JUDGMENT
Satish Kumar Mittal, J.
1. This judgment shall dispose of Regular Second Appeals No. 1919 and 2384 of 1985, filed by defendant Mohinder Singh and plaintiff Gurbax Singh, respectively. Both these appeals have arisen from the suit for possession filed by the plaintiff regarding the properties of one Dasbndha Singh claiming himself as his adopted son.
2. The said Dasondha Singh was owner of the land measuring 40 Bighas 15 Biswas, a house and an electric motor, as mentioned in the plaint, which are the properties in dispute in the instant case. He died on 4.8.1980. On 6.9.1980, the plaintiff Gurbax Singh, who is sister’s son of Dasondha Singh, instituted the present suit for possession of the aforesaid properties in dispute alleging therein that he was adopted by Dasondha Singh vide a registered adoption deed dated 3.2.1946 (Ex.P3) as his son. After the adoption, Dasondha Singh treated him as his son and he also treated him as his lather. He continuously served him during his life time. It was further pleaded that after the death of Dasondha Singh, when the plaintiff approached to the Patwari for entering the mutation of inheritance of the property of Dasondha Singh in his name, he came to know that the same was already got mutated by defendant Mohinder Singh in his name on the basis of two civil court decrees dated 15,3.1973 and 1.5.1974, which were suffered by Dasondha Singh in his favour collusively on the basis of an alleged family settlement. The plaintiff Gurbax Singh also challenged both the decrees by pleading that the same are illegal, void and ineffective and not binding on his right to succeed to the properties left by Dasondha Singh being his adopted son. It was further pleaded that Mohinder Singh was a stranger and was not related to Dasondha Singh, therefore, there was no occasion for him to transfer the ownership rights in the suit properties in favour of Mohinder Singh on the basis of a family settlement, because there cannot be any family settlement between the strangers. The alleged family settlement mentioned in the earlier two suits was nothing but a mere cloak for the transfer of the suit properties. It was further pleaded that there was no pre-existing right of Mohinder Singh in the properties of Dasondha Singh, therefore, the two collusive decrees, which were unregistered, were nothing but instruments of transfer of the property of the values exceeding Rs. 100/-. Thus, those were illegal, void and not binding on the rights of the plaintiff. In addition to the claim of possession, the plaintiff also prayed for mesne profits for use and occupation @. Rs. 300/- per month from the defendant from 1.9.1980 till the actual date of possession of the suit properties.
3. Defendant Mohinder Singh contested the aforesaid suit by alleging that the plaintiff was never validly adopted by Dasondha Singh; the adoption deed, referred to. in the plaint, was only a paper transaction; plaintiff was never treated as adopted son by Dasondha Singh; plaintiff never served him in any capacity and, thus, has no right to succeed his properties and that even the alleged adoption was cancelled by Dasondha Singh vide another registered deed dated 29.9.1964. It was further pleaded that relations between the plaintiff and Dasondha Singh were not good, as the plaintiff was having illicit relations with Ram Rakhi, with whom Dasondha Singh performed Kareva marriage, It was further pleaded that the plaintiff also used to beat and maltreat Dasondha Singh. Thus, Dasondha Singh, out of love and affection and due to the services rendered by the defendant, executed a registered Will dated 23.7.1971 in favour of the defendant regarding his proprieties. It was further pleaded that the defendant and Dasondha Singh formed a coparcenary; the properties in the hands of Dasondha Singh were the coparcenary and under a family settlement, the defendant received the properties in question, as his share, and the possession thereof was also delivered to him. Subsequently, the said settlement was recognized by the Court when two suits filed by the defendant were decreed on the basis of the admitted written statements filed by Dasondha Singh. Thus, it was pleaded that the two civil court decrees dated 15.3.1973 and 1.5.1974 are legal and valid as the suits of the defendant were decreed on the basis of the family settlement, which recognized the pre-existing right of the defendant in the suit properties.
4. On the pleadings of the parties, the following issues were framed by the trial court:-
1. Whether Gurbax Singh is the adopted son of Dasaundhi alias Dasaundha Singh deceased? OPP
2. Whether the decrees in civil suit No. 15 dated 15.3.73, and 155 dated 1.5.74, are inoperative, against the law and without jurisdiction qua the rights of the plaintiff on the grounds mentioned in para No. 5 of the plaint? OPP
3. Whether the suit is within time? OPP
4. Whether Dasaundhi deceased executed a valid will dated 23.7.71, in favour of the defendant? OPD
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether the property in suit is coparcenary property of Dasaundhi and the defendant got the same in family arrangement? OPD (Objected to)
7. Whether the suit is not properly valued for purposes of court fee and jurisdiction? OPD
8. Whether the suit is not maintainable in the present form? OPD
9. Whether the defendant is entitled to special costs of the suit? OPD
10. Whether the plaintiff is entitled to mesne profits? If so to what amount? OPD
11. Relief.
5. After considering the evidence led by both the parties, the learned trial court decreed suit of the plaintiff for possession of the properties in question, however, his suit regarding mesne profits was dismissed.
