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PETITIONER: KEHAR SINGH & ORS.

       Vs.

RESPONDENT: DEWAN SINGH & ORS.

DATE OF JUDGMENT: 21/01/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1966 AIR 1555            1966 SCR  (3) 393

ACT: Custom--Jats   of  Amritsar   District--Adoption--Difference between adoption as heir and formal adoption-Test of  formal adoption--Severence  of  ties with natural  family-Right  of person  adopted to the property of collaterals  of  adopting family.

HEADNOTE: The  revenue  authorities sanctioned mutation of  the  lands left  by  S,  an Aulakh Jat of  Tehsil  Ajnala  in  Amritsar District of the Punjab, in favour of the appellants who were collaterals  of S in the 8th degree.  A suit for  possession of the said lands was filed against them by the  respondents who claimed the lands as descendants of K. According to them K was the daughter’s son of M, a collateral of S in the  5th degree, and had been formally adopted by M as his son.   The trial  court  held  that the adoption of  K  was  the  usual customary  appointment of an heir and that by the custom  of Jats in Amritsar District an appointed heir was entitled  to succeed  collaterally in the family of his  adoptive  father and consequently K was the preferential heir to S. The first appellate  court  agreed  with  the  trial  court  that  the adoption of K was the customary appointment of an heir,  but rejected  K’s  claim  to be  preferential  heir  on  various grounds.   The High Court in second appeal held  that  under the customary law K, as the adopted son of M was entitled to succeed  collaterally  in his adoptive father’s  family;  on this  view  it  restored  the  trial  Court’s  decree.   The appellants came to this Court on certificate. HELD:     (i)  There  is a presumption that the  entries  in Riwaj-i-am  are correct and if there is a  conflict  between Rattigan’s digest and the Riwaj-iam, normally the Riwaj-i-am of the locality prevails. (ii) Under  the  customary  law  of  the  Jats  in  Amritsar District  when  the  customary adoption is  formal  and  the adopted son is completely transplanted in the-family of  his adoptive   father,’  he  is  entitled  to  succeed  to   the collateral  relatives of the adoptive father.  This  finding is in harmony with the Riwaj-i-am of the Amritsar  District, is  supported by judicial decisions, and is not in  conflict with  Art. 49 of Rattigan’s Digest.  On, the other  hand  if

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the  customary adoption amounts to a mere appointment of  an heir,  the appointed heir is not entitled to succeed to  the collateral’ relatives of the adoptive father.  This  finding is in harmony with Art. 49 of the Rattigan’s Digest and  the judicial  decisions, and is consistent with  the  Riwaj-i-am properly interpreted in the light of the decided cases. [398  C, D] (iii)     It is a  question of fact in each case whether the adoption  by  a Jat in the Amritsar District  is  formal  or informal.  The adoption is formal if the parties manifest  a clear  intention that there should be a complete  change  of the  family  of the adopted son, so that he ceases to  be  a member  of  his  natural  family  and  lose  his  right   of collateral  succession  in the family and at the  same  time becomes  a  member  of  the  adoptive  father’s  family  and acquires  a  right of collateral succession in  the  family. The  Iosses  of the right of collateral  succession  in  the natural family is strong evidence to show that the  adoption is formal and effects a complete change. 394 in the family.  On the other hand ’retention of the right of collateral  succession in his natural family indicates  that the adoption was informal by way of customary appointment of an heir. [398 E-G] (iv) In  the  present  case the courts had  found,  and  the finding  was  -amply supported by materials on  the  record, that  the adoption of K was no more than a mere  appointment of  an  heir by the custom of the Jats in  the  District  of Amritsar.   The  onus  to show otherwise  was  on  the  res- pondents.   The fact that K succeeded to the lands  left  by his  natural  brother and by one of the collaterals  of  his natural family strongly indicated that the adoption of M did not effect a change in his family.  K’s adoption not being a formal one, he could not be a preferential heir to S.   [398 H; 399 D] Case law referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 429 of1963. Appeal from the judgment and decree dated October 6, 1958 of the Punjab High Court in Civil Regular Second Appeal No.340  of 1953. Gopal Singh, for the appellants and respondent No. 11. N. N. Keswani, for respondent No. 1. The Judgment of the Court was delivered by Bachawat, J. : The parties are Aulakh Jats of Tehsil Ajnala in  Amritsar District, and are governed by customary law  in matters  of succession and adoption.  The  dispute  concerns succession  to  the property of one Santa  Singh  alias  Din Mohammad.  Santa Singh has not been heard of for a long time and  is  presumed  to  be  dead.   The  revenue  authorities sanctioned  mutation of the lands left by him in  favour  of the  defendants, who are his collaterals of the 8th  degree. one Megh Singh was the collateral of Santa Singh in the  5th degree.  Megh Singh died more than 50 years ago.  Before his death, he adopted his daughter’s son, one Kala Singh.   Kala Singh has died leaving his sons, Dewan Singh and Gian  Singh as his heirs.  Dewan Singh and Gian Singh instituted a  suit in the ,Court of the Subordinate Judge, First Class,  Ajnala praying  for  a decree for possession of the lands  left  by Santa Singh and alleging that Megh Singh adopted Kala  Singh as his son, took him out of his natural family, transplanted him  completely in the family of Megh Singh and bestowed  on him the rights of a natural son, according to the custom  by

