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PETITIONER: INDER SINGH

       Vs.

RESPONDENT: GURDIAL SINGH

DATE OF JUDGMENT: 10/04/1961

BENCH: DAS, S.K. BENCH: DAS, S.K. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1967 AIR  119            1962 SCR  (1) 845

ACT: Adoption--Custom--Jats of Ludhiana--If general treatment  as son essential.

HEADNOTE: N,  a Jat of Ludhiana district, was the last male holder  of the  property in dispute.  He adopted the  appellant  before the  village  panchayat by distributing gur and  executed  a deed of adoption in his favour.  For a short period N  lived with the appellant.  A few weeks later N left the appellant, cancelled  the  deed  of adoption  within  five  months  and repudiated any association with the appellant as his son.  N died   three  years  later.   The  appellant   claimed   the properties of N contending that he had been validly  adopted by  N and that the adoption once validly made could  not  be revoked. Held,  that the appellant was not validly adopted by N.  The formalities  necessary for customary adoption in  accordance with  the rules prevalent amongst jats of Ludhiana  district are:  (i)  a  declaration  of  adoption  and  (ii)   general treatment   of  the  appointed  heir  as  a  son.   A   mere declaration  or  even the execution of a  deed  of  adoption unaccompanied by precedent or subsequent treatment as son is insufficient.  In this present case the second formality was lacking  There was no evidence that N treated the  appellant as his son; on the contrary there was evidence to show  that he repudiated the declaration that lie had made   earlier. Gurbachna  v. Bujha, (1911) 46 Punj.  Record 151, Baj  Singh v.   Pratap  Singh,  (1923) 77 I. C. 473,  Chhajju  v.  Mehr Singh,  (1930)  31 P.L.R. 997, Chanan Singh v.  Buta  Singh, A.I.R.  1935 Lah. 83 and Kishen Singh v. Taru,  A.I.R.  1949 East Punjab 342, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION,., Civil Appeal  No.  141  of 1956. Appeal from the judgment and decree dated September 2, 1954, of  the  Punjab High Court at Chandigarh  in  Civil  Regular Second Appeal No. 337 of 1952.

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Achhru Ram, R. Ganapathy Iyer and G. Gopalakrishnan, for the Appellant. S. P. Sinha and V. N. Sethi, for the respondents. 1961.  April 10.  The Judgment-of the Court was delivered by 846 S. K. DAS, J.-This is an appeal on a certificate granted  by the  High  Court  of  Punjab on March  7,  1955.   The  only question which falls for decision is   whether Inder  Singh, plaintiff  in  the  court of first  instance  and  appellant herein, was validly adopted by one Nathu in accordance  with the  rules of customary adoption prevalent amongst  Jats  of the Ludhiana district in the State of Punjab. The  relevant facts are these.  Nathu, the last male  holder of the property in dispute, was a Jat of Ludhiana, district. He  was  blind,  not married and had no  issue.   He  was  a resident,  of village Mohanpur.  Inder Singh, a resident  of the  same village, was his nephew by collateral relation  of the  fifth  degree.  Inder Singh’s case was that  he  looked after Nathu since his childhood and on March 24, 1946, Nathu adopted him, according to the custom prevalent amongst them, before the village Panchayat by distributing "gur" (jaggery) and on the next day, that is, March 25, 1946, Nathu executed a  deed of adoption in his favour and got it  registered  on the  same day.  For a, short period thereafter  Nathu  lived with Inder Singh.  Then Gujar Singh, defendant in the suit-, who was a nearer collateral of Nathu, gained influence  over the,  latter.   Nathu left lnder Singh and on  September  6, 1946,  cancelled the deed of gift.  Nathu died  three  years after, that is on October 27, 1949.  On Nathu’s death  Gujar Singh  got the property of Nathu mutated in his name in  the revenue  records.  Inder Singh then brought the suit out  of which this appeal has arisen for possession of the  property of  Nathu Singh, which consisted of about 16 bighas  odd  of land  and  a house, on the footing that he was  the  adopted soil  of Nathu.  The suit was contested by Gujar  Singh  who alleged inter alia that Inder Singh was not validly  adopted by Nathu in accordance with the custom prevalent amongst the Jats of Ludhiana. The trial Judge held that the story of the alleged  adoption before  the village Panchayat was not substantiated and  the recitals in the deed of adoption were incorrect.  He further found that according to 847 the  customary rules of adoption the deed of adoption  could not  have any effect unless after its execution there was  a continuous  course  of conduct showing  that  Nathu  treated Inder  Singh  as  his  son; and inasmuch  as  there  was  no evidence to show such association, Inder Singh had failed to make  out his case.  The suit was,  accordingly,  dismissed. Inder Singh then preferred an appeal. which was heard by the District Judge of Ludhiana.  On a consideration of the  evi- dence  the  learned District, Judge came to  the  conclusion that  it established that Nathu did declare Inder  Singh  as his heir before the village Panchayat on or about March  24, 1946, and that Nathu lived with Inder Singh for a very short period  thereafter.   This, in the opinion  of  the  learned District Judge, was sufficient to establish a valid adoption according to the customary rules and no further evidence, of association as father and son between the two was necessary. In this view of the matter, the learned District Judge  held that  the cancellation of the deed of adoption by  Nathu  on September  6,  1946, was of no effect, because  an  adoption once  validly  made could not be revoked.   Accordingly,  he allowed the appeal. Gujar Singh died sometime after the appellate decision,  and

