Shamsher Singh vs Deputy Custodian General

Mian Jalal-ud-din, J.—This petition seeks to quash the order of the respondent No. 1 dated 4th April 1969 cancelling the allotment of the

land made in favour of Mst. Gogri the deceased. The petitioner claims the said land as the adopted son of the deceased.

The case of the petitioner is that Mst. Gogri was allotted 8 acres of land by the joint Rehabilitation Board before 1954. At the time of allotment

her family consisted of two members Mst. Gogri herself and Prakasho her daughter. Parkasho was married outside her parents house. Mst. Gogri

adopted the petitioner as her son and executed a deed of adoption in his favour. The petitioner thus became a member of her family. As the deed

of adoption was a registered document a presumption was created in favour of the adoption u/s 16 of the Hindu Adoptions and Maintenance Act.

On the death of Mst. Gogri the P. R. O. did not accept the Petitioner as the adopted son of Mst. Gogri as he was of the opinion that the petitioner

had no right to hold the land as no adoption had taken place. He therefore quashed the allotment in favour of Mst. Gogri and allowed the petitioner

to retain only two acres of land. On appeal the Deputy Custodian General Respondent No. 1 affirmed the order of the P. R. O. The respondent

No. 1 observed that allotment was not to be governed by the law of succession and the story of adoption was a faked one made with a view to

grab the said land. But these observations are unfounded. The petitioner has submitted that he being the adopted son of Mst. Gogri was entitled to

retain the land allotted to Mst. Gogri and the respondents could not divest the petitioner of the said land. The respondents contested the petition on

the ground that the petitioner could not maintain the writ as the subject-matter of the petition related to matters of allotment of land. The rights of an

allottee in the land were personal and not heritable or transferable. The adoption of the petitioner has been denied both in fact and in law, it is

submitted that the petitioner could not acquire the land of Mst. Gogri who was an allottee by operation of the law of succession, as allotment could

not be governed by such a rule.

The case was originally heard by a Division Bench of this Court. In the opinion of the Division Bench as the petition raised important questions

of law relating to the applicability of the personal law of succession to the case of an allottee and also the scope of Section 16 of the Hindu

Adoptions and Maintenance Act 1956. and as these points were in the opinion of the D. B. likely to arise in many cases, the matter was therefore

felt important to be decided by a Full Bench. It is in these circumstances that this case has been placed before Us.

Appearing for the petitioner Shri I. D. Grover has contended that the petitioner is the adopted son of Mst. Gogri the original allottee of the land.

At the time the allotment was made her family comprised of two members: herself and her daughter Parkasho. Parkasho was married outside her

mother's house leaving Mst. Gogri the sole surviving member. Gogri adopted the petitioner which she could do under the Hindu law. She executed

the deed of adoption in his favour. A presumption was created u/s 16 of the Hindu Adoptions and Maintenance Act in favour of the adoption of

the petitioner. There was no material brought on the record by the respondents to displace this presumption. It having been established that the

petitioner was the adopted son of Gogri the petitioner could legitimately retain the allotted land of Gogri as her adopted son, and the respondent

No. 1 could not deny this right to the petitioner. It is urged that just in the case of all other families which expand by births the interests in the

property held by the head of the family devolve on the survivors of the family or on the heirs of the deceased according to the operation of law of

succession, similarly in the case of families in whose favour allotments of land have been made and which also expand by births, their interests in

the allotted land devolve on the survivors, notwithstanding the fact that their names do not appear in the order of allotment. It is submitted that

these allotments have continued even after the death of the head of the family and must in law continue; otherwise allotment in favour of a family

would be meaningless if its intention is to cease on the death of the head of the family in whose favour it has been made and the survivors are not

allowed to retain the allotted land. It is urged that in the instant case the petitioner being the adopted son possesses the legal capacity to acquire the

property of his adoptive parent and it cannot be said with any authority as has been held by the respondent No. 1 that an adopted son cannot

acquire any interest in the allotted property.

The additional Advocate General appearing for the respondent No. 1 has, on the other hand, submitted that allotment is only a licence and does

not create any interest or right in the property in favour of the allottee. Reliance is placed upon a Full Bench decision of this Court reported as AIR

1956 J & K 33 (FB). It is submitted that after the death of the head of the family or the last surviving member of the family in whose favour the

allotment is made allotment ceases to have any effect. Reliance is placed upon SRO 328 dated 23rd of June 1969 which provides an amendment

to the Rules sanctioned under Cabinet Order No. 578-C of 1954. Rule 2 of the aforesaid SRO provides that after an allottee has died or

otherwise ceased to be in possession of the allotted land, his interest in the allotted land shall devolve on the other members of his family (in whose

favour allotment of land had been originally made or regularised under the said rules) under the rule of survivorship and not on those who were not

included in such family at the time of first valid allotment. As Mst. Gogri has died leaying no survivor, therefore the allotment has ceased to exist

with her death. The petitioner cannot acquire any interest in the land as the aforesaid rule cannot help him. It is further submitted that, in the case of

Mst. Gogri allotment was made before the order 578-C of 1954 came into force. The order of allotment of land was made in her case by the

Provincial Rehabilitation Board which had no legal existence, therefore the allotment, had no legal sanctity and no right could devolve on the

petitioner. On the question relating to adoption of the petitioner it is urged that the respondent No. 1 and the Provincial Rehabilitation Officer have

not believed the story of adoption therefore this being a finding of fact could not be challenged by the petitioner or gone into by the court in the writ

proceedings.

