom often recognised his right to collateral succession in the family of the person who had appointed him heir. The present is not one of those cases. Here a very near collateral had adopted Gurdas and whether this would result in the right of Gurdas or his descendants from succeeding collaterally or not will not affect the rights which Gurdas had in his natural family.

Counsel then relied on Abdur Rahman Khan v. Raghbir Singh 51 P.L.R. 119 at pp. 131 and 132, Achhru Ram, J., there said at p. 131:

Some agricultural tribes in certain places have been found to be governed by a special custom under which adoption does not a amount to a mere appointment of an hair but has attached to it all the consequences which, flow from a full and formal adoption of the Hindu Law. Where such a special custom is found to exist it is not necessary for the adoption to have this result that it should take place in conformity with the rules of Hindu Law in the matter of ritual or otherwise because in the particular case, it in not the rule of Hindu Law that operates to attach such, consequences to the adoption, but it is the custom governing the adoption that does so, and, therefore one of the essential facts of an adoption involving a complete transplantation of the adoptee from one family to the other is to confer on him the right of collateral succession in the adopted family and to take away the right of such succession in his natural family.

But this case presupposes that it is an adoption of the, kind which takes place in certain parts of the Punjab and which is presumed to be a formal one as it is in the Old Delhi territory. Unless it is shown that the essential effect of the adoption in dispute is one which results in complete transplantation of the adoptee from his natural family to his adoptive family such a result as is given in this judgment, in my opinion, will not follow.

The learned Judge has again said at p. 132:

If, therefore, it can be shown that, according to the custom governing the tribe of Sher Singh, adoption carried with it a right of collateral succession in the adoptive family, and the logs of such right in the natural family, and thus involved a complete transplantation of the adoptee from the natural into the adoptive family Jagdev Singh must be held to be a descendant of Kirath.

That is exactly what we have to find out in the present case. So far as I am aware there is no case under custom where a son adopted in another family was excluded from his right to inherit in his natural family in the absence of natural brothers. No precedent of such a kind has been cited and researches in our law reports do not show that any such precedent exists, at least not to my knowledge. I am, therefore, of the opinion that merely because in a deed of adoption certain facto are recited does not show that a Jat adoption would result in the exclusion of the adopted son from his right in his natural family. In this connection I may refer to Inder v. Mukhtar ILR (1945) Lah. 343 : AIR 1945 Lah. 17 F.B.), a Full Bench case, where it was hold that among Jats of Malaud Pargana in the District of Ludhiana an adopted son succeeded to the property of his natural father in the absence of brothers and that among Hindu Jats governed by custom the mere performance of certain rites relating to adoption under Hindu Law would not convert the customary appointment of an heir into a formal adoption under Hindu Law. The provisions of the Riwaj-i-am of Ludhiana do not seem to be any different from that of the Hoshiarpur District and this case would govern the case before mo also. In my opinion, the learned District Judge misdirected himself in regard to the essentials of customary adoptions. His attention was not drawn to the pro visit of the Customary Law of the district, a therefore, he was in error when he held that adoption was formal or that the effect of (SIC) an adoption was the exclusion of the adopson from inheritance in his natural family the absence of natural brothers.

I must, therefore, allow this appeal f set aside the judgment and decree of the learned District Judge and dismiss the suit with d throughout.