6. The issue of adoption was decided by the trial court in favour of the plaintiff Gurbax Singh. It was held that he is the adopted son of Dasondha Singh and was validly adopted by him being his sister’s son, which was permissible under the customs. It was further held that after the adoption, Dasondha Singh used to treat the plaintiff as his son and he used to treat Dasondha Singh as his father. It was also held that after the adoption, Dasondha Singh and the plaintiff were living jointly as father and son and Dasondha Singh performed marriage of the plaintiff. It was also found that on the death of Dasondha Singh, his bhog ceremony was performed by plaintiff Gurbax Singh. It was held that after the adoption the plaintiff became the member of the family of Dasondha Singh as a coparcener. The said findings were recorded on the basis of oral as well as documentary evidence i.e. the statements of PW1 Bagga Singh, who is the elder brother of Dasondha Singh deceased, PW3 Telu Singh, a resident of the village, PW6 Ajmer Singh, a Panch of the village, PW7 Kaka Singh and PW8 Sadhu Singh, besides the statement of the plaintiff himself as PW5. The plaintiff has also proved on record the adoption deed (Ex.P3) as well as the voter list (Ex.P2), in which he has been described as son of Dasondha Singh.
7. Regarding the evidence led by the defendant, it was held that once the adoption is validly made, the same cannot be cancelled or set aside nor the adopted son can be disinherited on the ground of any mis-conduct, disobedience or to neglect the adoptive father.
8. Regarding the nature of the suit property, it was held that the same was ancestral and caparcenary property of Dasondha Singh deceased. On issue No. 2, both the collusive decrees dated 15.3.1973 and 1.5.1974 were held to be illegal and void and not binding on the rights of the plaintiff. In this regard, it was held that Mohinder Singh was no where related to Dasondha Singh and was a stranger to the family. It was further held that no family settlement, on the basis of which the aforesaid two decrees were got suffered, was proved. It was further held that there was no pre-existing right vested in the defendant regarding the suit properties, therefore, the alleged decrees were instruments of transfer of the property of the value of more than Rs. 100/- without there being any registration. However, it was held that though Dasondha Singh executed a valid Will dated 23.7.1971 in favour of the defendant but under the said Will the defendant is not entitled for the suit property, which was ancestral and caparcenary property of Dasondha Singh, in view of the fact that the plaintiff was the adopted son of Dasondha Singh and Dasondha Singh was not competent to execute the Will in respect of the coparcenary properly in favour of the defendant depriving his adopted son from the same. The suit of the plaintiff was found to be within limitation.
9. In appeal by the defendant, the finding of the trial court regarding adoption, nature of the property, nature of the collusive decrees, limitation and execution of the Will dated 23.7.1971 were affirmed. However, the aforesaid decree was partly modified by the first appellate Court, and suit of the plaintiff for possession was partly decreed only to the extent of half share in the properties in dispute. His suit regarding the remaining half share was dismissed. The said modification was made on the ground that even if the adoption of the plaintiff by Dasondha Singh is held to be valid and even if the properties in question are held to be ancestral properly of Dasondha Singh, then he was legally entitled to dispose of his undivided share/interest in the coparcenary property by way of Will in view of the Explanation to Section 30 of the Hindu Succession Act (for short ‘the Succession Act’)- Therefore, the Will dated 23.7.1971, executed by Dasondha
Singh in favour of the defendant was held to be valid to the extent of his share, and to that extent the suit of the plaintiff was dismissed. The cross-objections filed by the plaintiff regarding mesne profits were dismissed.
