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PETITIONER: HEM SINGH AND ANOTHER

       Vs.

RESPONDENT: HARNAM SINGH AND ANOTHER.

DATE OF JUDGMENT: 01/04/1954

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM MUKHERJEA, B.K. BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  581            1955 SCR   44

ACT:     Custom-Adoption-Gill   Tats   of   village   Gillanwali, District Gurdaspur (Punjab)-Adoption of a collateral of  8th degree-Validity of.

HEADNOTE:     Held, that under the Customary Law of Gurdaspur District (Punjab) applicable to the Gill Jats of village  Gillanwali, the  adoption  of  a collateral of the  8th  decree  is  not invalid. The  answer to question 9 in Customary Law of the  Gurdaspur District that "the adoption of near collateral only"  should be recognised is not mandatory but directory.  Under the Customary Law in the Punjab, adoption is  secular in  character, the object being to appoint an heir  and  the rules relating to ceremonies and to preferences in selection have  to  be  held to be directory  and  adoptions  made  in disregard of them are not invalid. Jiwan  Singh and Another v. Pal Singh and Another  (22  P.R. 1913 at p. 84); Sant Singh v. Mula and Others (44 P.R.  1913 at  p. 173); Charan Singh v. Butta Singh and Others  (A.I.R. 1935  Lah.  83); Jowala v. Dewan Singh (166 I.C.  237);  and Basant  Singh and Others v. Brij Raj Saran Singh (I.L.R.  57 All. 494) referred to:

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 124 of 1951. Appeal  by Special Leave granted by His Majesty in  Council, dated the 30th October, 1945, from the Judgment and  Decree, dated  the 12th July, 1944, of the High Court of  Judicature at  Lahore in Civil Regular Second Appeal No. 450  of  1942, against  the  Judgment and Decree, dated the  14th  January, 1942,  of  the Court of the District  Judge,  Gurdaspur,  in Appeal No. 91 of 1941, arising from the Judgment and Decree, dated  31st July, 1941, of the Court of  Senior  Subordinate Judge, Gurdaspur, in Suit No. 80 of 1940. G.   S. Vohra and Harbans Singh for the appellants. Achhru Ram (J. B.  Dadachanji and R. N. Sachthey, with  him)

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for respondents. 45 1954.  April 1. The Judgment of the Court was delivered by GHULAM  HASAN J.-This is an appeal by special leave  granted by  the Privy Council against the judgment and decree  dated July  12,  1944, of a Division Bench of the  High  Court  at Lahore  passed in second appeal confirming the dismissal  of the  appellants’ suit cone currently by the trial Court  and the Court of the District Judge, Gurdaspur. The  two appellants are admittedly the first cousins of  the respondent, Harnam Singh, and belong to village  Gillanwali, Tahsil Batala, District Gurdaspur.  Gurmej Singh, respondent No.  2, is a collateral of Harnam Singh in the  8th  degree. The  appellants  sued  for a declaration that  the  deed  of adoption executed by Harnam Singh on July 30, 1940, adopting Gurmej   Singh  was  invalid  and  could  not   affect   the reversionary  rights  of the appellants after the  death  of Harnam  Singh.   The  appellant’s case was  that  under  the Customary  Law of Gurdaspur District applicable to the  Gill Jats ,of village Gillanwali, Harnam Singh could only adopt a is  near  collateral"  and  Gurmej  Singh  being  a  distant collateral  his  adoption was invalid.  The  defence  was  a denial  of the plaintiffs’ claim.  Both the trial Judge  and the  District Judge on appeal held that the factum  and  the validity of the adoption were fully established.  In  second appeal Trevor Harries C. J. and Mahajan J. (as he then  was) held  that  there was sufficient evidence of the  factum  of adoption as furnished by the deed and the subsequent conduct of  Harnam  Singh.  They held that all  that  was  necessary under   the  custom  to  constitute  an  adoption  was   the expression of a clear intention on the part of the  adoptive father  to  adopt  the boy concerned as  his  son  and  this intention  was clearly manifested here by the execution  and registration of the deed of adoption coupled with the public declarations  and treatment as adopted son.  Upon the  legal validity  of  the  adoption the High Court  found  that  the answer to Question 9 of the Riwaj-i-am of Gurdaspur District of  the  year 1913 laying down that the  adoption  of  "near collaterals  only " was recognised was not  mandatory.   The High Court relied in support of their 46 conclusion on a decision of Tek Chand J. in Jowala v.  Diwan Singh (1) and the Privy Council decision in Basant Singh  v. Brij Raj Saran Singh (2). The first question regarding the factum of adoption need not detain us long.  The deed of adoption, Exhibit D. 1, recites that  Harnam Singh had no male issue who could  perform  his kiry a karam ceremony after his death, that Gurmej Singh had been brought up while he was an infant by his wife and  that he had adopted him according to the prevailing custom.   The recital  continues  that  since the  adoption  he  had  been treating and calling Gurmej Singh as his adopted son.   This fact was well,-known in the village and the adoptee was  en- joying  all  rights  of a son.  He  had  executed  a  formal document in his favour in order to put an end to any dispute which might be raised about his adoption.  As adopted son he made him the owner of all of his property.  We are satisfied that  there is ample evidence to sustain the finding on  the factum of adoption. The  main question which falls to be considered  is  whether under the terms of the Riwaj-i-am applicable to the parties, Gurmej  Singh being a collateral of Harnam Singh in the  8th degree could be validly adopted.  The custom in question  is founded  on Question 9 and its answer    the  Customary  Law of the Gurdaspur District.  They are as follows:-