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which the parties were governed, Kala Singh was entitled  to succeed as a reversionary heir in the family of his adoptive father  and was the preferential heir of Santa  Singh.   The contesting  defendants  alleged that the  adoption  of  Kala Singh  amounted to the appointment of an heir only and  they denied   that  according  to  custom  Kala  Singh  was   the reversionary heir of Santa Singh or entitled to inherit  his lands.                             395 The Subordinate Judge, Ajnala and the District Judge, Amrit- sar  concurrently held that the adoption of Kala  Singh  was the usual customary appointment of an heir.  The trial Court also held that by the custom of Jats in Amritsar District an appointed  heir was entitled to succeed collaterally in  the family  of his adoptive father and consequently, Kala  Singh was  the preferential heir of Santa, Singh.  On appeal,  the District Judge, Amritsar set aside the decree passed by  the trial Court, and dismissed the suit.  He held that according to  custom,  the  adoption  of  a  daughter’s  son  was  not permissible  and the adoption of Kala Singh was,  therefore, invalid.   He  also  held that under the  customary  law  an adopted  son could not succeed collaterally in his  adoptive father’s family if he was a non-agnate, i.e., if he did  not belong to the Got of his adoptive father.  On second appeal, the  High Court set aside the order of the  District  Judge, Amritsar, and restored the decree passed by the trial Court. The High Court, held that it was not open to the  defendants to challenge the validity of the adoption of Kala Singh,  as the  point was not in issue between the parties,  and  under the  customary law, Kala Singh, as the adopted son  of  Megh Singh, was entitled to succeed collaterally in his  adoptive father’s family.  Some of the defendants now appeal to  this Court on a certificate granted by the High Court. In agreement with the High Court we hold that it is not open to the defendants to contend that the adoption of Kala Singh by  Megh Singh was invalid.  In the written  statement,  the defendants  did not allege that Megh Singh had no  power  to adopt  Kala Singh, as Kala Singh was the daughter’s  son  of Megh  Singh.   As the validity of the adoption  was  not  in issue,  the parties had no opportunity to lead any  evidence on  the  question  whether by the  special;  custom  of  the parties Megh Singh could lawfully adopt his daughter’s son. The substantial point in controversy between the parties  is whether  by  the  custom  governing  the  Jats  of  Amritsar District, Kala Singh was entitled to succeed collaterally in the family of his adoptive father.  Some general customs  as to  adoption are found to exist in the Punjab, and they  are collected  in Rattigan’s Digest of Customary Law.   Some  of the customs observed in the several Districts and Tehsils of the  Punjab  are collected in the Riwaj-i-am.   There  is  a presumption that the entries in the Riwaj-i-am are  correct, and if there is a conflict between Rattigan’s Digest and the Riwaj-i-am,   normally  the  Riwaj-i-am  of   the   locality prevails,  see  Jai  Kaur v. Sher Singh (1),  Salig  Ram  V. Munshi   Ram  (2).   Judicial  decisions  furnish   reliable instances in which the custom in question was recognised  or departed  from.  Oral and documentary evidence of  mutations and other transactions in which the custom was (1)  [1960] 3 S.C.R. 979,               (2) [1962] 1  S.C.R. 470, 474-475. 396 recognised  or departed from are also relevant  material  to prove or disprove the custom. A  customary  adoption in the Punjab is ordinarily  no  more than  a  mere  appointment of an heir  creating  a  personal

