Arjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963

Supreme Court of India

Bench: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta, J.C. Shah

           PETITIONER:
ARJAN SINGH AND ORS.

	Vs.

RESPONDENT:
NARAIN SINGH & ORS.

DATE OF JUDGMENT:
12/02/1963

BENCH:


ACT:
Customary	Law-Jats  of  Tehsil  Zira   of	  Ferozepore
District--Adoption--Formal  adoption in Hindu Law  and	cus-
tomary	 appointment  of  an   heir--Difference--Effect	  of
appointment of heir on connection with natural family.



HEADNOTE:
Harnam	Singh died leaving behind two daughters.  They	also
died without leaving any issue surviving them.	The  Revenue
authorities  ordered that the entire estate of Harnam  Singh
be entered in the revenue records in the names of the
defendants.
The plaintiffs filed a suit for possession of the estate  of
Harnam Singh.  Their contention was that notwithstanding the
adoption of Ghuda Singh, their predecessor, by his  maternal
uncle, they as descendants of Ghuda Singh were not  excluded
from  inheritance to the estate of a member in	the  natural
family	of  Ghuda  Singh.  It was also	contended  that	 the
family	of the plaintiffs and Harnam Singh was	governed  by
Zamindara  Riwaj-i-am  by virtue of which a son	 adopted  in
another	 family and his decendants did not lose their  right
to  inherit  in the natural family because by  the  adoption
according  to the custom of the community, the	adopted	 son
did  not  completely sever his connection with	his  natural
family.
The  contention	 of defendants-appellants was  that  in	 the
District of Ferozeporc, every adoption in a Hindu family was
formal	and according to the Riwaj-i-am of the District,  an
adopted	 son was excluded from the right to inherit  in	 his
natural family.	 Consequently, Ghuda Singh, who was  adopted
by  Bhan  Singh, could not inherit the	estate	because	 his
adoption  operated  as complete severance from	the  natural
family.
The  suit  was dismissed by the Subordinate  judge  and	 his
order  was  confirmed by the District judge.   However,	 the
High  Court  set aside the order of the District  judge	 and
held that the record disclosed no evidence that the adoption
of Ghuda Singh was formal and hence it must be presumed that
the adoption was a customary appointment of an heir and	 not
a  formal -adoption under the Hindu Law.  It was  also	held
that  there  was  overwhelming authority in  favour  of	 the
proposition  that  by reason of a  customary  adoption,	 the
adopted
20
son and his descendants were not excluded from the right  to
inherit	  to  collaterals  in  the  natural   family.	 The
plaintiffs as grandsons in the male line of Ghuda Singh were
entitled to inherit the estate.	 The appellants came to this
Court by a certificate of fitness granted by High Court.
Held, that the view of the High Court was correct.  A person
adopted according to the customs of the community, i.e.	 who
is  appointed as a heir to inherit the property of a  person
outside the family, does not. by virtue of such appointment,
lose  his right to inherit in his natural family except	 the
right  to  inherit the property of his natural	father	when
there are natural brothers.  The natural brothers would take
the property to the exclusion of such an adopted son and his
defendants.
Daya  Ram v. Sohel Singh (1906) P. R. No. 110 (F.B.),  Abdul
Hussain	 Khan  v.  Bibi Sona Dero 1917) L.R. 45	 I  .A.	 10,
Vaishno	 Ditti v. Rameshri (1928) L. R. 55 I. A.  407,	Mela
Singh v. Gurdas, (1922) 1. L. R. 3 Lah. 362, Jagat Singh  v.
Ishar Singh    30) I. L. R. 11 Lah. 615, Kanshi Ram v. Situ
(1934) I. L.   R.16 Lah. 214, Rahmat v. Ziledar (1945) 1. L.
R.26 Lah. 504  and  Jai Kapur v. Sher Singh, [1960] 3 S.  C.
R.975, referred to.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 223 & 224
of 1961.

Appeals from the judgment and decree dated April 25, 1956.
of the Punjab High Court in Civil Regular Second Appeals
Nos. 158 and 159 of 1949 respectively.