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  "  Question 9. Is there any rule by which it is  required that  the  person adopted should be related  to  the  person adopting  ?  If so, what relatives may be adopted ?  Is  any preference required to be shown to particular relatives ? If so, enumerate them in order of preference.  Is it  necessary that  the adopted son and his adoptive father should be  (1) of the same caste or -tribe; (2) of the same got? Answer  : The only tribes that recognised the adoption of  a daughter’s  son are the Sayyads of the - Shakargarh and  the Arains of the Gurdaspur Tahsil.  The Brahmans of the  Batals Tahasil   state   that  only  such  of  them  as   are   not agriculturists  by occupation recognize such adoption.   The Muhamadan Jats of the (1) 166 I.C. 237. (2) I.L.R. 57 All- 494. 47 Gurdaspur.   Tahsil could not come to an agreement  on  this point.   The remaining tribes recognise the adoption of  War collaterals  only.  The right of selection  rests  with  the person adopting.  The Khatris, Brahmans and Bedis and  Sodis of  the  Gurdaspur Tahsil, however, state that  the  nearest collaterals cannot be sperseded and selection should  always be made from among them" It  is  contended for the appellants that the  expression  " near  collaterals  only  "  must  be  construed  to  mean  a collateral  up  to the third degree and does not  cover  the case  of  a  remote  collateral  in  the  8th  degree.   The restriction  as  regards the degree of relationship  of  the adoptee,  it is urged, is mandatory and cannot  be  ignored. The  expression " near collaterals " is not defined  by  the custom.  The relevant answer which we have underlined  above gives no indication as to the precise import of the words  " near collaterals." The custom recorded in the Riwaj-i-am  is in  derogation  of the general custom and those who  set  up such  a  custom  must  prove it  by  clear  and  unequivocal language.   The language is on the face of it ambiguous  and we can see no warrant for limiting the expression to signify collateral  relationship only up to a certain degree and  no further.   We  are also of opinion that  the  language  used amounts to no more than an expression of a wish on the  part of  the narrators of the custom and is not mandator. If  the intention  was to give it a mandatory force, the  Riwaj-i-am would  have  avoided the use of ambiguous  words  which  are susceptible of a conflicting interpretation.  The  provision that  the right of selection rests with the person  adopting also  detracts from the mandatory nature of  the  limitation imposed  upon  the  degree  of  relationship.   Though   the adoption  of what the custom describes as "near  collaterals only" was recognized by the community of Jats, the right  of selection was left to the discretion of the adopter.   There is no meaning in conferring a discretion upon the adopter if he  is  not allowed to exercise the right  of  selection  as between  collaterals inter se.  We are unable to  read  into the  answer a restriction upon the choice of the adopter  of any particular collateral however near in degree he may be, 48 In  his valuable work entitled "Digest of Customary  Law  in the Punjab" Sir W.H. Rattigan states in paragraph 35 that "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  in  paragraph  36  that  "there  is  no restriction as regards the age or the degree of relationship of  the person to be appointed".  It appears to us that  the basic idea underlying a customary adoption prevalent in  the Punjab  is the appointment of an heir to the adopter with  a

