{"id":161607,"date":"1963-02-12T00:00:00","date_gmt":"1963-02-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arjan-singh-and-ors-vs-narain-singh-ors-on-12-february-1963"},"modified":"2018-06-02T19:24:35","modified_gmt":"2018-06-02T13:54:35","slug":"arjan-singh-and-ors-vs-narain-singh-ors-on-12-february-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arjan-singh-and-ors-vs-narain-singh-ors-on-12-february-1963","title":{"rendered":"Arjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Arjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963<\/div>\n
Bench: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta, J.C. Shah<\/div>\n
           PETITIONER:\nARJAN SINGH AND ORS.\n\n\tVs.\n\nRESPONDENT:\nNARAIN SINGH & ORS.\n\nDATE OF JUDGMENT:\n12\/02\/1963\n\nBENCH:\n\n\nACT:\nCustomary\tLaw-Jats  of  Tehsil  Zira   of\t  Ferozepore\nDistrict--Adoption--Formal  adoption in Hindu Law  and\tcus-\ntomary\t appointment  of  an   heir--Difference--Effect\t  of\nappointment of heir on connection with natural family.\n\n\n\nHEADNOTE:\nHarnam\tSingh died leaving behind two daughters.  They\talso\ndied without leaving any issue surviving them.\tThe  Revenue\nauthorities  ordered that the entire estate of Harnam  Singh\nbe entered in the revenue records in the names of the\ndefendants.\nThe plaintiffs filed a suit for possession of the estate  of\nHarnam Singh.  Their contention was that notwithstanding the\nadoption of Ghuda Singh, their predecessor, by his  maternal\nuncle, they as descendants of Ghuda Singh were not  excluded\nfrom  inheritance to the estate of a member in\tthe  natural\nfamily\tof  Ghuda  Singh.  It was also\tcontended  that\t the\nfamily\tof the plaintiffs and Harnam Singh was\tgoverned  by\nZamindara  Riwaj-i-am  by virtue of which a son\t adopted  in\nanother\t family and his decendants did not lose their  right\nto  inherit  in the natural family because by  the  adoption\naccording  to the custom of the community, the\tadopted\t son\ndid  not  completely sever his connection with\this  natural\nfamily.\nThe  contention\t of defendants-appellants was  that  in\t the\nDistrict of Ferozeporc, every adoption in a Hindu family was\nformal\tand according to the Riwaj-i-am of the District,  an\nadopted\t son was excluded from the right to inherit  in\t his\nnatural family.\t Consequently, Ghuda Singh, who was  adopted\nby  Bhan  Singh, could not inherit the\testate\tbecause\t his\nadoption  operated  as complete severance from\tthe  natural\nfamily.\nThe  suit  was dismissed by the Subordinate  judge  and\t his\norder  was  confirmed by the District judge.   However,\t the\nHigh  Court  set aside the order of the District  judge\t and\nheld that the record disclosed no evidence that the adoption\nof Ghuda Singh was formal and hence it must be presumed that\nthe adoption was a customary appointment of an heir and\t not\na  formal -adoption under the Hindu Law.  It was  also\theld\nthat  there  was  overwhelming authority in  favour  of\t the\nproposition  that  by reason of a  customary  adoption,\t the\nadopted\n20\nson and his descendants were not excluded from the right  to\ninherit\t  to  collaterals  in  the  natural   family.\t The\nplaintiffs as grandsons in the male line of Ghuda Singh were\nentitled to inherit the estate.\t The appellants came to this\nCourt by a certificate of fitness granted by High Court.\nHeld, that the view of the High Court was correct.  A person\nadopted according to the customs of the community, i.e.\t who\nis  appointed as a heir to inherit the property of a  person\noutside the family, does not. by virtue of such appointment,\nlose  his right to inherit in his natural family except\t the\nright  to  inherit the property of his natural\tfather\twhen\nthere are natural brothers.  The natural brothers would take\nthe property to the exclusion of such an adopted son and his\ndefendants.\nDaya  Ram v. Sohel Singh (1906) P. R. No. 110 (F.B.),  Abdul\nHussain\t Khan  v.  Bibi Sona Dero 1917) L.R. 45\t I  .A.\t 10,\nVaishno\t Ditti v. Rameshri (1928) L. R. 55 I. A.  407,\tMela\nSingh v. Gurdas, (1922) 1. L. R. 3 Lah. 362, Jagat Singh  v.\nIshar Singh    30) I. L. R. 11 Lah. 615, Kanshi Ram v. Situ\n(1934) I. L.   R.16 Lah. 214, Rahmat v. Ziledar (1945) 1. L.\nR.26 Lah. 504  and  Jai Kapur v. Sher Singh,<\/a> [1960] 3 S.  C.\nR.975, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 223 &\t 224
\nof 1961.\n<\/p>\n
Appeals\t from the judgment and decree dated April 25,  1956.