N. S. Bindra and K. L. Mehta, for the appellants.
Gurbachan Singh, Harbans Singh and M. L. Kapur, for the
respondents (in C. A. No. 224/61).

———————————|
| |
Roor Singh Bhola Singh
|
|
Harman Singh
|
|
|————————————–|
| |
Mst. Tejo Mst. Gejo
(Died without issue) (died without issue)
22
Harnam Singh grandson of Kahan Singh died leaving him
surviving two daughters Mst. Tejo and Mst. Gejo and no
male lineal descendant. The property of Harnam Singh
devolved upon his two daughters in equal shares. On the
death of Mst. Tejo without issue the entire estate was
entered in the name of Mst. Gejo by the revenue
authorities. Mst. Gejo also died in 1942 without leaving
any issue surviving her. By order dated September 6, 1945
the Assistant Collector directed that the entire estate be
entered in the name of Narain Singh s/o Dasaundha Singh
and Bakshish Singh, Ajaib Singh and Mukhtar Singh sons
of Ramji Singh-who will hereinafter be referred
to collectively as ‘the plaintiffs.’ In appeal to
the Collector of Ferozepore the order of the Assistant
Collector was set aside and the estate was directed to be
entered in the names of Tehl Singh and Arjan Singh sons of
Mangal Singh–who will hereinafter be referred to collecti-
vely as ‘the defendants.’ The Commissioner of the Division
confirmed the order of the Collector.

The plaintiffs who are the descendants of Ghuda Singh then
instituted suit No. 9/1947 in the Court of the Subordinate
judge, Zira for a decree for possession of the estate of
Harnam Singh, barring a small area of 8 Kanals and 11
MarlasKhasra No. 325–which was in their possession. The
defendants who are the descendants of Wazir Singh in their
turn commenced an action (Suit No. 13/1947) for possession
of Khasra No. 325 against the plaintiffs. Each side claimed
title to the estate of Harnam Singh according to the
customary law applicable to the Jats residing in tehsil
Zira, District Ferozepore. It was the case of the
plaintiffs that notwithstanding the adoption of Ghuda Singh
by his maternal uncle Bhan Singh, Ghuda Singh’s descendants
were not excluded from inheritance to the estate of a member
in the natural family of Ghuda Singh It was submitted by the
plaintiffs
23
that the family of the plaintiffs and Harnam Singh was
governed by Zamindara Riwaj-i-am (general custom obtaining
amongst the Zamindars) by virtue of which a son adopted in
another family and his descendants do not lose their right
to inherit in their natural family, because by the adoption
according to the custom of the community the adopted son
does not completely sever his connections with his natural
family. The defendants, on the other hand, claimed that in
the District of Ferozepore every adoption in a Hindu family
is ‘formal’ and according to the Riwaj-i-am of the District
an adopted son is excluded from the right to inherit in his
natural family. Consequently Ghuda Singh, who was adopted
by Bhan Singh, could not inherit the estate of Hamir Singh,
his adoption operating as a complete severance from the
natural family. The sole dispute between the parties was,
therefore, as to the customary law applicable to the rights
of a son adopted in a jat family residing in tehsil Zira,
District Ferozepore.

The two suits were consolidated for trial. The Subordinate
judge held that all ceremonies relating to adoption were
performed and Ghuda Singh ceased to be a member of the
family of his natural father according to the custom
prevailing in the District and the plaintiffs who were the
descendants of Ghuda Singh could not inherit the estate of
Hamir Singh. In so holding he relied upon the manual of
Riwaji-i-am of Ferozepore District prepared in 1914, which,
in his view, recorded that when any adoption in the District
takes effect the adopted on adoption son stand transplanted
to the family of the adopter. In appeal the District Court,
Ferozepore held that in the case of Jats of Ferozepore
District by special custom prevailing in the District, the
adopted son bad the right to inherit collaterally in the
family of his adoptive father only and could not inherit
collaterally in his natural father’s family. In second
appeal the High Court of Punjab set aside the decree passed
24
by the District Court. In the view- of the High Court the
record disclosed no evidence that the adoption of Ghuda
Singh made by his maternal uncle Bhan Singh was formal and
in the absence of any such evidence it must be presumed that
the adoption was a customary appointment of an heir and not
a formal adoption under the Hindu Law and that there was
overwhelming authority in favour of the proposition that by
reason of a customary adoption the adopted son and his
descendants were not excluded from the right to inherit to
collaterals in the natural family. The High Court
accordingly held that the plaintiffs, as grandsons in the
male line of Ghuda Singh, were entitled to inherit the
estate of Hamir Singh. With certificate of fitness granted
by the High Court, these two appeals are preferred by the
defendants.