10. Against the said judgment, both the parties have filed the instant two appeals.
11. I have heard the arguments of learned counsel for both the parties and have gone through the records of the case.
12. Learned senior counsel for the defendant Mohinder Singh assailed the finding recorded by the Courts below on the issue of adoption of the plaintiff by Dasondha Singh. He submitted that the evidence led by the plaintiff in this regard are not sufficient to prove that he was validly adopted by Dasondha Singh as his son. He submitted that a person who seeks to displace the natural succession to the property by alleging an adoption must discharge the burden that lies upon him by proof of factum of adoption and its validity. He further submitted that the alleged adoption of the plaintiff by Dasondha Singh was a customary adoption and the same was made in the year 1946, when the Hindu Adoptions and Maintenance Act, 1956 (for short the Adoption and Maintenance Act) was not existing. He submitted that the said customary adoption was nothing but a mere appointment of a legal heir by Dasondha Singh. Such appointment of a legal heir only creates a personal relationship between the adoptive father and the appointed heir. It does not create any tie of kinship between the appointed heir and the collaterals of the adoptive father. Learned counsel further submitted that under the customary law, the status of the appointed heir is different from that of a son adopted under the Hindu Law. He further submitted that such an appointed heir/adopted son has no locus standi to contest the alienation of the property made by the appointor/adoptive father during his life time, even if the said alienation was of the ancestral/coparcenary property of the adoptive father. Thus, he submitted that the plaintiff, being an appointed heir only, was not competent to challenge the two collusive decrees suffered as well as the Will dated 23.7.1971 executed, by Dasondha Singh. In support of his contention, learned counsel for the defendant relied upon two decisions of the Lahore High Court in Mela Singh v. Gurdas A.I.R. 1922 Lahore 433 and Pir Mal and Ors. v. Teja Singh and Anr. A.I.R. 1929 Lahore 426, wherein it was held that a customary adoption is nothing but an appointment of a legal heir and an adopted son under the custom has no locus standi to contest an alienation of property made by his adoptive father under the provisions of the Punjab Custom (Power to Contest) Act, 1920 (for short ‘the Custom Act’). However, if such adopted son falls within the relationship of a collateral of fifth degree, he could contest the alienation being collateral of the alienor but not being adopted heir of the alienor. In the instant case, the plaintiff is not the collateral of Dasondha Singh as he is only his sister’s son, therefore, he was not competent to challenge the alienation made by Dasondha Singh in his life time.
13. Learned counsel for the defendant further relied upon a decision of this Court in Surjit Kaur v. Zail Singh and Ors., (1977)79 P.L.R. 690, wherein it was held that an adopted son cannot challenge the Will executed by the adoptive father in favour of his daughter bequeathing his property in her favour being contrary to the principle of customary law in the State of Punjab in view of the amendment made by Act No. 12 of 1973 in the Custom Act. Similarly, he also relied upon another decision of this Court in Amin Lal and Ors. v. Om Parkash and Ors., (1993-2)104 P.L.R. 712, wherein it was held that in case a person wants to challenge alienation of ancestral property, he must be proved to be related to the donor.
14. While referring to Section 30 of the Adoptions and Maintenance Act, learned counsel for the defendant further submitted that in this case, the alleged adoption was made in the year 1946 i.e. much prior to the commencement of the Adoptions and Maintenance Act, therefore, the validity and the effect of such an adoption has to be determined in accordance with the position existing prior to the Adoptions and Maintenance Act. He submitted that the adoption in question was customary, which was nothing but appointment of a legal heir. Though, such adoption has been abolished now under Section 4 of the Adoptions and Maintenance Act, but the nature of the adoption in the instant case would not change, in view of Section 30 of the Adoptions and Maintenance Act as the provisions of Sections 4 and 12 of the said Act will not be applicable in the instant case. Section 12 of the Adoptions and Maintenance Act provides that an adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. In view of this Section, now there is no scope for customary adoption i.e. appointment of legal heirs. But Sections 4 and 12 of the Adoptions and Maintenance Act will not be applicable on an adoption, which was made prior to coming into force of this Act. The validity and effect of such adoption will be determined on the basis of law or custom prevailed at that lime. In the instant case, the adoption was made in the year 1946 under the custom. The said adoption was nothing but the appointment of a legal heir. Thus, the status of the plaintiff will not change after coming into force of the Adoptions and Maintenance Act and the validity and effect of the adoption of the plaintiff by Dasondha Singh has to be analysed according to the position existing prior to the Adoptions and Maintenance Act. In nutshell, the contention of learned counsel for the defendant is that under the customary law of Punjab, the adoption of the plaintiff was nothing but an appointment of a legal heir and by such appointment, he was not transplanted to the family of the appointor or conversely he did not become grandson of Rur Singh, father of Dasondha Singh. Therefore, he could not form a coparcenary with Dasondha Singh, and without being a coparcener, he did not have any right to challenge any alienation made by his appointor i.e. Dasondha Singh. In support of his contention, learned counsel for the defendant relied upon a decision of the Hon’ble Apex Court in Daniraiji Vrajlalji, Junagadh v. Maharaj Shri Chan-draprabha, A.I.R. 1975 Supreme Court 784, wherein it was held that an adoption in ‘Goda Datta’ form made before the passing of the Adoptions and Maintenance Act can be cancelled or revoked even after coming into force of that Act. Neither Section 4 nor Section 15 of the Adoptions and Maintenance Act is retrospective in its operation. Any custom or usage as part of the Hindu Law in force prior to the commencement of the Act has ceased to have effect in regard to any matter for which provision has been made in Chapter-II, except what has been expressly provided in the Adoptions and Maintenance Act, which prohibits cancellation of adoption, applies to an adoption which has been validly made in accordance with the provisions contained in Chapter II of the Adoptions and Maintenance Act and after its commencement. It does not do away with the incident and characterstic of revocability of the custom of Goda Datta. Validity of an adoption made before the commencement of the Adoptions and Maintenance Act and also its effect has to be examined and determined with reference to the law or the custom as it stood prior to the coming into force of the Adoptions and Maintenance Act and not in accordance with it. Thus, on the basis of the aforesaid, learned counsel for the defendant submitted that the plaintiff being only an appointed heir under the customary law was having no locus standi to contest the alienation made by Dasondha Singh. By such an adoption, he did not become the member of the family of his adoptive father and thus, he did not acquire the status of a coparcener. Therefore, neither he has any right in the coparcenary property being a coparcener nor he has right to challenge the alienation of the ancestral coparcenary property made by Dasondha Singh during his life time.