\nof  the\t Punjab High Court in Civil Regular  Second  Appeals
\nNos. 158 and 159 of 1949 respectively.\n<\/p>\n
N.   S. Bindra and K. L. Mehta, for the appellants.
\nGurbachan  Singh,  Harbans Singh and M. L.  Kapur,  for\t the
\nrespondents (in C. A. No. 224\/61).\n<\/p>\n
1963.  February 12.  The judgment of the court was delivered
\nby
\nSHAH  J.  These appeal arise  out of two suits\trelating  to
\ncertian\t agricultural  lands situate in\t village  Umri\tAna,
\ntehsil Zira District Ferozepore in the Punjab.\tThe  dispute
\nrelates\t to  the right to inherit the estate  of  one  Hamam
\nSingh who was the last male holder.  The -disputing  parties
\nare  descended\tfrom  Sahib  Singh’  as\t disclosed  by\t the
\nfollowing genealogy
\n21<\/span>
\n\t\t\t Sahib Singh
\n\t\t\t     |
\n  |—————————————————–|
\n  | Hamir Singh\t\t\t\t\tWazir Singh
\n\t\t\t\t\t\t\t|
\n\t\t\t\t\t\t Attar Singh
\n   |————–|————|\t\t\t|
\n Chuhar Singh\tGhuda Singh  Kahan Singh\t\t|
\n   |\t\t |\t\t|\t       Mangal Singh
\n   |\t\t |\t\t|
\nDaughter    |—————-|\t|  |———————|
\nMst. Bishno  Ramji Singh Dasau- |  Tehl Singh\t Arjan Singh
\n(married)\t |\t ndha\t|  (Defdt.2)\t  (Defdt.1)
\nSingh  |\t\t Singh\t|
\nagain)\t\t\t\t——|
\n\t\t |\tNarain Singh  |
\n\t\t |\t  (Pltff.)    |
\n|—————-|————–|     |
\nBakhshish\tAjaib\t Mukhtar      |
\n Singh\t\tSingh\t  Singh\t      |
\n(Pltff.)\t(Pltff.)  (Pltff.)    |
\n\t\t\t\t      |\n<\/p>\n
\t\t    ———————————|
\n\t\t    |\t\t\t\t     |
\n\t\t    Roor Singh\t\t\tBhola Singh
\n\t\t    |
\n\t\t    |
\n\t\tHarman Singh
\n\t\t    |
\n\t\t    |
\n   |————————————–|
\n   |\t\t\t\t\t  |
\n Mst. Tejo\t\t\t       Mst. Gejo
\n  (Died without issue)\t\t      (died without issue)
\n22<\/span>
\nHarnam\tSingh  grandson\t of Kahan  Singh  died\tleaving\t him
\nsurviving  two\tdaughters Mst.\tTejo and Mst.  Gejo  and  no
\nmale  lineal  descendant.   The\t property  of  Harnam  Singh
\ndevolved  upon\this two daughters in equal shares.   On\t the
\ndeath  of  Mst.\t Tejo without issue the\t entire\t estate\t was
\nentered\t  in  the  name\t of  Mst.   Gejo  by   the   revenue
\nauthorities.   Mst.  Gejo also died in 1942 without  leaving
\nany  issue surviving her.  By order dated September 6,\t1945
\nthe  Assistant Collector directed that the entire estate  be
\nentered in the name of\t Narain\t Singh s\/o  Dasaundha  Singh
\nand Bakshish   Singh,  Ajaib  Singh  and Mukhtar Singh\tsons
\nof   Ramji  Singh-who will     hereinafter   be\t    referred
\nto   collectively  as  ‘the  plaintiffs.’    In\t appeal\t  to
\nthe  Collector\tof  Ferozepore the order  of  the  Assistant
\nCollector  was set aside and the estate was directed  to  be
\nentered\t in the names of Tehl Singh and Arjan Singh sons  of
\nMangal Singh–who will hereinafter be referred to  collecti-
\nvely  as ‘the defendants.’ The Commissioner of the  Division
\nconfirmed the order of the Collector.\n<\/p>\n
The  plaintiffs who are the descendants of Ghuda Singh\tthen
\ninstituted  suit No. 9\/1947 in the Court of the\t Subordinate
\njudge,\tZira  for a decree for possession of the  estate  of
\nHarnam\tSingh,\tbarring\t a small area of  8  Kanals  and  11
\nMarlasKhasra  No. 325–which was in their  possession.\t The
\ndefendants  who are the descendants of Wazir Singh in  their
\nturn  commenced an action (Suit No. 13\/1947) for  possession
\nof Khasra No. 325 against the plaintiffs.  Each side claimed
\ntitle  to  the\testate\tof Harnam  Singh  according  to\t the
\ncustomary  law\tapplicable to the Jats\tresiding  in  tehsil