It is common ground that Ghuda Singh was adopted some time
before 1856 by Bhan Singh, his maternal uncle. The dispute
between the parties has to be resolved by applying the
customary law applicable to the parties, because s. 5 of the
Punjab Laws Act, 1872 which governs the parties provides
that :

“In questions regarding succession, special property of
females, betrothal and marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partition, or any religious usage or insti-
tution, the rule of decision shall be-

(a) any custom applicable to the parties concerned, which

-is not contrary to justice, equity or good conscience, and
has not been by this or any other enactment altered or
abolished, and has not been declared to be void by any
competent authority
25

(b) The Muhammadan Law in cases where the parties are
Muhammadans, and the Hindu Law, in cases where the parties
are Hindus, except in so far as such “law has been altered
or abolished by legislative enactment, or is opposed to the
provisions of this Act, or has been modified by any such
custom as is above referred to.”

In Daya Ram v. Sohel Singh (1), Rober son, J., (at P. 410)
in dealing with the true effect of s. 5 observed :
“In all cases it appears to me under this Act, it lies upon
the person asserting that he is ruled in regard to a
particular matter by custom, to prove that he is so
governed, and not by personal law, and further, to prove
what the particular custom is. There is no presumption
created by the clause in favour of custom; on the contrary,
it is only when the custom is established that it is to be
the rule of decision. The Legislature did not show itself
enamoured of custom rather than law, nor does it show any
tendency to extend the “Principles’ of custom to any matter
to which a rule of custom is not clearly proved to apply.
It is not the spirit of customary law, nor any theory of
custom or deductions from other customs which is to be a
rule of decisions, but only ‘any custom applicable to the
parties concerned which is not……… and it “therefore’
appears to me clear that when either party to a suit sets up
‘custom’ as a rule of decision, it lies upon him to prove
the custom which he seeks to apply; if he fails to do so
clause (b) of s. 5 of the Punjab Laws Act applies, and the
rule of decision must be the personal law of the parties
subject to the other provisions of the clause.”
This view was affirmed by the judicial Committee
(1) (1906) P.R. No. 110 (F.B.).

of the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero
(1). In Vaishno Ditti v. Rameshri (2), the ,Judicial
Committee observed :

“x x x x their Lordships are of opinion that in putting
custom in the forefront, as the rule of succession, whilst
leaving the particular custom to be established, as it nece-
ssarily must be, the Legislature intended to recognize the
fact that in this part of India inheritance and the other
matters mentioned in the section are largely regulated by a
variety of customs which depart from the ordinary rules of
Hindu and Mohamedan law.”

The pleadings also disclose an unanimity that the rights of
the parties have to be adjudged in the light of the
customary law applicable and not by the rules of Hindu Law.
The relevant general custom which is applicable in the
matter of adoption is to be found in Rattigan’s Digest of
Civil law for the Punjab, 13. Edn. p. 572
Article 48
“An heir appointed in the manner above described ordinarily
does not thereby lose his right to succeed to property in
his natural family, as against collaterals, but does not
succeed in the presence of his natural brothers.”
Article 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.”