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the  present respondents as heirs and legal  representatives of  Gujar Singh carried a second appeal to the  Punjab  High Court.   The learned Judges of the High Court held that  the rules  of customary adoption prevalent amongst  the  parties required two essential elements: (a) an intention to appoint an  heir  and (b) an act of association between the  two  as father  and son.  They hold that the short period  of  about six weeks during which Nathu lived with the appellant  after the execution of the deed of adoption was not sufficient  to prove  that  Nathu treated Inder Singh as his  future  heir; there was, therefore, no such association as would make, the adoption   valid   according   to   the   customary    rules prevalent’amongst  the Jats of Ludhiana district.   On  this view the High Court set aside the judgment and decree of the learned  District Judge and restored those of the  court  of first instance. 848 The  judgment being a judgment of reversal and the value  of the property in dispute more than Rs. 20,000 the High  Court gave  a certificate under Art. 133 of the Constitution  read with  ss.  109 and 110 of the Code of Civil  Procedure.   On that certificate the present appeal has come to us. The finding of the Learned District Judge that the  evidence on record established that Nathu declared Inder Singh as his heir  before  the village Panchayat on or  about  March  26, 1946,  is  clearly a finding of fact and binding  in  second appeal.  The correctness or otherwise of that finding cannot now be canvassed.  The controversy in the High Court as also before us centered round the question whether under the cus- tomary  rules  of  adoption prevalent amongst  the  Jats  of Ludhiana, a second element for a valid adoption, namely,  an act  of association or a general treatment of the  appointed heir as a son is essential. Mr.  Achhru  Ram appearing on behalf of  the  appellant  has contended  that the view expressed by the  learned  District Judge  is  the  correct view.  He has  referred  us  to  the general statement of the customary rule in the matter of the appointment  of  an  heir  in  paragraph  35  at  p.  50  of Rattigan’s Digest of Customary Law (seventh edition).   That paragraph, with Explanation 1, reads as follows:               "35.   A  sonless  propietor of  land  in  the               central  and eastern parts of the  Punjab  may               appoint  one of his kinsmen to succeed him  as               his heir.               Explanation  1.  Such an  appointment  may  be               manifested, in the absence of any special cus-               tom  prescribing a different mode, in  any  of               the   following   ways   By   (a)   a   formal               declaration,  before the brother-hood,  (b)  a               written   declaration,  either   preceded   or               followed  by some treatment consistent with  a               deliberate  appointment, or (c) a long  course               of   treatment   evidencing   an   unequivocal               intention  to appoint the specified person  as               heir." The  argument  of  learned Counsel  is  that  according.  to general  rule  stated above, the appointment of an  heir  by adoption may be manifested in one of the following ways: (a) by a formal declaration, before the 849 brotherhood,  (b) by a written declaration, either  preceded or  followed by some treatment consistent with a  deliberate appointment or (c) a long course of treatment evidencing  an unequivocal  intention  to appoint the specified  person  as heir.  Learned Counsel contends that in view of the  finding

