Hem Singh and Another v. Harnam Singh and Another.

GHULAM HASAN J.-This is an appeal by special leave granted by the Privy Council . against the judg­ ment and decree dated July 12, 1944, of a Division Bench of the High Court. at Lahore passed in second appeal confirming the dismissal of the appellants' suit ~ concurrently by the trial .Court and the Court of the .. District Judge, Gurdaspur. The two appellants are ·admittedly the first cousins of the respondent, Harnam Singh, and belong to village Gillanwali, Tahsil .Batala, District Gurdaspur. Gurmej Singh, respondent No. 2, is a collateral of Harnam Singh in the 8th degree. The appellants sued for a declara­ tion that the deed of adoption executed by Harnam ~ Singh on July, . 30, 1940, adopting Gurmej Singh was invalid and could not affect the reversionary rights of the appellants after the death. of Harnam Singh. The appellant's case was that under the Customary Law of Gurdaspur District applicable to the Gill Jats of village Gillanwali, Harnam Singh could only adopt a "near collateral" and Gurmej Singh being a distant . < collateral his adoption was invalid. The defence was a denial of the plaintiffs' claim. Both . the trial Judge and the District Judge on appeal hdd that the factum and the validity of the adoption were fully established. In second appeal Trevor Harries C. J. and Mahajan J. (as he then was) held that there was sufficient evidence 9f the factum of adoption as furnished by the deed and the subsequent conduct of Harnam Singh. They held that all that was necessary under the custom to consti~ f tute an adoption was the expression of a clear intention on the part of the adoptive father to adopt the boy concerned as his son and this intention was clearly manifested here by the execution and registration of the deed of adoption coupled with the public declara­ tions and treatru.ents as adopted son. Upon the legal validity of the adoption the High Court found that the answer to Question 9 of the Riwaj-i-am of Gurdaspur ,_ District of the year 1913 laying down that the adoption of "near collaterals only" was recognised was not mandatory. The High Court relied in support of their 1954 Hem Singh and Another v. Harnam Singh and Another Ghulam Hasan J. 1954 Hem Singh and Another v. Harnam Singh and Another. Ghulam Hasan J. 46 SUPREME COURT· REPORTS'. [ 1955]' conclusion on ·'a decision' :of. Tek Chand }. in /owala v. Diwan Singh ( 1 ) and the Privy Council dec'ision id Basant Singh v. Brij Rai Saran Si'ngh ('). The first· question· regarding ti).e f~ctuin of · adopti6n need not detain us !Ong. The deed of adoption, Exhibit D. 1, recites that Harnam Singh had. no malt issue who could perform· his kiry a karam i:ereinoriy after his death, that Gurmej Singh had· been brought up while he was an infant by his wife arid that he had · adopted him according to the prevailing custom. The recital continues that since the adoption he had been treating and calling Gurmej Singh as his adopted son. This fact was well-known in the village and the adoptee was en­ joying all rights of a son. He had executed a formal document in his favour in order to put an end to any dispute· which might be raised about his adoption. As adopted son he made him the owner of all of his pro­ perty. We are satisfied that there . is ample evidence to sustain the finding on the factum of adoption. The main question which falls to be considered is whether under the terms of the Riwaj-i-am applicable to the parties, Gurmej Singh being a collateral of Harnain Singh in the 8th degree could be validly adopted. The custom in question is founded on Ques­ tion 9 and its answer in the Customary Law of the Gurdaspur District. They are as follows :- "Question 9. Is there any rule by which it is re­ quired that the person adopted should be related to the person adopting ? If so, what relatives may be adopted ? Is any preference required to be shown to particular relatives ? If so, enumerate them in order of preference. Is it necessary that the adopted son and his adoptive father should be ( 1) of the same caste or tribe ; (2) of the .same got ? Answer : The only tribes that recognised the adop­ tion of a daughter's son are the Sayyads of the Shak­ argarh and the Arains of the Gurdaspur Tahsil. The Brahmans of the Batala Tahsil state that only such of them as ar~ not agriculturists by occupation recognize ..