15. Learned counsel for the defendant further submitted that even after the aforesaid customary adoption, Dasondha Singh remained full and absolute owner of his property during his life time being sole surviving coparcener, and he being the exclusive owner had every right to alienate it by Will or in any other manner at his pleasure. According to the learned counsel, prior to the coming into force the amendment made in the Custom Act, the plaintiff being the adopted son under the customary law could challenge the alienation made by Dasondha Singh by way of Will of his entire property in favour of the defendant on the ground that such alienation by the adoptive father bequeathing all his property to others and thereby disentitling the adopted son of his property to succeed to any property on his adoptive father’s death is invalid and ineffective under the custom. But after the said amendment, the plaintiff only being a legal heir of the adoptive father could not have challenged such alienation contrary to the custom. Thus, learned counsel submitted that the trial court had wrongly held that under the custom Dasondha Singh was having no right to dispose of his property by Will, and the first appellate court has also wrongly concluded that the plaintiff was having half share in the properties in dispute being coparcener in the property on account of his adoption by Dasondha Singh. He further submitted that the finding recorded by both the Courts below that the property in dispute is coparcenary property is wrong and against law. Therefore, according to learned counsel for the defendant, the properties in dispute were not ancestral and coparcenary in the hands of Dasondha Singh and he was fully competent to alienate the said property by way of Will or in any other manner. Since the Will in favour of the defendant was held to be valid by both the Courts below, suit of the plaintiff could not have been decreed.
16. Secondly, learned counsel for the defendant challenged the finding recorded by the Courts below on the issue of two collusive decrees. Me submitted that the consent decree is as good as the other decree for the purpose of conferring the title in whose favour such decree is passed. He further submitted that the aforesaid two decrees were passed in favour of the defendant on the basis of the admitted written statements filed by Dasondha Singh, therefore, such decrees cannot be held to be illegal and void and having no effect on the rights of the plaintiff, on the grounds that the family settlement alleged in those decrees was not proved, and that those decrees were not registered one and were not suffered on account of pre-existing right of the defendant. Me further submitted that the plaintiff has no legal right to question the aforesaid two decrees, as he was having no locus standi being only an appointed heir. He submitted that those decrees could have been declared collusive and void, if the same were suffered with a view to defeat the right of the plaintiff, who was having bonafide claim over the property of Dasondha Singh. Thus, according to learned counsel for the defendant, the finding recorded by the Courts below that the aforesaid two decrees are not legal and binding on the right of the plaintiff is wrong.