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of  the learned District Judge that a formal declaration  of the adoption was made by Nathu before the village Panchayat, there was a sufficient manifestation of the appointment.  He has submitted that a somewhat different rule embodied in the thirteenth edition of Rattigan’s Digest as revised by 0.  P. Aggarwala  is  not  a  correct statement  of  the  law;  the statement  there  being  that the  two  elements  which  are essential  to constitute the factum of adoption are  (i)  an intention to appoint an heir and (ii) an act of  association (see  p. 497).  We consider that it is unnecessary  in  this case to examine the more general question of the exact scope and  ambit of the rule in other parts of the Punjab; for  we have unimpeachable evidence of the scope of the rule in  the district of Ludhiana.  In the Customary Law of the  Ludhiana District  (rewaj-i-am),  compiled  and  attested  by  J.  M. Dunnett,  Settlement Officer, the formalities  of  customary adoption amongst Jats of the Ludhiana district are stated in the form of the following question and answer (see p. 102):               "Question 68.  What formalities are  necessary               for adoption?               Answer-As   adoption   is  not   a   religious               ceremony,    no   special   formalities    are               considered  necessary.   The  adopter  usually               calls   the  neighbours  and   his   relations               together, and distributes gur, saying that  he               has adopted (god lia) so and so.  Sometimes  a               deed   of   adoption  is  executed.    But   a               declaration of adoption and general  treatment               as a son are looked upon as sufficient."               The compiler then observes:               "  Case-law  agrees.  It  is  well-established               principle  that  customary  adoption  requires               absolutely no formalities................. The               evidence  required to establish the factum  of               adoption is merely evidence            107 850               of  intention clearly expressed and  treatment               shown.               In  79, Punjab Record of 1882 (Jats  of  Mauza               Baga Kalan tahsil Samrala) the execution of  a               deed and general conduct were held sufficient,               but in 94, Punjab Record, 1893, among Dhaliwal               Jats,   the   mere   execution   of   a   deed               unaccompanied   by  precedent  or   subsequent               treatment was held insufficient." Mr.  Achhru Ram has very fairly conceded that the  statement of customary law of the Ludhiana district in the  rewaj-i-am is  authoritative, though the many details mentioned in  the answers  given are not necessarily mandatory.  It is  clear, however,  that so far as the Jats of Ludhiana  district  are concerned,  the  formalities  necessary  for  adoption  are, firstly,  a declaration of adoption and,  secondly,  general treatment   of  the  appointed  heir  as  a  son.   A   mere declaration  or  even the execution of a  deed  of  adoption unaccompanied  by  precedent  or  subsequent  treatment   is insufficient.   That being the position, the High Court  was clearly right in its decision. The same position is established by the authorities  bearing on  the  subject.   The  earliest  decision  to  which   our attention has been drawn is Gurbachna v. Bujha(1).  In ’that case  it  was  stated  that where  the  power  of  customary adoption by a sonless proprietor was not disputed, all  that was  necessary  to  constitute an  adoption  was  the  clear

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expression  of  an  intention on the part  of  the  adoptive father  to  adopt  the  boy  concerned  as  his  son  and  a sufficient manifestation of that intention by the  execution and registration of a deed of adoption coupled with a  clear declaration  in  court and subsequent treatment  as  adopted son.  It was pointed out, however, that in a case where soon after the execution of the deed of adoption the reversioners of  the adoptive father brought a suit, it was  not  reason. able  to demand proof of subsequent treatment.  In the  case before us, Nathu died three years after the execution of the deed.   He left Inder Singh a few weeks after the  execution of the deed, cancelled the deed within about five months and instead of treating (1) (1911) 46 Punjab Record 151. 851 Inder Singh as his son repudiated any such association  with him.   In  these circumstances the High Court  rightly  hold that there was no sufficient manifestation of the  intention to  adopt Inder Singh as his son by Nathu.  In Baj Singh  v. Partap Singh (1) it was observed:               "There is ample authority for holding that the               appointment in order to be valid must be  made               in  some unequivocal and customary manner  and               the  execution of a deed coupled with a  long.               course of treatment has always been recognised               as  one of the modes of manifestating such  an               appointment." In  Chhajju  v.  Mehr  Singh (2)  it  was  held  ’that   the execution  of a deed by the adoptive father was  not  enough and continuous subsequent treatment not having been  proved, the  adoption was not established.  In Chanan Singh v.  Buta Singh (3) the decision proceeded on the customary law of the district of Jullundur and on that basis it was held that the appointment  should  be manifested by  some  declaration  or course  of treatment evidencing an unequivocal intention  to appoint a specified person as heir; it was pointed out  that the question and answer recorded in the rewaj-i-am concerned showed  that the essence of the customary rule was  that  it should  be clearly declared.  Their Lordships  were  dealing with  a  case  in  which  there  was  not  merely  a  public declaration  in court but also subsequent treatment  of  the appointed  heir as a son by the adoptive father.  In  Kishan Singh  v.  Taru  (4)  it was  observed  that  all  that  was necessary to constitute an adoption under customary law  was the  clear expression of intention on the adoptive  father’s part  to adopt the boy concerned as his son, and the  execu- tion   of  the  deed  of  adoption  coupled  with  a   clear declaration  before  a registering  officer  and  continuous subsequent   treatment  as  adopted  son   were   sufficient manifestation of the intention. We are of the view that the High Court rightly held that  in the circumstances of this case the declaration made by Nathu before the village Panchayat (1) (1923) 77 I.C. 473.   (2) (1930) 31 P.L.R. 997. (3) A.I.R. 1935 Lah. 83.  (4) A.I.R. 1949 East Punjab 342. 852 on  March 24, 1946, and the execution of a deed of  adoption which he cancelled within a short time were not a sufficient manifestation of the intention of Nathu to adopt Inder Singh as his son.  There was no evidence that Nathu Singh treated, Inder Singh as his son; on the contrary, there was  evidence to  show  that  he repudiated the declaration  that  he  had earlier made. For  the reasons give above, we see no merit in  the  appeal which is, accordingly, dismissed with costs.

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                               Appeal dismissed.