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relationship  between the adoptive father and the  appointed heir only, see Mela Singh v. Gurdas (1).  There is no tie of kinship  between the appointed heir and the  collaterals  of the  adoptive father.  The appointed heir does  not  acquire the  right to succeed collaterally in the adoptive  father’s family.  The status of the appointed heir is thus materially different from that of a son adopted under the Hindu law. The  general  custom negativing the right of  the  appointed heir  to succeed collaterally in the family of his  adoptive father  is  stated  in  Art.  49  of  Rattigan’s  Digest  of Customary Law, 13th Edn., p. 572 thus :               "49.   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." The  rule in Art. 49 does not apply to a formal adoption  by the   customary  method.   The  customary  formal   adoption completely severs the connection of the adopted son with his natural  family and transplants him from his natural  family to  the  adoptive family.  Such an adoption confers  on  the adopted  son  the  right of  collateral  succession  in  the adoptive  father’s  family  and  takes  away  the  right  of collateral  succession  in the natural family.   The  formal adoption  may  be  made in accordance  with  custom  and  by observing  the customary forms, and it is not  necessary  to comply  with the rules of Hindu law in the matter of  ritual or  otherwise.   See  Abdur Rehman v.  Raghubir  Singh  (2), Waryaman v. Kanshi Ram (3). The Manual of Customary Law of the Amritsar District by H.   D.  Craik  in 1914 records the following  question  and answer-               "Question  91--Can  an  adopted  son   succeed               collaterally  in  the family of  his  adoptive               father ?               Answer  91.   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 (1) [1922] T.L.R. 3 Lah. 362 F.B,             (2) [1949]  51 P.L.R. 119. (3)  [1922] I.L.R. 3 Lah. 17. 397               succeed in this manner.  The latest ruling  on               this point is P.R. 107 of 1913 in which it was               held that among Jat Sikhas of the Taran  Taran               tehsil an adopted son, appointed by the  usual               customary  method, does not succeed to  colla-               terals     as    his     adoptive     father’s               representative." The English translation of the Urdu version of the  Riwaj-i- am of the Amritsar District for the year 1940 (Ex.  P.  C/1) records the following question and answer No. of                 Question                    Answer question 90         Can an adopted son          All the tribes, yes.           succeed collaterally         See Schedule I for           in the family of           his relevant mutations.           adoptive father ?         See Schedule II for                judgments             in civil     cases.

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Schedule  I  annexed to Ex.  P.C./1 gives  17  instances  of mutations  on collateral successions of adopted sons in  the family  of the adoptive father.  Schedule 11 annexed to  Ex. P.C./1  is  not  printed in the  paper  book.   The  English version of the Riwaj-i-am of the Amritsar District published by  A.  MacFARQUHAR in 1947 gives the list of  the  relevant judicial decisions bearing on question 90. The decided cases show  that  where  the adoption is by  way  of  a  customary appointment  of  an heir, the adopted son does  not  succeed collaterally  in the adoptive father’s family.   The  latest Riwaj-i-am refers to the Court rulings without  disapproval. In the light of the decided cases, the entries in the Riwaj- i-am  recognising  the  adopted son’s  right  of  collateral succession  in the adoptive father’s family should be  taken to  apply to cases of customary formal adoptions and not  to cases  of  adoptions  by way of  customary  appointments  of heirs. The relevant judicial decisions may be briefly noticed.   In Jowala  Singh  v. Mt.  Lachmi and others (1)  (Gil  Jats  of Tehsil  Ajnala, Amritsar), Mangal Singh v. Tilok  Singh  (2) (Sohel  Jats  of Tehsil Ajnala, Amritsar), Chetu  v.  Jawand Singh  and  others  (3) (Sikh Jats of  Tehsil  Taran  Taran, Amritsar),  it  was held that an heir  appointed  under  the customary  law of Jats in the District of Amritsar does  not acquire  a right to succeed to the collaterals of the  adop- tive  father,  and  in  Indar  Singh  v.  Mt.   Gurdevi  (4) (Amritsar  Jats),  it  was held that he  was  not  a  lineal descendant  of the adoptive father within the meaning of  S. 59 of the Punjab Tenancy Act XVI of 18 87.   2,1.7 (1)  14 P.R. of 1884. (3)  107 P.R. of 1913. (2)  61 P.R. of 1894. (4)  A.I.R. 1930 Lah. 8 97. 398 Conversely,   the  appointed  heir  retains  the  right   of collateral  such cession in his natural family.   See  Jagat Singh v. Ishar Singh () (Amritsar Jats).  On the other hand, according  to the customs of Jats in the Amritsar  District, in  a  case  of  a  formal  adoption  effecting  a  complete transplantation of the adopted son in the adoptive  father’s family, the adopted son is entitled to inherit  collaterally in  the adoptive father’s family.  See Teju v.  Kesar  Singh (2),  affirming the decision of Kapur, J. in Teja  Singh  v. Kesar Singh (3). We  thus  find  that  under the customary  law  of  Jats  in Amritsar  District, where the customary adoption  is  formal and the adopted son is completely transplanted in the family of  his  adoptive father, he is entitled to succeed  to  the collateral  relatives of the adoptive father.  This  finding is in harmony with the Riwaj-i-am of the Amritsar  District, is  supported by judicial decisions, and is not in  conflict with  Art. 49 of Rattigan’s Digest.  On the other  hand,  if the  customary adoption amounts to a mere appointment of  an heir,  the appointed heir is not entitled to succeed to  the collateral  relatives of the adoptive father.  This  finding is  in  harmony with Art. 49 of Rattigan’s  Digest  and  the judicial  decisions, and is consistent with  the  Riwaj-i-am properly interpreted in the light of the decided cases. In  Teju v. Kesar Singh (2), it was said that  the  ordinary rule in Amritsar District is that the adoption is  complete. In other cases, it was said that ordinarly such an  adoption is  by way of a customary appointment of an heir.  The  true rule  appears  to be that it is a question of fact  in  each case whether the adoption by a Jat in the Amritsar  District