17. On the other hand, learned senior counsel for the plaintiff submitted that under the customary law, there was a distinction between the customary formal adoption and adoption by way of customary appointment of heir. In customary formal adoption, the person in adoption completely severs the connection 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 lakes away the right of collateral succession in his natural family. Learned counsel sub-milted that the defendant, no where in the pleadings, has set up the case that the adoption of the plaintiff was in the nature of appointment of a legal heir. He further submitted that the formal adoption could have been made in accordance with law and by observing the customary forms and method and it was not necessary to comply with the rules of Hindu Law in the matter of ritual or otherwise. Such kind of adoption could not be termed as customary adoption. He further submitted that in the instant case, from the evidence on record, it is clear that adoption of the plaintiff was a formal adoption by the customary method. In this regard, he referred to the statements of PW1 Bagga Singh, who was the elder brother of Dasondha Singh, PW3 Telu Singh, who was resident of the village and was present at the time of the adoption, PW7 Kaka Singh, who was Ex-Sarpanch of the village, PW6 Ajmer Singh, who was Sarpanch of the village and the statement of the plaintiff Gurbax Singh himself as PW5. All these witnesses have categorically staled that the plaintiff, who was the sister’s son of Dasondha Singh, was taken in adoption by Dasondha Singh; after the adoption, Dasondha Singh treated the plaintiff as his son and the plaintiff treated him as his father; they used to live together Dasondha Singh performed marriage of the plaintiff and that at the time of the adoption, plaintiff was put into lap of Dasondha Singh by his natural parents and thereafter, adoption deed (Ex.P3) was executed. They further stated that after the death of Dasondha Singh, his bhog ceremony was performed by the plaintiff Gurbax Singh. On the basis of the aforesaid evidence, available on the record, and the adoption deed (Ex.P2), learned counsel for the plaintiff submitted that adoption of the plaintiff by Dasondha Singh was not a mere appointment of a legal heir, but actually, he was adopted by Dasondha Singh as a son in a formal manner, though by following customary form. Such an adoption, according to learned counsel for the plaintiff, confers on the adopted son the right of succession in the adoptive father’s family. Thus, after the adoption, the plaintiff was completely transplanted in the family of the adoptive father Dasondha Singh and was competent to challenge the alienation made by his adoptive father. Learned counsel for the plaintiff submitted that after the adoption, the plaintiff became a coparcener with Dasondha Singh. According to him, it is well settled that after the adoption, the adopted son becomes member of the family of the adoptive father. Soon after the adoption, the adopted son becomes the coparcener and has the share in the coparcenary property. He further submitted that if a sole surviving coparcener adopts a person, then his status as sole surviving coparcener ceases and he constitutes the coparcenary along with his adopted son. After adoption, he ceases to be the sole surviving coparcener and is not entitled to deal with the coparcenary property as his separate property. In this regard, learned counsel for the plaintiff referred to the decision of the Andhra Pradesh High Court in Jupudi Venkata Vijaya Bhaskar v. Jypudi Kesavo Rao (died) and Ors., A.I.R. 1994 Andhra Pradesh 134.
18. On the basis of the aforesaid legal position, learned counsel for the plaintiff submitted that a finding of fact has been recorded by both the Courts below, in which it was held that the plaintiff was validly adopted as his son by Dasondha Singh and after such adoption, he became member of the coparcenary along with Dasondha Singh. It was found that being a coparcener in the property in question, the plaintiff was having locus standi to challenge the alienation made by Dasondha Singh during his life time by way of two collusive decrees as well as by way of Will in question. Learned counsel for the plaintiff further submitted that under the customary law of Punjab, a male proprietor cannot dispose of the ancestral immovable property in his hand, except for legal necessity or as an act of good management. Such custom is still there in Punjab, in spite of coming into force the Succession Act. According to him, the first appellate court has gravely erred in law while holding that by passing of the Punjab Custom (Power to Contest) Amendment Act, 1973, such custom was abolished. What the amendment Act, 1973 has done was that the power to contest an alienation made contrary to the custom could not be challenged. Learned counsel further submitted that even under the Hindu Law, Dasondha Singh could not have dispose of his ancestral property by way of Will in favour of the defendant even to the extent of his half share, except for legal necessity or as an act of good management. He submitted that even after coming into force the Succession Act, the rule of custom regarding alienation has not been effected. In support of his contention, he relied upon a decision of the Full Bench of this Court in Joginder Singh Kundah Singh v. Kehar Singh and Ors., (1965)67 P.L.R. 700 (F.B.). Therefore, in view of Section 30 of the Succession Act, Dasondha Singh was not competent to bequeath his undivided share in the coparcenary property. Thus, according to learned counsel for the plaintiff, the finding recorded by the first appellate court that after the amendment made in the Custom Act, a male proprietor is competent to alienate his undivided share in the coparcenary in view of Section 30 of the Succession Act is wrong. Learned counsel for the plaintiff, while relying upon Full Bench decision of this Court in Manohar Lal and Anr. v. Dewan Chand and Ors., (1985-1)87 P.L.R. 689 (F.B.), has submitted that the sale of the coparcenary property, made by a coparcener, will not be binding on the other coparcener even qua the share of the vendor if the same was made without the consent of other coparceners and legal necessity. He further submitted that in view of the said principle, the alienation of the coparcenary property made by Dasondha Singh in favour of the defendant by a Will was not legal and binding on the plaintiff.
19. In this case, the substantial questions of law for consideration are as under: –
(i) Whether the adoption of the plaintiff made by Dasondha Singh vide adoption deed (Ex.P3) in the year 1946 was a customary formal adoption or was an adoption by way of customary appointment of a legal heir?
(ii) Whether the plaintiff was having locus standi and was competent to challenge the alienation made by his adoptive father Dasondha Singh of the coparcenary property in which the plaintiff was having an interest being his adopted son?