\nZira,\tDistrict  Ferozepore.\tIt  was\t the  case  of\t the
\nplaintiffs that notwithstanding the adoption of Ghuda  Singh
\nby his maternal uncle Bhan Singh, Ghuda Singh’s\t descendants
\nwere not excluded from inheritance to the estate of a member
\nin the natural family of Ghuda Singh It was submitted by the
\nplaintiffs
\n 23<\/span>
\nthat  the  family  of the plaintiffs and  Harnam  Singh\t was
\ngoverned  by Zamindara Riwaj-i-am (general custom  obtaining
\namongst\t the Zamindars) by virtue of which a son adopted  in
\nanother\t family and his descendants do not lose their  right
\nto inherit in their natural family, because by the  adoption
\naccording  to  the custom of the community the\tadopted\t son
\ndoes  not completely sever his connections with his  natural
\nfamily.\t The defendants, on the other hand, claimed that  in
\nthe District of Ferozepore every adoption in a Hindu  family
\nis ‘formal’ and according to the Riwaj-i-am of the  District
\nan adopted son is excluded from the right to inherit in\t his
\nnatural\t family.  Consequently Ghuda Singh, who was  adopted
\nby Bhan Singh, could not inherit the estate of Hamir  Singh,
\nhis  adoption  operating as a complete\tseverance  from\t the
\nnatural\t family.  The sole dispute between the parties\twas,
\ntherefore, as to the customary law applicable to the  rights
\nof  a son adopted in a jat family residing in  tehsil  Zira,
\nDistrict Ferozepore.\n<\/p>\n
The two suits were consolidated for trial.  The\t Subordinate
\njudge  held  that all ceremonies relating to  adoption\twere
\nperformed  and\tGhuda  Singh ceased to be a  member  of\t the
\nfamily\tof  his\t natural  father  according  to\t the  custom
\nprevailing  in the District and the plaintiffs who were\t the
\ndescendants  of Ghuda Singh could not inherit the estate  of
\nHamir  Singh.\tIn so holding he relied upon the  manual  of
\nRiwaji-i-am of Ferozepore District prepared in 1914,  which,
\nin his view, recorded that when any adoption in the District
\ntakes effect the adopted on adoption son stand\ttransplanted
\nto the family of the adopter.  In appeal the District Court,
\nFerozepore  held  that\tin the case of\tJats  of  Ferozepore
\nDistrict  by special custom prevailing in the District,\t the
\nadopted\t son  bad the right to inherit collaterally  in\t the
\nfamily\tof  his adoptive father only and could\tnot  inherit
\ncollaterally  in  his natural father’s\tfamily.\t  In  second
\nappeal the High Court of Punjab set aside the decree passed
\n24<\/span>
\nby  the District Court.\t In the view- of the High Court\t the
\nrecord\tdisclosed  no evidence that the\t adoption  of  Ghuda
\nSingh  made by his maternal uncle Bhan Singh was formal\t and
\nin the absence of any such evidence it must be presumed that
\nthe adoption was a customary appointment of an heir and\t not
\na  formal  adoption under the Hindu Law and that  there\t was
\noverwhelming authority in favour of the proposition that  by
\nreason\tof  a  customary adoption the adopted  son  and\t his
\ndescendants  were not excluded from the right to inherit  to
\ncollaterals   in  the  natural\tfamily.\t  The\tHigh   Court
\naccordingly  held that the plaintiffs, as grandsons  in\t the
\nmale  line  of\tGhuda Singh, were entitled  to\tinherit\t the
\nestate of Hamir Singh.\tWith certificate of fitness  granted
\nby  the High Court, these two appeals are preferred  by\t the
\ndefendants.\n<\/p>\n
It  is common ground that Ghuda Singh was adopted some\ttime
\nbefore 1856 by Bhan Singh, his maternal uncle.\tThe  dispute