We have given our best consideration to the case.

The argument of the learned counsel for the respondent that Rule 2 of S. R. O. 328 of June 1969 operates as a bar to the petitioner to claim the

land in dispute is devoid of any merit inasmuch as the said S. R. O. came into force much after the death of Mst. Gogri who died in October 1965.

The S. R. O. has got no retrospective application and therefore Rule 2 of the S. R. O. cannot govern the case of the petitioner.

Another argument of the respondent that the allotment in favour of Mst. Gogri was not made in pursuance of Cabinet Order No. 578-C of

1954 but by the Rehabilitation Board, the competence of which was called in question by a Full Bench of this Court, (Vide AIR 1956 J & K 33

(FB)) and therefore the allotment is destitute of any legal effect has also got no substance because all allotments made before the Cabinet Order

No. 578-C of 1954 appear to have been confirmed under proviso to Rule 4 of the said order. The allotment in the present case would therefore

be deemed have been confirmed under this rule and its incidents and effects would be governed by the same.

The more important question however, that requires our consideration and falls for determination is: what is the nature of the interest of an

allottee in the land held by him or her under the Cabinet Order No. 578-C. and whether the petitioner has got a right to claim an interest in the

same?

In my opinion the answer to this question depends upon the construction of the expression 'allotment' as used in the Administration of Evacuee

Property Act and the rules made thereunder. 'Allotment' in the Administration of Evacuee Property Act of 2006 under which Cabinet Order No.

578-C has been made, is defined as a grant by Government or Custodian of a temporary right of use and occupation of any immovable property

to a person otherwise than by way of lease. So this is only a licence with all its incidents and effects. A Full Bench of this Court in AIR 1956 J & K

33 (FB) has also enunciated the view that allotment is only a licence, it can be revoked by the appropriate authority under certain conditions. Thus

we find that the incidents of an allotment is not to confer ownership of the land allotted on the allottee as has been held by the Supreme Court in

Amar Singh Vs. Custodian, Evacuee Property, Punjab, at p. 600. It cannot be held that the interest of an allottee is property within the concept of

that word so as to attract the protection of fundamental rights, as 'property' to fall within the scope of Article 19 (1) (f) of the Constitution of India

must be capable of being the subject-matter of 'acquisition' and 'disposal'. In the view of the Supreme Court the interest of the allottee arises by

statutory grant to a specified class of persons and is not capable of acquisition by the citizens in any of normal modes, nor is it capable of disposal

by the allottee himself in the normal modes by way of sale, mortgage or will. That being the position it cannot be said that the heirs of an allottee

including the adopted son can claim the allotted land by operation of law of succession, although the Government or the appropriate authority may

allow the survivors of the family to retain the allotted property not by operation of law of succession but only on the ground of public policy,

expediency, exigencies of situation or convenience so as to allow the family to continue to retain the property as licensee. This brings us to the

consideration of the question of the pretension of the petitioner that he is the survivor of the family of Mst. Gogri as her adopted son. We find that

the Provincial Rehabilitation Officer and the respondent No. 1 have negatived the contention of the petitioner that he is the adopted son of Mst.

Gogri. The contention of the learned counsel for the petitioner that there was a registered deed of adoption in favour of the petitioner which created

a presumption in favour of adoption u/s 16 of the Hindu Adoptions and Maintenance Act and that therefore the courts below had committed a

legal error in this regard is devoid of merit in as much as Section 16 can have no application to the present case. A presumption u/s 16 of the Act

can be raised if the adoption is made under the Act. Here the petitioner is alleged to have been taken in adoption six years before the execution of

the deed of adoption and before the Act came into force. According to Section 5 of the Act all such Adoptions as are made after the

commencement of the Act are to be regulated by the Act. It is only in respect of those adoptions made after the commencement of the Act that

presumption u/s 16 of the Act can be drawn. But, as pointed out above, the alleged adoption in the instant case was made in the year much before

the Act came into force, therefore no such presumption can be drawn u/s 16. This is also in view of Section 30 of the Act which provides that

nothing contained in the Act shall affect any adoption made before the commencement of the Act. and validity and effect of any such adoption shall

be determined as if this Act had not been passed.

Again, as it appears from the recitals of the adoption deed that its execution and the factum of adoption are not contemporaneous acts

therefore it lay heavily upon the petitioner to have proved of his having been given and taken in adoption. It appears that the petitioner did not

adduce any evidence in the courts below to substantiate the fact of adoption. The question of adoption being a question of fact which has been

negatived by the courts below, this court cannot go into this disputed question and substitute its own finding for the finding of the respondent No. 1

and the Provincial Rehabilitation Officer.

The result is that the right of the petitioner having not been established no writ can be issued in his favour. The writ petition, therefore, stands

dismissed, but in view of the circumstances of the case the parties are left to bear their own costs.

S. M. F. Ali Cheif Justice:-

I agree.

S. Wasi-ud-din, J.:-

I agree.