(iii) Whether Dasondha Singh being a coparcener alongwith plaintiff was competent to alienate his undivided share in the coparcenary property in view of Section 30 of the Succession Act?
20. Under the customary law of Punjab, there was distinction between customary formal adoption and adoption by way of customary appointment of heirs. Under the Hindu law or in case of customary formal adoption, the adoption is primarily a religious act intended to confer spiritual benefit on the adopter, and under the Customary Law in Punjab, adoption was a secular act the object of which was to appoint a legal heir. The formal adoption by customary method confers on the adopted son the status of a son in the adoptive family with a right of collateral succession in the family of the adoptive father. The formal adoption may be made in accordance with custom and by observing the customary forms. It is not necessary to comply with the rules of Hindu law in the matter of ritual or otherwise. In case of customary adoption the adoption was no more than a mere appointment of a legal heir creating a personal relationship between the adoptive father and the appointed heir only. There is no tic 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. He acquires the right to succeed the property which his adoptive father leaves for him at the time of his death. He has no right to challenge any alienation made by the adoptive father during his life time. The status of the appointed heir is, thus, materially different from that of a son adopted under the Hindu taw or formal adoption under custom.
21. 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. This distinction has been clearly recognised by the Hon’ble Supreme Court in Kehar Singh v. Dewan Singh, A.I.R. 1966 S.C. 1555 wherein it was held as under:-
“A customary adoption -in the Punjab is ordinarily no more than a mere appointment of an heir creating a personal relationship between the adoptive father and the appointed heir only, see Mela Singh v. Gurdas, I.L.R. 3 Lah. 362;A.I.R. 1922 Lah. 433 (F.B.). There is no lie 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 Article 49 of Rattigan’s Digest of Customary Law, 13th Edn. D.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 forma! adoption has taken place, inasmuch as the relationship established between him and the appointer is a purely personal one.”
The rule in Article 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, (1949)51 P.L.R. 119, Waryaman v. Kanshi Ram. I.L.R. 3 Lah. I7;(A.I.R. 1922 Lah. 105).”
Further it was also held in Mukand Singh v. Wazir Singh, (1972)4 S.C.C. 178 that a Hindu governed by customary law in Punjab was not disentitled to make a formal adoption according to customary adoption or according to Hindu rites and ceremonies.
22. In this case, both the Courts below have held that the plaintiff was proved to be adopted son of Dasondha Sigh. This is a pure finding of fact. The documentary as well as the oral evidence, available on record, clearly indicates that adoption of the plaintiff made by Dasondha Singh was formal adoption in a customary form. After the adoption, the plaintiff was being treated by Dasondha Singh as his son They were living jointly. Marriage of the plaintiff Gurbax Singh was also performed by Dasondha Singh. In adoption deed (Ex.P3) it is recited that Dasondha Singh was issueless and he had adopted Gurbax Singh plaintiff who was living with him since his childhood. He was being brought up by him. In the voter list (Ex.P2), father’s name of the plaintiff was recorded as Dasondha Singh. The plaintiff used to serve Dasondha Singh and performed his last rites on his death. Further the defendant has neither pleaded nor proved that adoption of the plaintiff was nothing but an appointment of a legal heir under the Customary Law. Merely because the plaintiff was adopted by Dasondha Singh by observing customary method does not mean that the said adoption was customary adoption in a sense as mere appointment of a legal heir. Thus, after the adoption of the plaintiff by Dasondha Singh, he became member of the family of the adoptive father like a natural son. As such, I do not find any force in the contention of learned counsel for the defendant that adoption of the plaintiff by Dasondha Singh was a mere appointment of a legal heir, which did not confer him any right to challenge the alienation made by Dasondha Sigh during his lifetime. The adopted son has a share in the joint Hindu family. Hence, he can challenge the alienation made by his adoptive father. The Karnataka High Court, in Narasimhaiah Setty v. Govindappa Naidu and Ors., 1982 All India Hindu Law Reporter 248 has held that it is well recognised principle that an adopted son also becomes a coparcener as if he was a natural born son of the adoptive father. This would always be the position whether the adoptive father is the sole surviving coparcener or a member thereof. These concepts of Hindu Law. have never been in doubt. There is also another accepted principle. So far as the sole surviving coparcener is concerned, he holds the family property as his separate property, but it would be subject to its becoming at any moment coparcenary property when he has male issue or when an adoption is made by or to him or to a predeceased coparcener in the family. Similarly, in Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao (died) and Ors. (supra), it was held by the Andhra Pradesh High Court that a sole surviving coparcener who was entitled to dispose of coparcenary property as his separate property, cannot alienate the joint family property as his separate property after making an adoption, the adopted son becomes member of the coparcenary and the adopter ceases to be a sole surviving coparcener. Thus, I do not find any force in the contention of learned counsel for the defendant that in the instant case, the plaintiff was having no legal right to challenge any alienation made by Dasondha Singh.