\nbetween\t the  parties  has to be resolved  by  applying\t the
\ncustomary law applicable to the parties, because s. 5 of the
\nPunjab\tLaws  Act, 1872 which governs the  parties  provides
\nthat :\n<\/p>\n
“In  questions\tregarding succession,  special\tproperty  of
\nfemales,  betrothal and marriage, divorce, dower,  adoption,
\nguardianship,  minority, bastardy, family relations,  wills,
\nlegacies, gifts, partition, or any religious usage or insti-
\ntution, the rule of decision shall be-\n<\/p>\n
(a)  any  custom applicable to the parties concerned,  which\n<\/p>\n
-is not contrary to justice, equity or good conscience,\t and
\nhas  not  been\tby this or any other  enactment\t altered  or
\nabolished,  and\t has  not been declared to be  void  by\t any
\ncompetent authority
\n 25<\/span>\n<\/p>\n
(b)  The  Muhammadan  Law  in cases where  the\tparties\t are
\nMuhammadans,  and the Hindu Law, in cases where the  parties
\nare  Hindus, except in so far as such “law has been  altered
\nor abolished by legislative enactment, or is opposed to\t the
\nprovisions  of\tthis Act, or has been modified by  any\tsuch
\ncustom as is above referred to.”\n<\/p>\n
In  Daya Ram v. Sohel Singh (1), Rober son, J., (at P.\t410)
\nin dealing with the true effect of s. 5 observed :
\n“In all cases it appears to me under this Act, it lies\tupon
\nthe  person  asserting\tthat  he is ruled  in  regard  to  a
\nparticular  matter  by\tcustom,\t to  prove  that  he  is  so
\ngoverned,  and\tnot by personal law, and further,  to  prove
\nwhat  the  particular custom is.  There\t is  no\t presumption
\ncreated by the clause in favour of custom; on the  contrary,
\nit  is only when the custom is established that it is to  be
\nthe  rule of decision.\tThe Legislature did not show  itself
\nenamoured  of custom rather than law, nor does it  show\t any
\ntendency to extend the “Principles’ of custom to any  matter
\nto  which a rule of custom is not clearly proved  to  apply.
\nIt  is\tnot the spirit of customary law, nor any  theory  of
\ncustom\tor  deductions from other customs which is to  be  a
\nrule  of decisions, but only ‘any custom applicable  to\t the
\nparties\t concerned which is not……… and it\t “therefore’
\nappears to me clear that when either party to a suit sets up
\n‘custom’  as a rule of decision, it lies upon him  to  prove
\nthe  custom  which he seeks to apply; if he fails to  do  so
\nclause\t(b) of s. 5 of the Punjab Laws Act applies, and\t the
\nrule  of  decision must be the personal law of\tthe  parties
\nsubject to the other provisions of the clause.”
\nThis view was affirmed by the judicial Committee
\n(1)  (1906) P.R. No. 110 (F.B.).\n<\/p>\n
26<\/span><\/p>\n
of the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero
\n(1).   In  Vaishno  Ditti v.  Rameshri\t(2),  the  ,Judicial
\nCommittee observed :\n<\/p>\n
“x  x  x x their Lordships are of opinion  that\t in  putting
\ncustom\tin the forefront, as the rule of succession,  whilst
\nleaving the particular custom to be established, as it nece-
\nssarily\t must be, the Legislature intended to recognize\t the
\nfact  that in this part of India inheritance and  the  other
\nmatters mentioned in the section are largely regulated by  a
\nvariety\t of customs which depart from the ordinary rules  of
\nHindu and Mohamedan law.”\n<\/p>\n
The pleadings also disclose an unanimity that the rights  of
\nthe  parties  have  to\tbe adjudged  in\t the  light  of\t the
\ncustomary law applicable and not by the rules of Hindu\tLaw.