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view  to  associate  him in his  agricultural  pursuits  and family affairs.  The object is to confer a personal  benefit upon  a kinsman from the secular point of view  ’unlike  the adoption under the Hindu Law where the primary consideration in the mind of the adopter if a male is to -derive spiritual benefit  and  if a female, to confer such benefit  upon  her husband.  That is why no emphasis is laid on any  ceremonies and  great latitude is allowed to the adopter in the  matter of selection. Mulla in his well-known work on Hindu Law says: "It  has similarly been held that the texts  which  prohibit the  adoption  of an only son, and those  which  enjoin  the adoption of a relation in preference to a stranger, are only directory;  therefore,  the adoption of an only  son,  or  a stranger  in preference to a relation, if completed, is  not invalid.   In cases such as the above, where the  texts  are merely directory, the principle of factum valet applies, and the act done is valid and binding." (Page 541). We see no reason why a declaration in a Riwaj-i-am should be treated differently and the text of the answer should not be taken  to  be  directory.  However  peremptory  may  be  the language  used in the answers given by the narrators of  the custom, the dominant intention underlying their declarations which  is  to confer a temporal benefit upon  one’s  kinsmen -should not be lost sight of. A number of cases have been cited before us to show that  in recording  the  custom the language used was  of  peremptory nature and yet the Courts have held that 49 the  declarations were merely directory  and  non-compliance with those declarations did not invalidate the custom. In Jiwan Singh and Another v. Pal Singh and Another(1)  Shah Din and Beadon JJ. held "that by custom among Randhawa  Jats of  Mauza  Bhangali,  Tahsil Amritsar, the  adoption,  by  a registered deed, of a collateral in the 9th degree who is of 16  years  of  age  is  valid  in  the  presence  of  nearer collaterals."  The  adoption was objected to on  the  ground that the adoptee was a remote collateral and that he was not under  the  age  of twelve at the time of  the  adoption  as required  by the Riwaj-i-am.  The learned Judges  held  that the provision as regards the age was recommendatory and  not of a mandatory character. In Sant Singh v. Mula and Others ) Robertson and Beadon  Jj. held "that among Jats and kindred tribes in the Punjab,  the general, though not ’the universal, custom is that a man may appoint an heir from amongst the descendants of his ancestor and  that  he  need  not  necessarily  appoint  the  nearest collateral." This was a case where a distant collateral  was preferred  to  a  nearer  collateral.   The  learned  Judges expressed  the opinion that the clause which points  to  the advisability  of adopting from amongst near collaterals  was nothing more than-advisory. In  Chanan’ Singh v. Buta Singh and Others(3), a  case  from Jullundur District, the question and answer were as  follows :- "Q.  No. 71: Are any formalities necessary to  constitute  a valid  adoption,  if  so, describe  them.   State  expressly whether  the  omission  of  any  customary  ceremonies  will vitiate the adoption ? A.........  The  essence  of adoption is that  the  fact  of adoption  be  declared  before  the  brotherhood  or   other residents  of the village.  The usual practice is  that  the Baradari gathers together and the adopter declares in  their presence  the fact of the adoption.  Sweets are  distributed and a deed of adoption is also drawn up.  If

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(1)  22 P.R. 1913.  P. 84. (2)  44 P.R. 913.  P. 73. (3) A.I.R. 1935 Lah. 83. 7 50 these  formalities  are  not observed the  adoption  is  not considered valid." The adoption was challenged on the ground that there was  no gathering  of the brotherhood.  The learned Judges  (Addison and  Beckett JJ.) held that it was immaterial whether  there was  or was not a gathering of the brotherhood at the  time. It  appears that the adopter had made a statement  in  Court acknowledging the appointment or adoption in question.   The next  day he celebrated the marriage of the boy as his  son, and thereafter he looked after his education and allowed him to  describe himself as his adopted son or  appointed  heir, and  the boy lived with him as his son.  The learned  Judges held  that the details given in the answers to questions  in various  Customary Laws were not necessarily  mandatory  but might be merely indicatory. In  Jowala  v.  Dewan Singh(1) Tek Chand J.  held  "that  an adoption of a collateral in the fourth degree, among Jats of Mauza  Hussanpur,  Tahsil Nakodar,  District  Jullundur,  is valid  although nearer collaterals are alive." He also  held "that  an entry in the Riwaj-i-am as to the persons who  can be adopted is merely indicatory". In a case from Delhi reported in Basant Singh and Others  v. Brij  Raj  Saran Singh(2)the Privy Council  held  "that  the restriction in the Riwaj-i-am of adoption to persons of  the same  gotra  is recommendatory and a person of  a  different gotra may be adopted." Counsel  for the appellants frankly conceded that  he  could cite  no  case where the  declarations  governing  customary adoptions were held to be mandatory. Whether  a  particular rule recorded in  the  Riwaj-i-am  is mandatory or directory must depend on what is the  essential characteristic of the custom.  Under the Hindu Law  adoption is  primarily a religious act intended to  confer  spiritual benefit  on  the  adopter  and  some  of  the  rules   have, therefore,  been  held to be mandatory and  compliance  with them  regarded  as  a  condition  of  the  validity  of  the adoption.  On the other hand, under the (1) 166 I.C. 237. (2) 57 All, 494. 51 Customary  Law  in  the  Punjab,  adoption  is  secular   in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection  have to  be held to be directory and adoptions made in  disregard of them are not invalid. There  is no substance in the appeal and we dismiss it  with costs.                                     Appeal dismissed.