23. After commencement of the Hindu Adoptions & Maintenance Act, any custom or usage or any rule or interpretation of Hindu Law in force immediately before commencement of the said Act ceases to have its effect from the commencement of the said Act for which the provision has been made in the said Act. Thus, after commencement of the Hindu Adoptions & Maintenance Act, there is no scope for customary adoption by a Hindu Section 30 of the Hindu Adoptions & Maintenance Act provides for the effect of any adoption made before the commencement of this Act. This provision came for consideration before the Apex Court in Daniraiji Vrajlalji, Junagadh v. Maharaj Shri Chandraprabha (supra), wherein it was held that any adoption made prior to coining into force of the Adoptions and Maintenance Act under the custom will not be effected by any provision made under the said Act, that is to say, the validity of the adoption made before the commencement of the Act as also its effect will have to be examined and determined with reference to the law or the custom as it stood prior to the coming into force of the Act and not in accordance with it. In light of this judgment, learned counsel for the defendant raised the contention that since the customary adoption in this case was made prior to the commencement of the Hindu Adoptions & Maintenance Act, therefore, its validity and effect has to be considered and determined in accordance with the custom prevalent prior to the commencement of the said Act in which customary adoption was nothing but an appointment of a legal heir, and by such appointment the plaintiff was not transplanted to the family of Dasondha Singh. Thus, according to the learned counsel for the defendant, Sections 4 and 12 of the Adoptions and Maintenance Act will not be applicable and will not improve the status of the plaintiff from a legal heir to a natural born son.
24. Even if this contention of counsel for the defendant is accepted, it will not result into any contrary decision because in this case, I have held that the plaintiff was formally adopted by Dasondha Singh as his son, though in a customary manner and the said adoption was not a mere appointment of a legal heir. It was a formal adoption having the effect of the adopted child becoming member of the family of the adoptive father. Thus, the aforesaid contention of learned counsel for the defendant regrading the effect of Hindu Adoptions & Maintenance Act on the adoption prior to the coming into force of the said Act is also without any consequence.
25. The contention of learned counsel for the defendant regarding the finding recorded by the Courts below on the issue of two collusive decrees is also not sustainable. In this regard, both the Courts below have recorded four findings of facts. Firstly, that the defendant was a stranger to Dasondha Singh and there was no question of any family settlement between Dasondha Singh and the defendant. Secondly it was held that the defendant has failed to prove any family settlement between him and Dasondha Singh regarding properly in question. Thirdly, there did not exist any pre-existing right of the defendant in the property and only by those decrees right in presentee were created. Fourthly, that the two decrees in question were not registered and un-disputedly, property worth more than Rs. 100/- was transferred by those decrees. In these circumstances and in view of the law laid down by the Hon’ble Apex Court in Bhoop Singh v. Ram Sarup Singh, (1996-1)112 P.L.R. 559 (S.C.), in my opinion both the courts below have rightly held that those decrees were having no legal force and were not binding on the rights of the plaintiff.
26. Now, the question left for consideration is whether Dasondha Singh being a coparcener alongwith plaintiff was competent to alienate his undivided share in the coparcenary properly in view of Section 30 of the Succession Act ? Both the Courts below have concurrently held that the properties in question in the hands of Dasondha Singh were ancestral and coparcenary property. It was also held that the Will dated 23.7.1971 was duly executed by Dasondha Singh in favour of the defendant. Regarding the validity of the Will the trial Court has held that Dasondha Singh was not entitled to execute a Will in respect of the coparcenary property for the purpose of disinheriting his adopted son and any such alienation made by a coparcener could have been challenged by the adopted son. In this regard, the trial Court relied upon judgment of this Court in Amar Singh and Anr. v. Bikar Singh, (1957)59 P.L.R. 146 wherein it was held that under the custom an adopted son has a right to challenge the (sic) made by his adoptive father by way of will as such will would deprive the adopted son to succeed to the property of his adoptive father, Further, the trial Court also relied upon a Division Bench judgment of this Court in Kaur Singh Gajjan Singh v. Jaggar Singh Kehar Singh, A.I.R. 1961 Punjab 489, wherein it was held that a Hindu male holder governed by Punjab customary law is not free to dispose of his ancestral immovable property. The unauthorised alienations of ancestral property are subject to control by the collaterals. But only collaterals of fifth degree of the alienor can avoid the same by means of a suit under the provision of Custom Act. It was also held that a Hindu male holder governed by the Punjab Customary law can not will away his ancestral property even under Section 30 of the Succession Act. Therefore, his reversioner has no right to question such alienation.