\nThe  relevant  general\tcustom which is\t applicable  in\t the
\nmatter\tof adoption is to be found in Rattigan’s  Digest  of
\nCivil law for the Punjab, 13. Edn. p. 572
\nArticle 48
\n“An heir appointed in the manner above described  ordinarily
\ndoes  not thereby lose his right to succeed to\tproperty  in
\nhis  natural  family, as against collaterals, but  does\t not
\nsucceed in the presence of his natural brothers.”
\nArticle 49 :\n<\/p>\n
“Nor,  on the other hand, does the heir acquire a  right  to
\nsucceed\t to  the  collateral relatives\tof  the\t person\t who
\nappoints  him,\twhere no formal adoption  has  taken  place,
\ninasmuch as the relationship established between him and the
\nappointer is a purely personal one.”\n<\/p>\n
This  adoption, according to Rattigan is irrevocable and  an
\nadopted son cannot relinquish his status.
\n(1)  (1917) L.R. 45.  I.A. 10.\t 2) (1928) LR, 55 I.A.\t107,\n<\/p>\n
421.
\n 27<\/span>
\nArticle\t 52  sets  out the rights of the  adopted  son.\t  It
\nstates :\n<\/p>\n
“The appointed heir succeeds to all the rights and interests
\nheld or enjoyed by the appointer and, semble, would  succeed
\nequally with a natural son subsequently born.”
\nThere  is  a long course of decisions in the High  Court  of
\nLahore\tand  the High Court of Punjab in which it  has\tbeen
\nheld  that the relationship between the appointed  heir\t and
\nthe appointer which is called adoption is purely a  personal
\none  and  resembles the Kritrima form of adoption  of  Hindu
\nLaw: Mela Singh v. Gurdas (1), Sir Shadi Lal, C.J.  observed
\nin  dealing with the effect of a customary adoption  in\t the
\nPunjab :\n<\/p>\n
“The tie of kinship with the natural family is not dissolved
\nand  the fiction of blood relationship with the\t members  of
\nthe  new  family has no application to the  appointed  heir.
\nThe  relationship established between the appointer and\t the
\nappointee,  is\ta purely personal one and  does\t not  extend
\nbeyond the contracting parties on either side.”
\nSimilarly  in  Jagat Singh v. Ishar Singh (2), it  was\theld
\nthat the reservation as to the adopted son not succeeding in
\nthe  presence of his brothers refers only to his  succession
\nto  his\t natural  father  but does not\tapply  to  cases  of
\ncollateral  succession in his natural family A similar\tview
\nwas  expressed\tin  Kanshi Ram V. Situ (3),  and  Rahmat  v.
\nZiledar (4).  In the last mentioned case it was stated :
\n“Under\tthe general custom of the province a person  who  is
\nappointed as an heir to a third person does not thereby lose
\nhis right to succeed to the property of his natural  father.
\nBut
\n(1)(1922)I.L.R.3 Lah.362(F.B.) (2)(1930)1.L.R.II Lah.615.
\n(3) (1934)   16 Lah. 214.  (4) (1945) I.L.R. 26 Lab. 540.\n<\/p>\n
28<\/span><\/p>\n
the appointed heir and his lineal- descendants have no right
\nto  succeed to the property of the appointed heir’s  natural
\nfather\tagainst\t the other sons of the\tnatural\t father\t and
\ntheir  descendants.  The appointed heir can succeed  to\t the
\nproperty of his natural father when the only other  claimant
\nis the collateral heir of the latter.”\n<\/p>\n
But it is urged on behalf of the defendants that the general
\ncustom\tapplicable to the Punjab as recorded by Rattigan  is
\nshown  to be superseded by proof of a special custom of\t the
\nDistrict  recorded in the Riwaj-i-am of Ferozepore  District
\nprepared  by  Mr.  Currie at the  settlement  of  1914,\t and
\nreliance is placed upon answers to Questions 76 and 77 which
\ndeal  with  the effect of adoption.  The Questions  and\t the
\nAnswers recorded are :\n<\/p>\n
“Question  76–Does  an\t adopted son  retain  his  right  to
\ninherit\t from his natural father ? Can he inherit  from\t his
\nnatural father if the natural father dies without other sons
\n?\n<\/p>\n
Answer-All  agree that the adopted son cannot  inherit\tfrom
\nhis  natural father, except as for as regards such share  of
\nthe  property  as  would come to his adoptive  father  as  a
\ncollateral.   Sodhis ‘however’ say that he can\tinherit\t his
\nnatural\t  father’s  estate  if\tthe  latter  has   no\tmale
\ndescendants,  while the Nipale say the adopted son  inherits
\nfrom both fathers.\n<\/p>\n
Question 77-Describe the rights of an adopted son to inherit
\nfrom  his  adoptive  father.   What is\tthe  effect  of\t the
\nsubsequent birth of legitimate sons to the adoptive father ?