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is  formal  or  informal.  The adoption  is  formal  if  the parties  manifest a clear intention that there should  be  a complete change of the family of the adopted son, so that he ceases  to be a member of his natural family and  loses  his right  of  collateral succession in that family and  at  the same  time becomes a member of the adoptive father’s  family and acquires a right of collateral succession in the family. The  loss  of  the right of  collateral  succession  in  the natural family is strong evidence to show that the  adoption is  formal and effects a complete change in the family.   On the  other  hand,  retention  of  the  right  of  collateral succession in his natural family indicates that the adoption was informal by way of customary appointment of an heir. The  onus is upon the plaintiffs-respondents to  prove  that the  adoption  of  Kala  Singh was  formal  and  effected  a complete change in his family.  On the death of the adoptive father  Megh Singh, Kala Singh inherited the  properties  of Megh  Singh, and on the death of Kala Singh, his sons,  Gian Singh  and  Dewan Singh, inherited  those  properties.   But these successions are consistent with the (1) I.L.R. 11 Lah. 645.                          (2)  A.I.R. 1954 Punjab 30. (3)  A.I.R. 1951 Punjab 117.                             399 informal appointment of Kala Singh as an heir to Megh Singh. According  to  custom’ the appointed heir  succeeds  to  the properties, left by the adoptive father, and on the death of the appointed heir, his male issue succeeds: see  Rattigan’s Digest  of  Customary Law, 13th Edn., Arts. 52 and  54,  pp. 572-573.   The succession of Kala Singh as the  reversionary heir  of  one Mst.  Bhagan is cited as  an  illustration  of collateral  succession  of the adopted son in  his  adoptive father’s family in the list of mutations given in Sch.  1 of the Riwaj-i-am of 1940 (Ex.  P.C./I). But the oral testimony on the record of this case discloses that Mst.  Bhagan,  who was the widow of a predeceased son of Megh Singh, was  given some  land  by Megh Singh for her maintenance,  and  on  her death,  Kala Singh succeeded to this land.  It will  appear, therefore, that Mst.  Bhagan got a life estate in this land, and  on  her death, the land reverted to Kala Singh  as  the adopted son of Megh Singh.  The succession of Kala Singh  to this  land  is,  therefore not  an  instance  of  collateral succession  of Kala Singh in his adoptive  father’s  family, and this was fairly conceded by learned counsel for the res- pondents.   Considering all the circumstances of  the  case, the  trial Court and the first Appellate Court  concurrently found  that  the  adoption  of Kala  Singh  was  by  way  of customary  appointment of an heir to Megh Singh.  On  second appeal, the High Court did not interfere with this  finding. The  finding  is  amply supported by the  materials  on  the record.   It  appears  that after his  adoption  Kala  Singh succeeded  to  the  lands left by one  Makhan,  his  natural brother and by one Hira Singh, his collateral in his natural family.  These collateral successions in the natural  family strongly  indicate that the adoption of Kala Singh  did  not effect  a change in his family.  The adoption of Kala  Singh was  no more than a mere appointment of an heir and  by  the custom  of the Jats in the District of Amritsar he  was  not entitled  to succeed collaterally in his  adoptive  father’s family.  For this reason, the suit out of which this  appeal arises, must be dismissed. The  District  Judge,  relying  on  Mangal  Singh  v.  Tilok Singh(1)  held that as Kala Singh was not an agnate  of  his adoptive father, he was not entitled to succeed cc laterally in  his adoptive father’s family, even assuming that  his  a

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option  was  valid.   This  aspect of  the  matter  was  not considered  by  the  High  Court at all.   In  view  of  our conclusions  on other points, we do not express any  opinion on this point. We allow the appeal, set aside the decree passed by the High Court,  restore the decree passed by the District  Judge  of Amritsar and direct that the suit be dismissed.  The parties will pay and bear their own costs throughout. Appeal allowed. (1)  I P.R. 1894. 400