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PETITIONER: KARTAR SINGH (MINOR) THROUGH GUARDIAN BACHAN SINGH

       Vs.

RESPONDENT: SURJAN SINGH (DEAD) AND ORS.

DATE OF JUDGMENT16/08/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 2161            1975 SCR  (1) 742  1974 SCC  (2) 559

ACT: Hindu Adoption and Maintenance Act, 1956 s. 11(vi)--Scope of -"with  intent to transfer the child from the family of  its birth to the family of its adoption"--Meaning.

HEADNOTE: The first respondent’s suit questioning the adoption of  the appellant  was  dismissed  by the trial  court.   The  first appellate court held that the ceremony of giving and  taking had  not  taken place and allowed the  appeal.   The  single judge of the High Court held that the giving and taking  had taken  place  and that there was intention to  transfer  the appellant  from  the  family of his birth  to  that  of  the adoptive  family  within the meaning of s. I  1(vi)  of  the Hindu  Adoption  and  Maintenance Act,  1956.   However,  in Letters Patent Appeal the Division Bench held that there was no  intention  to transfer the appellant  from  his  natural family to the family of adoptive father. Allowing the appeal, HELD  :  The single Judge was right in his  conclusion  that there  was evidence of intention to transfer  the  appellant from  his natural family to that of the adoptive father  and that  the  fact  that the adoptive father was  at  one  time governed by customary law or that the adoption was stated to have  been validly made in accordance with custom would  not go  to show that the intention at the time of  the  adoption was not to transplant the appellant from his natural  family to  that of the adoptive family, because customary law  also recognises  formal adoption resulting in change  of  family. The  Division  Bench failed to take into  consideration  the fact  that  the  very ceremony of giving and  taking  is  in itself  symbolic of transplanting the adopted  son from  the family of his birth to the adoptive family. [743 F-744A,H] (2)  The adoption deed refers to the adoptive father  taking the appellant into his lap from his parents and adopting him as  his son.  The adoptive father referred to the  appellant as   adopted  son  and  specifically  called  the   document "adoption deed".  The adoption deed is to be read as a whole and  so read there could be no doubt that what the  adoptive father intended was to make an adoption according to law and not  merely appoint an her according to custom.   After  the

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abolition  of the customary law of adoption, whether of  the formal  or informal kind, there is no room for any  argument about the validity of the adoption provided the  formalities prescribed  by  Jaw  were complied with.  The  words  in  s. 11(vi)  of the Act" with intent’ to transfer the child  from the  family of its birth to the family of its adoption"  are merely indicative of the result of actual giving and  taking by  the  parents or guardians concerned referred to  in  the earlier part of the clause.  Where an adoption ceremony  was gone  through  and the giving and taking  took  place  there cannot be any other intention.[745D-F, H-746A] In  the  instant  case there was a clear  finding  that  the intention  was to transfer the adopted son to  the  adoptive family.

JUDGMENT: CIVIL,  AppeLLATE  JURISDICTION : Civil Appeal No.  1888  of 1967. Appeal by Special Leave from the Judgment & Decree dated the 12th  April,  1967  of the Punjab & Haryana  High  Court  in L.P.A. No. 6 of 1963. Bishan  Narain,  S.  K. Mehta and K. R.  Nagaraja,  for  the Appellant. Hardayal  Hardy,  Harbans  singh  and  Gautam  Goswami   for Respondents Nos. 1(I) to 1(vi). 743 The Judgment  of the Court was delivered by ALAGIRISWAMI,  J. The appellant was adopted by Maghi  Singh, his  grand-father’s  brother.  Maghi Singh also  executed  a deed of adoption.  After his death another brother of  Maghi Singh, the 1st respondent, filed the suit, out of which this appeal arises, questioning the adoption and claiming a  half share in Maghi Singh’s property.  The suit was dismissed  by the Trial Court but the First Appellate Court held that  the ceremony  of  giving  and taking had  not  taken  place  and allowed the appeal.  In Second Appeal Justice Khanna of  the Punjab High Court, as the then was, held that the giving and taking bad taken place and rejected an argument that even if there was the act of giving and taking, it was not with  the intent  to  transfer the appellant from the  family  of  his birth  to  that  of  Maghi Singh  because  Maghi  Singh  was governed by customary law.  A Division Bench of the Punjab & Haryana High Court hearing the Letters Patent Appeal against this  judgment held that there was no evidence of  intention to  transfer the appellant from his natural family to  Maghi Singh’s  family and allowed the appeal.  This appeal  is  by special leave granted by this Court. In  the plaint it was alleged that there was no ceremony  of adoption  performed nor was the appellant treated  as  Maghi Singhs son.  It was also alleged that Maghi Singh was not in his  senses  when  he exeCuted the adoption  deed.   As  the learned  Single  Judge as well as the  Division  Bench  have concurrently  held that the ceremony of’ giving  and  taking did take place, it is unnecessary to go into that  questions The  deed  of adoption refer to the giving and  taking.   It also  says that this was done before the brotherhood of  the village,  that  Maghi  Singh  had adopted  him  as  his  son according  to  custom,  that  he  was  his  legal  heir  and representative, that he shall be owner and possessor of  his entire  property and that all the rites regarding his  death shall he performed by the adopted son.  Even in the  grounds of  appeal  before the District Judge only the  question  of ceremony of giving and taking was canvassed and no point was