\nWill  the  adopted  son take equal shares  with\t them  ?  If
\nnatural legitimate sons be born subsequently to the adoption
\nwhere the chundawand system
\n 29<\/span>
\nof  inheritance prevails, how will the share of the  adopted
\nson, whose tribe differs from that of the adoptive  father,’
\ninherit from him ? Does an adopted son retain his own got or
\ntake that of his adoptive father ?\n<\/p>\n
Answer-An  adopted  son\t has  exactly  the  same  rights  of
\ninheritance from his adoptive father as a natural legitimate
\nson.   The inheritance would only be by chundawand, if\tthat
\nwas the prevalent rule of the family.\n<\/p>\n
The  Nipals, Rajputs, Arains, Moghals, Sayyads, Gujjars\t and
\nMuhammadan  Jats  state\t that if the adopted  son  is  of  a
\ndifferent  got\the takes the got of his\t adoptive  father  ;
\nwhile if he is of a different tribe, he cannot inherit.
\nAs it is, as a rule aged men without hope of sons who adopt,
\ncases  of  the birth of legitimate sons after  adoption\t has
\ntaken place must be rare.”\n<\/p>\n
When there is conflict between the general custom stated  in
\nRattigan’s Digest of Customary Law and the Riwaj-i-am  which
\napplies to a particular area it has been held by this  Court
\nthat the latter prevails.  In Jai Kapur\t v. Sher Singh<\/a>\t(1),
\nit was observed
\n“There is, therefore, an initial presumption of\t correctness
\nas regards the entries in the Riwaj-i-am and when the custom
\nas  recorded  in  the Riwaj-i-am is  in\t conflict  with\t the
\ngeneral\t  custom  as  recorded\tin  Rattigan’s\t Digest\t  or
\nascertained otherwise, the entries in the Riwaj-i-am  should
\nordinarily  prevail  except that as was pointed out  by\t the
\nJudicial Committee in Mt.  Subhani v. Nawab [A.I.R. 1941
\n(1)  [1960] 3 S. C.,R, 975. 979.\n<\/p>\n
30<\/span><\/p>\n
(P.  C.)  21],\t“that  where, as in the\t present  case,\t the
\nRiwaj-i-am  affects adversely the rights of females who\t had
\nno  opportunity\t whatever of appearing\tbefore\tthe  revenue
\nauthorities,  the presumption would be weak, and only a\t few
\ninstances would suffice to rebut it.”\n<\/p>\n
Therefore  when\t there is a conflict between the  record  of
\ncustom\tmade in Rattigan’s Digest of Customary Law  and\t the
\nlocal  Riwaj-i-am, prima facie, the latter would prevail  to
\nthe  extent  of the inconsistency, and it would be  for\t the
\nperson pleading a ‘custom or incident thereof different from
\nthe  custom recorded in the Rewaj-i-am to prove such  custom
\nor incident.  Attention must, therefore, be directed to\t the
\nquestion whether there is in fact Any inconsistency between’
\nthe  custom recorded in Rattigan’s Digest of  Customary\t Law
\nand  the  relevant entries in the Riwaj-i-am.\tThe  general
\ncustom recorded in Rattigan’s Digest is apparently this :  a
\nperson adopted according to the custom of the community i.e.