(_ such adoption. The Muhammadan Jats of the (1j· 1661.C. 237. (2) I.L.R. 57 AU.494. ' - - - s.c.R. SUPREME C0VRT REJ?ORTS 47 Gurdaspur Tahsil- .,<;:ould .. not coj:ne · to an 'agreeme,1.1t on this point .. . The r.emaining:tribes recognise the adoption 9f near collaterals only .. . .The right fJf, selection rests with the pers0r1i. adopting. , The. Khatris,. Brahµians and. Bedis and Sodi.s of the Gurdaspur, Tehsil, however, state that the nean::st collaterals cannot be superseded . and selection should. always. be mape from· among them." . It is contended for the appellants that · the · expres­ sion "near collaterals ' only" ' must be ' construed to mean·. a collateral• up· to· the third degree· and does not cover the case of a · remote · collateral in the 8th degree. The restriction as regards :the degree of relationship of the adoptee, " it is ·urged; is ·mandatory and cannot be ignored. · The· expression "near collaterals" is · ·not defined by the custom. The ·relevant answer which we have underlined above gives no indication as to' ' the pm:ise ·import · of the· words: "near ·collaterals." The custom recorded in the R'iwaj-i-am is in derogation of the general custom and those who set up such a custom must prove it by clear and unequivocal language. The language is on the face of. it ambiguous and we can see no warrant for limiting the expression to signify colla­ teral relationship' only up to' a certain degree and no further. We. are also of opinion that the language used amounts to no more than an expression of a wish on the part of the narrators of the custom and is not manda­ tory. If the intention was to give it a mandatory force, the Riwajci-am would have avoided the use of ambi­ guous words which are susceptible of a conflicting inter­ pretation. The provision that the right of selection rests with the person adopting also detracts from the mandatory nature of the limitation · imposed upon the degree of relationship. Though the adoption of what the custom describes as "near collaterals only" was recognized by the community of Jats, the right of selection was left to the discretion cif the adopter. There is no meaning in conferring a discretion upon the adopter if he is not allowed to exercise the right of selection as between collaterals inter se. We are unable to read into the answer a restriction upon the choice of the adopter of any particular · collateral · however near in degree he may be. Hr.m Singh and Anot/ier v. Harnam Singh and Another. Ghulam Hasan]. 1954 Hc,.m Singh and AnotheT v. Harnam Sing.~ and Anotlier. Ghulam Hasan J. 48 SUPREME COURT REPORTS [19551 In·· his valuable work entitled "Digest · of Customary Law in the Punjab" Sir W. H. Rattigan states in para­ graph 35 that "a sonless. proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir" and in paragraph 36. that "there is no restrictions as regards the age or the degree of relationship of the person to be appointed". It appears to us that the basic idea underlying . a customary adoption prevalent . in the Punjab is the appointment of an heir to the adopter with a view to associate him in his agricultural pur­ suits and family affairs. The object is to confer a personal benefit upon a kinsman from the secular point of view unlike the adoption under the Hindu Law where the primary consideration in the mind of the adopter if a male is to derive spiritual benefit and if a female, to confer such benefit upon her husband. That is why no emphasis is laid on ap.y ceremonies and great latitude is allowed to the . adopter in the matter of selection. Mulla in his well-known work on . Hindu Law says : "It has similarly· been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory ; therefore, the adoption of an only son, or a stranger in preference to a rela­ tion, if completed, is not invalid. In cases such as the above, were the texts· are merely directory, · the principle of factum valet applies, and the act done is valid and binding." (Page 541). We see no reason why a declaration in a Riwaj-i-am should be treated differently and the text of the answer should .not be taken to be directory. However peremptory may be the language used in the answers given by the narrators of the custdm, the dominant intention underlying their declarations which is to confer a temporal benefit upon one's kinsmen should not be lost sight of. A number of cases have. been cited before us t,; show that in recording the custom the language used was of a peremptory nature and yet the Courts have held that ·- ·- - S.C.R.' SUPREME COURT REPORTS 49 the declarations were merely directory and non-com­ pliance with those declarations did not invalidate the custom. In Jiwan Singh and Another v. Pal Singh and Ano­ ther<.:) Shah Din and Beadon JJ. held "that by custom among Randhawa Jats of Mauza Bhangali, Tahsil Amritsar, the adoption, by a registered deed, of a collateral in the 9th degree who is of 16 years of age is valid 111 the presence of nearer. collaterals." The adop­ tion was objected to on the ground that the adoptee was a remote collateral and that he was not under the age of twelve at the time of the adoption as required by the Riwaj-i-am. The learned Judges held that the provision as regards the age was recommendatory and not of a mandatory character. In Sant Singh v. Mula and Others( 2 ) Robertson and Beadon JJ. held "that among Jats and kindred tribes in the Punjab, the general, . though not the universal, custom 1s that a man may appoint an heir from amongst the descendants of his ancestor and that he need not necessarily appoint the nearest collateral." This was a case where