27. The first appellate court modified the said finding of the trial court and held that after coming into force the Punjab Custom (Power to Contest) Amendment Act, 1973, there is no restriction on the male proprietor, who was previously governed by Punjab customary law to dispose of the property by way of Will in accordance with Section 30 of the Succession Act. Since in view of Explanation to Section 30 of the Succession Act, Dasondha Singh was competent to will away his property to the extent of his undivided share in the coparcenary property, therefore his will was held to be valid to the extent of his half share in the properties in dispute. Accordingly suit of the plaintiff to the extent of half share in the properties in dispute was decreed.
28. The said finding of the first appellate court has been challenged by the plaintiff in Regular Second Appeal No. 2384 of 1985. The contention of learned counsel for the plaintiff is that under the customary law in Punjab, a male proprietor cannot dispose of the ancestral immovable property in his hand, except for legal necessity or as an act of good management. Such custom is still there is Punjab inspite of coming into force the Succession Act. Even under the Hindu Law, a coparcener is not competent to will away the coparcenery property even to the extent of his own share. The said customary law as well as the principle of Hindu law have not been abolished by the Succession Act and the finding recorded by the first appellate court that Dasondha Singh was competent to will away his undivided share in view of Section 30 of the Succession Act is, thus not sustainable.
29. I do not find any force in the aforesaid contention of learned counsel for the plaintiff. In my opinion, the conclusion drawn by the learned first appellate court, in this regard is right, though the reasoning recorded by the first appellate court that after coming into force the Punjab Custom (Power to Contest) Amendment Act, 1973 the custom has been abolished is not correct. By this amendment only the power to contest the alienation made contrary to the custom by a reversioner has been abrogated. But after coming into force the Succession Act, all Hindus who were being governed by rules of customary law or principle of Hindu law, are governed by the Hindu law and Succession Act in the matter of succession to the property. It has been held by a Full Bench of this Court in Pritam Singh v. The Assistant Cotteter, (1976)78 P.L.R. 342 as under:-
“The legal position, therefore, that emerges is that prior to the passing of the Hindu Succession Act, 1956 where the parties were Hindus the Hindu law would apply in the first instance in matters regarding succession, and whosoever asserted a custom at variance with Hindu law must prove it and if he failed to do so then the rule of decision must be personal law of parties. The Hindu Succession Act came into force from June 17, 1956, and its Section 4 abrogated any text, rule or interpretation on Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act with respect to any matters for which provision is made in this Act. By virtue of this Section 4 the Punjab Agricultural custom so far it was applicable to Hindus in matters of succession has been completely abrogated and now no Hindu is governed by rules of customary law in matters of succession to property. After the passing of the Hindu Succession Act, all the Hindus as defined in Section 2 of that Act, in matters of succession are governed by Hindu law and the provisions of the Hindu Succession Act, 1956. The Hindu Succession Act has not abolished joint Hindu family and the joint Hindu family property and it does not interfere with the special rights of those who are members of a Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of that Act. After the coming into force of this Act, all Hindus who are previously governed by rules of customary law in the matters of succession, like the other Hindus, form joint and undivided Hindu families including Mitakshara coparcenary, and the sons, grandsons and great grandsons, of the holder of the joint or coparcenary property for the time being, acquire interest therein by birth.”
Thus, the Succession Act supercedes custom and the principle of Hindu law only to the extent to which the provisions have been made in the said Act. Under Hindu law, a Hindu could not bequeath his ancestral property by Will. However, now that rule has been considerably modified vide Explanation to Section 30 of the Succession Act, which now permits a member of Mitakshara coparcenary to dispose of by Will his undivided interest in the coparcenary property notwithstanding any other rules of law to the contrary. The first appellate court has rightly held that the Division Bench judgment passed by this Court in Kaur Singh Gajjan Singh v. Jaggar Singh Kehar Singh (supra) is not applicable as far as the present case is concerned and the said judgment was given in light of the provisions of the Custom Act, which was subsequently amended by the provisions of Punjab Custom (Power to Contest) Amendment Act, 1973. In view of the said, it cannot be said that after the amendment made in the custom Act, a coparcener cannot will away his undivided share in the coparcenary property in view of Section 30 of the Succession Act. The Full Bench judgment of this Court in Manohar Lal’s case (supra), cited by learned counsel for the plaintiff is not applicable in case of a Will. The said document pertains to the sale of the coparcenary property made by a coparcener. Such sale is not protected or covered to the extent of the share of the coparcener under Section 30 of the Succession Act. Thus, I do not find any illegality or infirmity in the finding recorded by the first appellate court in this regard.
30. In view of the aforesaid discussion, I do on find any merit in either of the appeals and the same are hereby dismissed with no order as to costs.