This adoption, according to Rattigan is irrevocable and an
adopted son cannot relinquish his status.
(1) (1917) L.R. 45. I.A. 10. 2) (1928) LR, 55 I.A. 107,

421.
27
Article 52 sets out the rights of the adopted son. It
states :

“The appointed heir succeeds to all the rights and interests
held or enjoyed by the appointer and, semble, would succeed
equally with a natural son subsequently born.”
There is a long course of decisions in the High Court of
Lahore and the High Court of Punjab in which it has been
held that the relationship between the appointed heir and
the appointer which is called adoption is purely a personal
one and resembles the Kritrima form of adoption of Hindu
Law: Mela Singh v. Gurdas (1), Sir Shadi Lal, C.J. observed
in dealing with the effect of a customary adoption in the
Punjab :

“The tie of kinship with the natural family is not dissolved
and the fiction of blood relationship with the members of
the new family has no application to the appointed heir.
The relationship established between the appointer and the
appointee, is a purely personal one and does not extend
beyond the contracting parties on either side.”
Similarly in Jagat Singh v. Ishar Singh (2), it was held
that the reservation as to the adopted son not succeeding in
the presence of his brothers refers only to his succession
to his natural father but does not apply to cases of
collateral succession in his natural family A similar view
was expressed in Kanshi Ram V. Situ (3), and Rahmat v.
Ziledar (4). In the last mentioned case it was stated :
“Under the general custom of the province a person who is
appointed as an heir to a third person does not thereby lose
his right to succeed to the property of his natural father.
But
(1)(1922)I.L.R.3 Lah.362(F.B.) (2)(1930)1.L.R.II Lah.615.
(3) (1934) 16 Lah. 214. (4) (1945) I.L.R. 26 Lab. 540.

the appointed heir and his lineal- descendants have no right
to succeed to the property of the appointed heir’s natural
father against the other sons of the natural father and
their descendants. The appointed heir can succeed to the
property of his natural father when the only other claimant
is the collateral heir of the latter.”

But it is urged on behalf of the defendants that the general
custom applicable to the Punjab as recorded by Rattigan is
shown to be superseded by proof of a special custom of the
District recorded in the Riwaj-i-am of Ferozepore District
prepared by Mr. Currie at the settlement of 1914, and
reliance is placed upon answers to Questions 76 and 77 which
deal with the effect of adoption. The Questions and the
Answers recorded are :

“Question 76–Does an adopted son retain his right to
inherit from his natural father ? Can he inherit from his
natural father if the natural father dies without other sons
?

Answer-All agree that the adopted son cannot inherit from
his natural father, except as for as regards such share of
the property as would come to his adoptive father as a
collateral. Sodhis ‘however’ say that he can inherit his
natural father’s estate if the latter has no male
descendants, while the Nipale say the adopted son inherits
from both fathers.

Question 77-Describe the rights of an adopted son to inherit
from his adoptive father. What is the effect of the
subsequent birth of legitimate sons to the adoptive father ?
Will the adopted son take equal shares with them ? If
natural legitimate sons be born subsequently to the adoption
where the chundawand system
29
of inheritance prevails, how will the share of the adopted
son, whose tribe differs from that of the adoptive father,’
inherit from him ? Does an adopted son retain his own got or
take that of his adoptive father ?

Answer-An adopted son has exactly the same rights of
inheritance from his adoptive father as a natural legitimate
son. The inheritance would only be by chundawand, if that
was the prevalent rule of the family.

The Nipals, Rajputs, Arains, Moghals, Sayyads, Gujjars and
Muhammadan Jats state that if the adopted son is of a
different got he takes the got of his adoptive father ;
while if he is of a different tribe, he cannot inherit.
As it is, as a rule aged men without hope of sons who adopt,
cases of the birth of legitimate sons after adoption has
taken place must be rare.”

When there is conflict between the general custom stated in
Rattigan’s Digest of Customary Law and the Riwaj-i-am which
applies to a particular area it has been held by this Court
that the latter prevails. In Jai Kapur v. Sher Singh (1),
it was observed
“There is, therefore, an initial presumption of correctness
as regards the entries in the Riwaj-i-am and when the custom
as recorded in the Riwaj-i-am is in conflict with the
general custom as recorded in Rattigan’s Digest or
ascertained otherwise, the entries in the Riwaj-i-am should
ordinarily prevail except that as was pointed out by the
Judicial Committee in Mt. Subhani v. Nawab [A.I.R. 1941
(1) [1960] 3 S. C.,R, 975. 979.