distant collateral was preferred to a nearer collateral. The learned Judges expressed the opinion that the clause which points to the advis­ ability of adopting from amongst near collaterals was nothing more than advisory. In Chanan Singh v. Buta Singh and Others( 3 ), a case from Jullundur District, the question and answer were as follows :- "Q. No. 71 : Are any formalities necessary to con­ stitute a valid adoption, if so, describe them. State expressly whether the om1ss10n of any customary ceremonies will vitiate the adoption ? A ...... The essence of adoption is that the fact of adoption be declared before the brotherhood or other residents of the village. The usual practice is that the Baradari gathers together and the adopter declares m their presence the fact of the adoption. Sweets are distributed and a deed of adoption is also drawn up. If (1) 22 P.R. 1913. p. 84. (3) A.LR. 1935 Lah. 83. (2) 44 P.R. 1913 p. I 73· 7 1954 Hem Singh and Another v. HamamSingh and Another. Ghulam Hasan]. !954 Hem Singh afid .Another v. Ha;nam Singh and .A1wlh~r. Qhulam Hasan J· these formalities .are·.·not observed the ·,adoption .... is, not considered.valid."·.,· '.•:, • , , "·'' •, ., . .... · , The adoption was challenged on the ground that there was no gathering of .the,.brotherhood .. The learned Judges (Addison and Beckett. JJ.).,.held ·that: it ,;was immaterial .whether .. there was o~ was .not a gathering of the brotherhood .,at the time ... .It. appears that , .the adopter had made•· a ·statement _in Court acknowledging the· appointment or '.adoption• in question .. The. next day. he celeb.rated . the. marriage. of, the_ .boy as his son, and thereafter .he looked after his education and allow~ ed him .to describe himself .as. his, adopted son or appointed heir, a.nd the boy lived 'with .him as his son. The learned Judges held ~hat the details given in the answers to questions in various .Customary · Laws were Iiot necessarily· mandatory· but . might .be merely indi­ catory. In Jowala v. Dewan Singh( 1 ) · Tek · Chand· J. held "that an adoption of a collateral in the fourth degree, among Jats of Mauza Hussanpur, Tahsil Nakodar, District Jullundur, is valid although nearer collaterals are alive." He also. held "that an· eh try· in the Riwaj­ i-am as to the persons who can be adopted is merely indicatory" •. In a· case from Delhi reported. in Basant Singh and Others v. Brij Raj Saran Singh( 2 ) the Privy Council held "that the restriction in the Riwaj-i-am of adop­ tion to persons of the same go·tra is recommendatory and a person of a different gotra may be adopted." Council for the appellants frankly conceded that he could cite no case where the declarations governing customary adoptions were held to be mandatory. Whether a particular rule recorded in the Riwaj-i-am is mandatory or directory must depend on what is the essential characteristic of the custom. Under the Hindu Law adoption is : primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have, therefore, been held to be. mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand, under the (') I66 I.C. 23;. (2) 57 All. 494· - ">-- - + • . .( - S.C.R SUPREME COURT R:EPORTS Customary Law , in the, Punjab; , adoption . is '. secular; in ch.aracter, the. object :being to• appoint an heir :and . .'the ruks relating. to ,ceremonies and, to• preferences,.in. selec­ tion have to be held } to· be · directory and adoptions made in disregard of them are not invalid. There is no substance in the appeal and we dismiss :ir with costs. . . Appeal dismissed. NATHOO LAL v. DURGA PRASAD [MEHR CHAND MAHAJAN c.r, VIVIAN BosE and GHULAM HASAN JJ.J Hindu Law-Female-Alienation in her favour-Whether any presumption of law that she does not get absolute or alienable ·interest i1! the property-Whether the case of a male and that of a female' rilitferent. It may be taken as well settled that there is no warrant , for the proposition of law that when a grant of immoveable property is made to a Hindu female she does not get an absolute or alien­ able interest in such property unless such power is expressly con­ ferred upon her. The law is that there is no presumption one way or the other and there is no difference between the case of a male and the case ·of a female and the fact that the. donee is a woman does .not make the gift any the less absolute where the words would be ·sufficient ·to convey an absolute estate to a male. Mohamed Shumsool v. Shewukram (2 I.A. 7), Nagammal v. Subbalakshmi [(1947) I.M.L.J. 641 and Ram Gopal v. 'Nand Lal <(A.LR. 1951 S. C. 139) referred to. CIVIL APPELLATE No. 59 of 1953. JURISDICTION : Civil . Appeal Appeal from the Judgment and Order dated the 5th April, 1950, of the High Court of Rajasthan at Jaipur in Case No. 24 of Samvat 2005 (Rei.view modi­ :fying the Decree dated the 3rd March, 1949, of the High •Court of the former Jaipur State in Civil Second Appeal No. 187 of Samvat 2004 against the · Decree 1954 Hem Singh and Another v. HamamSingh and Another . 1954 April 9.