Teja Singh and Others vs Kesar Singh and Others

Kapur, J.—This is a Defendants'' appeal against a judgment and decree of the Additional District Judge, Amritsar, allowing an appeal against a judgment and decree of Mr. Jagdish Narain Kapur who dismissed the Plaintiffs'' suit.

In order to understand the case it is necessary to refer to the following pedigree table of the family:

(See pedigree table on page 118)

Jowala Singh son of Wisakhi in the line of Lakha adopted Hakam Singh son of Malla, in the line of Jowahar Singh. Jowala Singh son of Jaiwal in the line of Massa died and mutation of his estate was entered on appeal in favour of the collaterals excluding the descendants of Hakam Singh. On the 29th of November, 1946, Hakam Singh''s sons, Kesar Singh, Diwan Singh and Gian Singh brought a suit for joint possession claiming one-fourth estate of Jowala Singh alleging that the adoption of Hakam Singh was according to Hindu Law and therefore there was a complete transplantation in the adoptive family and even under custom he was entitled to get his share as the son of Malla. The trial Court held that the adoption of Hakam Singh was a customary appointment of heir and that the Plaintiffs were not entitled under custom to succeed collaterally in the family of the adoptive father. An appeal was taken to the Additional District Judge, Amritsar, by the Plaintiffs who held that Hakam Singh was adopted when he was 12 days old more than fifty years ago and when his mother was dead, that in the previous litigation of the year 1892 a finding had been given ''inter partes'' that there was a regular giving and taking of the boy and that Hakam Singh did not inherit the estate of his natural father when he died, nor did he share in the estate when his natural father''s brother Walla died, and "therefore it was as complete an adoption as a jat, adoption can be." I must frankly confess that this finding is as completely ununderstandable as it possibly could be. The fact remains, however, that, after the adoption, Hakam Singh did not inherit either in the estate of his natural father or in the estate of Malla''s brother Walla. The Additional District Judge also held that because of the reason he had given Hakam Singh''s sons could inherit collaterally.

Dharmun | ____________________________________________________________________________ | | | Jita Lakha Massa | | __________________________ ________________________ | | | | Jowabar Singh Wisakhi Jailal Achhru | | | Jowala Singh Jowala Singh Ghasita | Hakam Singh adopted son | __________________________________________________________ | | | Kesar Singh Diwan Singh Gian Singh __________________________________________________________________________ | | | | | Nihala Khushala Walla Malla Jhandu | | _______________________________ _________________ | | | | Indar Singh Wadhawa Singh Mula Singh Santu | __________________________________ | | | Ghulla Singh Suba Singh Gurdit Singh

Mr. Roop Chand Chaudhri in appeal submits that the general custom of the province is that a son appointed under custom does not succeed collaterally in the family of his adoptive father and he relies on paragraph 49 of Rattigan''s Digest of Customary Law:

Nor, on the other hand, does the heir acquire a right to succeed to the collateral relatives of the person who appoints him, where no formal adoption has taken place, inasmuch as the relationship established between him and the appointer is a purely personal one.

He has also relied on a judgment of the Chief Court in Chetu v. Jawand Singh 107 P.R. 1913, where it was held that among Sikh, Jats of Tarn Taran Tahsil of Amritsar District an appointed son does not succeed collaterally in the adoptive father''s family. This judgment is based on several other decided cases of other districts and on Article 49 of Rattigan''s Digest of Customary Law, but it is stated there that neither the Record of Rights nor the Customary. Law of the Tahsil or District nor any instances had been cited in that case. In my opinion, this judgment is not of much assistance in this case.

In Rattigan''s Digest at P. 218, there are given several cases showing that collateral succession was permitted in various districts and instances are given of Cheema Jats of Sialkot District and of Hindu Jats of Gurdaspur District. It is no doubt true that the custom as stated in Rattigan''s Digest of Customary Law has to be taken as a statement of very high authority, but in the present case in the Riwaj-i-am of 1914 compiled by Sir Henry Craik question No. 91 and answer to it is as follows:

Q. 91. Can an adopted son succeed collaterally in the family of his adoptive father?

A. All the tribes state that an adopted son succeeds collaterally in the family of his adoptive father, with the exception of Brahmans and Khatris of Neshta, who say that he does not do so. The rule defined by the Courts, however, is that an adopted son has no right to succeed in this manner. The latest ruling on this point is Chetu v. Jawand Singh 107 P.R. 1913, in which it was held that among Jat Sikhs of the Tarn Taran Tahsil an adopted son, appointed by the usual customary method, does not succeed to collaterals and his adoptive father''s representative.

The ruling given in this Customary Law is the same which I have already referred to above. In the Riwaj-i-am of 1940, Exhibit P. 7, questions 88 and 90 and their answers are as follows:

Q. 88. What are the rights of an adopted son in the estate of his adoptive father?

A. All tribes. The adopted son has the same rights in the estate of his adoptive father as that of natural sons.

Q. 90. Has an adopted son any rights of collateral succession in the family of his adoptive father?

A. Yes. For mutations see Appendix No. 1 and for decided cases see Appendix No. 2.

It has been held by their Lordships of the Privy Council in Mt. Vishno Ditti v. Mt. Rameshri 10 Lah. 86, that where a custom is alleged a duty is imposed on the Courts to endeavour to ascertain the existence and nature of that custom and the local Government has come to their assistance by establishing a Riwaj-i-am or record of custom in the different parts of the Punjab, Sir John Willis said:

It has been held by this Board that the Riwaj-i-am is a public record prepared by a public officer in discharge of his duties and under Government rules; that it is clearly admissible in evidence to prove the facts entered therein subject to rebuttal; and the statements therein may be accepted even if unsupported by instances Beg v. Allah Dilla 45 P.R. 1917 and Ahmad Khan v. Mt. Channi Bibi. 6 Lah. 502.

Mr. Roop Chand Chaudhri submits that the custom contained in question No. 91, in the Riwaj-i-am of 1914 has been held not to be a correct record of custom in Jagat Singh v. Ishar Singh 11 Lah. 615, but that was not a case which related to a right of an appointed son to succeed in the family of his adoptive father. The case related to the succession of a son who had been taken out of the family by adoption from succeeding collaterally in his natural family, and therefore I am unable to derive any assistance from this case for the purpose of deciding the matter before me.

In the present case there are the entries in the Riwaj-i-am of 1914. Question No. 91, and in the Riwaj-i-am of 1940 Questions Nos. 88 and 90 which show that in this district the custom is that an adopted son appointed according to the customary law has a right of collateral succession. No instances have been shown at variance of this custom. No doubt Mr. Roop Chand Chaudhri relied on Chetu v. Jawand Singh 107 P.R. 1913, which is from this district but in that case no reference is made to the Riwaj-i-am of the District or of the Tahsil. In these circumstances my opinion is that the learned District Judge has rightly held that the Plaintiffs have a right of collateral succession. I, therefore, dismiss this appeal with costs throughout.