(P. C.) 21], “that where, as in the present case, the
Riwaj-i-am affects adversely the rights of females who had
no opportunity whatever of appearing before the revenue
authorities, the presumption would be weak, and only a few
instances would suffice to rebut it.”

Therefore when there is a conflict between the record of
custom made in Rattigan’s Digest of Customary Law and the
local Riwaj-i-am, prima facie, the latter would prevail to
the extent of the inconsistency, and it would be for the
person pleading a ‘custom or incident thereof different from
the custom recorded in the Rewaj-i-am to prove such custom
or incident. Attention must, therefore, be directed to the
question whether there is in fact Any inconsistency between’
the custom recorded in Rattigan’s Digest of Customary Law
and the relevant entries in the Riwaj-i-am. The general
custom recorded in Rattigan’s Digest is apparently this : a
person adopted according to the custom of the community i.e.
who is appointed as an heir to’ inherit the property of a
person outside the family does not, by virtue of such
appointment, lose his right to inherit the property in his
natural family except the right to -inherit the property of
his natural father when there are natural brothers. The
natural brothers would take the property to the exclusion of
such an adopted son and his descendants. Question 76 in the
Riwaj-i-am primarily refers to the right of an adopted son
to retain his right to inherit the property of his natural
father and the answer recorded is that the adopted son
cannot inherit the property of the natural father, except
such property as would devolve upon his adoptive father as a
collateral (of the adopted son’s natural father). It is to
be noticed that the question was directed to ascertain the
right of the adopted son to inherit the estate of his
natural father : it did not seek elucidation on the right of
the adopted son to inherit the estate of any collaterals of
the natural
31
father, and the fact that in the answer it was recorded that
to the estate which would devolve upon his adoptive father
as a collateral of his natural father he has a right of
inheritance, strongly supports the view that the village
elders in replying to the question were only concerned with
the right of an adopted son to inherit the property of his
natural father and were not concerned to dilate upon any
right to collateral succession in the natural family. The
answer to question 77 also supports this view.When asked to
describe the rights of an adopted ‘on to inherit the estate
of his adoptive father, they replied that the adopted son
had exactly the same rights of inheritance from his adoptive
father as a natural legitimate son.

Mr. Bindra appearing on behalf of the defendants submitted
that questions 76 and 77 were in-tended to ascertain the
custom of the District relating to the rights of the adopted
son in his natural family and the family of his adoptive
father and the answers must be read in that light. We are
unable to accept this suggested interpretation of Questions
76 and 77 and the information elicited thereby. The
Riwaj-i-am appears to have been carefully compiled by
officers of standing and experience and it is clear that
they made a limited enquiry about the rights of an adopted
son to inherit the property of his natural father and of his
adoptive father. There is undoubtedly some conflict between
the custom recorded in Rattigan’s Digest and the custom in
the Riwaj-i-am. Whereas in Rattigan’s Digest it is recorded
that an heir appointed in another family does not succeed to
his natural father in the presence of his natural brothers,
in the Riwaj-i-am it is recorded that the adopted son does
not directly inherit the estate of his natural father in any
event, But we are not concerned with that’ inconsistency in
this case. It is sufficient to observe that in Art. 48 of
Rattigan’s Digest, it is
32
recorded that an heir appointed in the manner described (an
adopted son) does not thereby lose his right to succeed to
property in his natural family : and nothing inconsistent
therewith is shown to be recorded in the Riwaj-i-am of the
District.