\nwho  is appointed as an heir to’ inherit the property  of  a
\nperson\toutside\t the  family does not,\tby  virtue  of\tsuch
\nappointment,  lose his right to inherit the property in\t his
\nnatural family except the right to -inherit the property  of
\nhis  natural  father when there are natural  brothers.\t The
\nnatural brothers would take the property to the exclusion of
\nsuch an adopted son and his descendants.  Question 76 in the
\nRiwaj-i-am  primarily refers to the right of an adopted\t son
\nto  retain his right to inherit the property of his  natural
\nfather\tand  the  answer recorded is that  the\tadopted\t son
\ncannot\tinherit the property of the natural  father,  except
\nsuch property as would devolve upon his adoptive father as a
\ncollateral (of the adopted son’s natural father).  It is  to
\nbe  noticed that the question was directed to ascertain\t the
\nright  of  the\tadopted son to inherit\tthe  estate  of\t his
\nnatural father : it did not seek elucidation on the right of
\nthe adopted son to inherit the estate of any collaterals  of
\nthe natural
\n 31<\/span>
\nfather, and the fact that in the answer it was recorded that
\nto  the estate which would devolve upon his adoptive  father
\nas  a  collateral of his natural father he has\ta  right  of
\ninheritance,  strongly\tsupports the view that\tthe  village
\nelders in replying to the question were only concerned\twith
\nthe  right of an adopted son to inherit the property of\t his
\nnatural\t father\t and were not concerned to dilate  upon\t any
\nright  to collateral succession in the natural family.\t The
\nanswer to question 77 also supports this view.When asked  to
\ndescribe the rights of an adopted ‘on to inherit the  estate
\nof  his adoptive father, they replied that the\tadopted\t son
\nhad exactly the same rights of inheritance from his adoptive
\nfather as a natural legitimate son.\n<\/p>\n
Mr.  Bindra appearing on behalf of the defendants  submitted
\nthat  questions\t 76 and 77 were in-tended to  ascertain\t the
\ncustom of the District relating to the rights of the adopted
\nson  in\t his natural family and the family of  his  adoptive
\nfather\tand the answers must be read in that light.  We\t are
\nunable to accept this suggested interpretation of  Questions
\n76  and\t 77  and  the  information  elicited  thereby.\t The
\nRiwaj-i-am  appears  to\t have  been  carefully\tcompiled  by
\nofficers  of  standing and experience and it is\t clear\tthat
\nthey  made a limited enquiry about the rights of an  adopted
\nson to inherit the property of his natural father and of his
\nadoptive father.  There is undoubtedly some conflict between
\nthe  custom recorded in Rattigan’s Digest and the custom  in
\nthe Riwaj-i-am.\t Whereas in Rattigan’s Digest it is recorded
\nthat an heir appointed in another family does not succeed to
\nhis natural father in the presence of his natural  brothers,
\nin  the Riwaj-i-am it is recorded that the adopted son\tdoes
\nnot directly inherit the estate of his natural father in any
\nevent, But we are not concerned with that’ inconsistency  in
\nthis  case.  It is sufficient to observe that in Art. 48  of
\nRattigan’s Digest, it is
\n32<\/span>
\nrecorded that an heir appointed in the manner described\t (an
\nadopted\t son) does not thereby lose his right to succeed  to
\nproperty  in his natural family : and  nothing\tinconsistent
\ntherewith  is shown to be recorded in the Riwaj-i-am of\t the
\nDistrict.\n<\/p>\n
Mr.  Bindra  contended\tthat in any  event  there  is  clear
\nevidence  of  instances\t of devolution of  property  in\t the
\nfamily\tof  the\t parties indicating that a  son\t adopted  in
\nanother family was totally excluded from inheritance in\t the
\nnatural\t family.  Counsel relied upon Ext.  D-5\t an  extract
\nfrom   the  register  of  mutations  relating\tto   certain
\nagricultural  lands  in village Umri Ana.  It  appears\tfrom
\nthat extract that on the death of Hamir Singh the estate was
\nin  the\t first instance entered in the names  of  his  three
\nsons.  But Salig Ram, Patwari of the village, made a  report
\non  May 28, 1884 that Kahan Singh and Chuhar Singh  (two  of
\nthe sons of Hamir Singh) claimed that Ghuda Singh had  never
\nbeen  in possession of the 1\/3rd share of the Khata  entered
\nin  his name and that Ghuda Singh himself had admitted\tthat
\nhe  had no concern with the Khata in question and  that\t his
\nname  should  be  removed.  On\tthat  report  the  Assistant
\nCollector ordered that the lands be entered in the names  of
\nKahan  Singh  and Chuhar Singh and that the  name  of  Ghuda
\nSingh  be  removed  from the mutation  entry  and  that\t the
\nJamabandi papers be altered accordingly.  But this  instance