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taken  that there was no intention to transfer  the  adopted son from the family of his birth to the adoptive family that point  seems  to have been taken for the first  time  before lie  learned  single Judge of the High Court.   We  consider that I the learned Single Judge was right in his  conclusion that  there.  was  evidence of  intention  to  transfer  the appellant from his natural family to that of Maghi Singh and that  the fact that Maghi Singh was at one time governed  by customary  law or that the adoption was stated to have  been validly made in accordance with custom would not go to  show that  the  intention  at the time of  adoption  was  not  to transplant  Kartar Singh from his natural family to that  of Maghi  Singh  because customary law also  recognises  formal adoption  resulting  in change of family.  It is not  as  if customary  law does not recognise such adoption.  In  Punjab before  the  Hindu Adoptions and maintenance Act  1956  came into force there was prevalent the customary adoption, which was  custom of appointing a heir, the heir so appointed  not ceasing  to   be member of the family of his birth  and  not becoming  a member of the family of the person who  appoints him as his heir.  There was also the more formal adoption 744 which was recognised under the Hindu law in which there  was giving  and taking and the adopted son becoming a member  of the  adoptive family.  The question whether the adopted  son become a member of the adoptive family used to arise in  the case  of  collateral succession.  An appointed  heir  cannot succeed  to the collaterals of the person who appointed  him as  his  heir  but  an adopted  son  would  succeed  to  the collaterals of the adoptive father.  In Abdhur Rehmani  Khan &  Ors  v. Ragbhir Singh & Anr (51 PLR 119)  the  custom  in Punjab is set out like this.               "  A  customary  adoption  in  the  Punjab  is               ordinarily no more than a mere appointment  of               an  heir, creating only personal  relationship               between the adopter and the adoptee.  By  such               adoption  the  adoptee  does  not  become  the               grandson  of  the  adopter’s  father  nor  the               adoptee’s  son  becomes the  grandson  of  the               adopter.               But some agricultural tribes in certain places               have  been found to be governed by  a  special               custom under which adoption does not amount to               mere appointment of an heir, but has  attached               to  it all the consequences which flew from  a               full and formal adoption of Hindu law.   Where               such a special custom Is found to exist it  is               not necessary for the adoption that it  should               have  taken place in the conformity  with  the               rules of Hindu law in the matter of ritual  or               otherwise, become in such cases it is not  the               rule  of  Hindu law which operates  to  attach               such  consequences to the adoption but  it  is               the  custom governing the adoption  that  does               so, and therefore in order to attract all such               consequences   it  is  quite  enough  if   the               adoption conforms to that custom in the matter               of form etc.               Such   an   adoption   effects   a    complete               transplantation of the adoptee from one family               to   the  other  and  confers  the  right   of               collateral  succession in the adoptive  family               and takes away the right of such succession in               the natural family.               In  the  case of such  adoption  the  property