Mr. Bindra contended that in any event there is clear
evidence of instances of devolution of property in the
family of the parties indicating that a son adopted in
another family was totally excluded from inheritance in the
natural family. Counsel relied upon Ext. D-5 an extract
from the register of mutations relating to certain
agricultural lands in village Umri Ana. It appears from
that extract that on the death of Hamir Singh the estate was
in the first instance entered in the names of his three
sons. But Salig Ram, Patwari of the village, made a report
on May 28, 1884 that Kahan Singh and Chuhar Singh (two of
the sons of Hamir Singh) claimed that Ghuda Singh had never
been in possession of the 1/3rd share of the Khata entered
in his name and that Ghuda Singh himself had admitted that
he had no concern with the Khata in question and that his
name should be removed. On that report the Assistant
Collector ordered that the lands be entered in the names of
Kahan Singh and Chuhar Singh and that the name of Ghuda
Singh be removed from the mutation entry and that the
Jamabandi papers be altered accordingly. But this instance
of exclusion of Ghuda Singh from the right to participate in
the estate of his father is consistent with the statement of
custom recorded in Rattigan’s Digest. It is expressly
recorded in Art. 48 that an appointed heir does not thereby
lose his right to succeed to property in his natural family,
as against collaterals, but he does not succeed in the
presence of his natural brothers. Kahan Singh and Chuhar
Singh were brothers of Ghuda Singh and Ghuda Singh having
been adopted could not, according to the custom recorded in
33
Rattigan’s Digest, inherit his fathers estate in the
“presence of his brothers.”

The other instance relied upon by counsel is about the
devolution of the estate of Chuhar Singh on the remarriage
of his daughter Bishno. On the death of Chuhar Singh it
appears that his property was entered in the name of his
daughter Bishno, and when Bishno contracted a Karewa
marriage according to the custom prevalent in the community,
the estate held by her was entered in the name of Rura Singh
and Bhola Singh sons of Kahan Singh. In the register of
mutations Ext. R D-1 it is recorded that Ghuda Singh who
was the Lambardar appeared before the Tehsildar and
identified Mst. Bishno and stated that she had contracted
Karewa marriage with jawala Singh and further admitted that
Rura Singh and Bhola Singh were entitled to take her
property, and pursuant to this statement the Tehsildar
directed that mutation regarding succession be sanctioned in
favour of Rura Singh and Bhola Singh in equal shares. This
instance also, in our judgment, does not support any case of
departure from the custom recorded in Rattigan’s Digest. It
is clear from the genealogy and the extract of the register
of mutations Ext. D-1 that the occasion for making an entry
of mutation was the remarriage of Bishno. Mr. Bindra
submitted that according to the custom of the community a
daughter inheriting property, from her father would on
marriage be divested of the property, which would devolve
upon the collaterals of her father, and according to that
custom when on the remarriage of Bishno the succession
opened, Ghuda Singh was on his own admission excluded. This,
counsel submitted, was a stronginstance supporting a
departure from the custom recorded in Rattigan’s Digest.
But if by virtue of the custom prevalent in the community,
as asserted by Mr. Bindra, on her marriage Bishno would lose
her interest in the property of her father, it is
34
difficult to appreciate how she acquired title or continued
contrary to that custom, to remain owner of the property of
her father after her first marriage. It is clear that it
was not because of her marriage, but on re-marriage, that
the property was alleged to have devolved upon Rura Singh
and Bhola Singh. Why Bishno did not forfeit her right to
the property on her marriage and forfeited her right thereto
on remarriage has been left in obscurity.
The learned judges of the High Court held that the mere
circumstance that Ghuda Singh permitted the estate to go to
the descendants of Kahan Singh was not by itself sufficient
to establish the custom set up by the defendants and
uncontested instances were of little value in establishing a
custom. They observed that the instance might have received
considerable reinforcement if it had been shown that Ghuda
Singh or any of his descendants had inherited collaterally
in the family of Bhan Singh but except succession of Ghuda
Singh to the estate of Bhan Singh which is in accordance
with the general custom no proof of collateral succession
was established, and the single instance of Chuhar Singh’s
estate devolving upon the descendants of Kahan Singh with
the consent of Ghuda Singh does not establish any custom
contrary to what is stated in Rattigan’s Digest. We are
unable to disagree with the view so expressed.
On that view of the case, these appeals fail and are
dismissed with costs.

Appeal dismissed.

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Arjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963

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