\nof exclusion of Ghuda Singh from the right to participate in
\nthe estate of his father is consistent with the statement of
\ncustom\trecorded  in  Rattigan’s Digest.   It  is  expressly
\nrecorded in Art. 48 that an appointed heir does not  thereby
\nlose his right to succeed to property in his natural family,
\nas  against  collaterals,  but he does not  succeed  in\t the
\npresence  of his natural brothers.  Kahan Singh\t and  Chuhar
\nSingh  were brothers of Ghuda Singh and Ghuda  Singh  having
\nbeen adopted could not, according to the custom recorded in
\n 33<\/span>
\nRattigan’s  Digest,  inherit  his  fathers  estate  in\t the
\n“presence of his brothers.”\n<\/p>\n
The  other  instance  relied upon by counsel  is  about\t the
\ndevolution  of the estate of Chuhar Singh on the  remarriage
\nof  his\t daughter Bishno.  On the death of Chuhar  Singh  it
\nappears\t that  his property was entered in the name  of\t his
\ndaughter  Bishno,  and\twhen  Bishno  contracted  a   Karewa
\nmarriage according to the custom prevalent in the community,
\nthe estate held by her was entered in the name of Rura Singh
\nand  Bhola  Singh sons of Kahan Singh.\tIn the\tregister  of
\nmutations  Ext.\t R D-1 it is recorded that Ghuda  Singh\t who
\nwas   the  Lambardar  appeared\tbefore\tthe  Tehsildar\t and
\nidentified  Mst.  Bishno and stated that she had  contracted
\nKarewa marriage with jawala Singh and further admitted\tthat
\nRura  Singh  and  Bhola\t Singh were  entitled  to  take\t her
\nproperty,  and\tpursuant  to this  statement  the  Tehsildar
\ndirected that mutation regarding succession be sanctioned in
\nfavour of Rura Singh and Bhola Singh in equal shares.\tThis
\ninstance also, in our judgment, does not support any case of
\ndeparture from the custom recorded in Rattigan’s Digest.  It
\nis clear from the genealogy and the extract of the  register
\nof mutations Ext.  D-1 that the occasion for making an entry
\nof  mutation  was  the remarriage  of  Bishno.\t Mr.  Bindra
\nsubmitted  that according to the custom of the\tcommunity  a
\ndaughter  inheriting  property,\t from her  father  would  on
\nmarriage  be divested of the property, which  would  devolve
\nupon  the collaterals of her father, and according  to\tthat
\ncustom\twhen  on  the remarriage of  Bishno  the  succession
\nopened, Ghuda Singh was on his own admission excluded.\tThis,
\ncounsel submitted, was a stronginstance supporting\t   a
\ndeparture from the custom recorded in\tRattigan’s   Digest.
\nBut  if by virtue of the custom prevalent in the  community,
\nas asserted by Mr. Bindra, on her marriage Bishno would lose
\nher interest in the property of her father, it is
\n34<\/span>
\ndifficult to appreciate how she acquired title or  continued
\ncontrary to that custom, to remain owner of the property  of
\nher  father after her first marriage.  It is clear  that  it
\nwas  not because of her marriage, but on  re-marriage,\tthat
\nthe  property was alleged to have devolved upon\t Rura  Singh
\nand  Bhola Singh.  Why Bishno did not forfeit her  right  to
\nthe property on her marriage and forfeited her right thereto
\non remarriage has been left in obscurity.
\nThe  learned  judges of the High Court held  that  the\tmere
\ncircumstance that Ghuda Singh permitted the estate to go  to
\nthe descendants of Kahan Singh was not by itself  sufficient
\nto  establish  the  custom  set up  by\tthe  defendants\t and
\nuncontested instances were of little value in establishing a
\ncustom.\t They observed that the instance might have received
\nconsiderable  reinforcement if it had been shown that  Ghuda
\nSingh  or any of his descendants had inherited\tcollaterally
\nin  the family of Bhan Singh but except succession of  Ghuda
\nSingh  to  the estate of Bhan Singh which is  in  accordance
\nwith  the general custom no proof of  collateral  succession
\nwas  established, and the single instance of Chuhar  Singh’s
\nestate\tdevolving upon the descendants of Kahan\t Singh\twith
\nthe  consent  of Ghuda Singh does not establish\t any  custom
\ncontrary  to  what is stated in Rattigan’s Digest.   We\t are
\nunable to disagree with the view so expressed.
\nOn  that  view\tof  the case, these  appeals  fail  and\t are
\ndismissed with costs.\n<\/p>\n
\t\t     Appeal dismissed.\n<\/p>\n
 35<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Arjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-161607","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nArjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arjan-singh-and-ors-vs-narain-singh-ors-on-12-february-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arjan Singh And Ors vs Narain Singh & Ors on 12 February, 1963 - 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