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             devolving  on the adopted son continues to  be                             ancestral in his hands". It would be noticed that even according to the customary law of  Punjab  there was special custom Linder  which  adoption attached to it all the consequences which flow from full and formal adoption under Hindu law. The learned Judges of the Division Bench failed to take into consideration the fact that the very ceremony of giving  and taking  in itself symbolic of transplanting the adopted  son from  the  family of his birth to the adoptive  family.   In this  connection reference may be made to the ancient  texts on  adoption given in Mayne’s Hindu law (11th Edn)  at  page 226, according to which Manu says; "he whom his father  745 or mother (with her husband’s assent) gives to another, etc, is considered as a son given".  The Mitakshara says "He  who is given by his mother with her husband’s consent while  her husband  is absent or after her husbands decease or  who  is given by his father or by both being of the same class  with the  person  to whom he is given, becomes  his  given  son". Again  at page 237 it is said "The giving and the  receiving are  absolutely  necessary to the validity of  an  adoption. They are operative part of the ceremony, being that part  of it  which  transfers the boy from one family  into  another. But  the  Hindu  law does not require  there  shall  be  any particular  form  so  far  as  giving  and  acceptance   are concerned.   For a valid adoption all that the law  requires is  that the natural father shall be asked by  the  adoptive parent  to give his son in adoption, and that the boy  shall be handed over and taken for this purpose". After  the Hindu Adoptions and Maintenances Act,  1956  came into  force  there is no room for  any  customary  adoption. Section  4 of the Act specifically provides that  any  text, rule  or interpretation of Hindu law or any custom or  usage as  part  of  that  law  in  force  immediately  before  the commencement  of  that Act shall cease to have  effect  with respect  to any matter for which provision is made  in  that Act.   Therefore the question of any customary adoption,  as was in force in Punjab before that Act came into force, does not any longer arise. The whole error in the reasoning of the Division Bench  lies in  proceeding on the assumption that Maghi  Singh  intended merely  to  appoint an heir because he referred  to  custom. But  when  the  document refers to Maghi  Singh  taking  the appellant  into his lap from his parent and adopting him  as his  son, the words "according to custom" can only refer  to the  custom of adoption; so would the reference to  "custom" in two other places in the document.  Maghi Singh refers  to "adopted  son" in three places.  He specifically  calls  the document  "adoption deed".  The document is to be read as  a whole  and so reading there cannot be the least  doubt  that what Maghi Singh intended was to make an adoption  according to  law and not merely appoint an heir according  to  custom which  prevailed before 1956 but had been abolished  by  the Hindu Adoption and Maintenance Act, If  the  plaintiff had at least pleaded in  the  alternative that  even  though there might have been giving  and  taking there was no intention to transfer the adopted boy from  his natural  family to the adoptive family evidence  would  have been  directed to the point.  It was hardly proper  to  have allowed  the plaintiff to have raised this question  without having  laid any basis for it either in his pleadings or  in the  evidence.  The whole case has been given a twist  which it  does  not bear on the materials on  record.   After  the abolition  of the customary law of adoption, whether of  the

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formal  or  of the informal kind there is no  room  for  any argument  about  the validity of the adoption  provided  the formalities prescribed by law are complied with.  The  words in  s.  II Cl (vi) of the Act "with intent to  transfer  the child  from  the family of its birth to the  family  of  its adoption"  are  merely indicative of the  result  of  actual giving  and  taking by the parents  or  guardians  concerned referred to the earlier part of the clause 746 where  an adoption ceremony is gone through and  the  giving and taking takes place there cannot be any other  intention. The parties did not intend to go through a play acting or to put  up a show.  They obviously intended to comply with  the requirement  of law that for a valid adoption there must  be giving and taking. There  is  moreover  clear evidence in this  case  that  the intention  was to transfer the adopted son to  the  adoptive family.   Nasib  Chand  D.W.2,  said that  at  the  time  of adoption  Bachan  Singh and his wife were present  here  and they  said  the boy was his (Maghi Singh’s) and  that  Maghi Singh took the son.  Pritam Singh D.W.3, said that Maghi had taken  Kartar in his lap and Bachan Singh had asked  him  to take his son.  Kashmiri Lal D.W.4, said that Maghi had taken Kartar in his lap and Bachan Singh and his wife were present there  and  were  saying they had given their  son  to  him. Wasawa  Singh D.W.5, said that when Maghi asked for his  son Bachan  Singh said he had given his son to him in  adoption. Bachan Singh D.W.7, said that Maghi had taken his son Kartar Singh from him, that he was made to sit in the lap of Maghi, that his (D.W.7 s) wife was near him and he had obtained her consent.  There cannot be clearer evidence than this. The judgment of the Division Bench is set aside and that  of the learned Single Judge restored.  The respondents will pay the appellant costs throughout. P. B. R.                                         Appeal Allowed. 747