# [1955] 1 S.C.R. 44

- **Citation:** [1955] 1 S.C.R. 44
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Regular Second Appeal No. 450 of 1942
- **Bench:** B. K. MuKHERJEA, V1"1AN BosE, Ghulam Hasan, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-44-400
- **Pages:** 8

## Headnote

Custom-Adoption-Gill lats
of
village
Gillantuali
District
Gurdaspur (Punjab )~Adoption of .a collateral of 8th degree-Vali·
dity of.
Held, that under the Customary Law of Gurdaspur
District
(Punjab) applicable to the Gill Jats of village Gillanwali, the adoption of a collateral of the 8.th decree is not invalid~
'
The ~nswer to
question
9 in Customary Law 0£ the Gurdas~ ·
ptir District that "the adOption· of near collateral only" should be
recognised is not mandatory but directory.
·
· · Under the Customary Law in the Punjab, adoption is secular
in· character, the object being to appoint an heir and the rules relat~
ing to ceremonies and to preferences in selection have
to · be held
to_ be
directory and adoptions made
in disregard of them are not
invalid.
'
'
.,
fiwan Singh and Another v. Pal Singh and Anothe,. (22 P.R.
1913 at p. 84); Sant Singh v. Mula and Others (44 P.R. 1913 at p.
173); Charan Singh v. Buta Singh and Others (A.LR. 1935 I.:.ah. 83) :
Jowala v. Dewan Singh (166 l.C. 237); and Basant Singh
and
Others v . . Brij Raj Saran Singh (I.L.R. 57 AlL 494) referred to.
CIVIL
APPELLATE
JuRISDICTION : ·. Civil·
Appeal
No. 124 of.1951.
Appeal by Special Leave granted· by His Majesty in
Council, dated the . 30th October, 1945, from the Judgment and Decree, dated the 12th July, 1944, of the
High Court of Judicature, at Lahore in Civil Regular
Second
Appeal No. 450 of 1942, against the Judgment and Decree, dated the 14th .January,
1~2, of
the Court of the District Judge, Gurdaspur, in Appeal
No. 91
of
1941,
arising from
the
Judgment and
Decree,
dated 31st July,
1941,
of
the Court of
Senior Subordinate Judge, Gurda51Pur, in Suit No. 80
.of 1940.
G. S. Vohra and Harbans
Singh for
the appellants.
(
~·
Achhru Ram (!. B. Dadachanji and R. N. Sachthey,
~
with him) for respondents.
·
-
•
-
'
S.C.R.
SUPREME COURT REPORTS
45
1954;
April 1. The Judgment of the Court was
delivered by
GHULAM HASAN J.-This
is an
appeal
by
special
leave granted by the Privy
Council . against the judgment 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 declaration 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 declarations
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 Co

## Text

1954
April 1.
44
SUPREME COURT REPORTS
[1955]
. HEM SINGH A,ND J\.NOTHER
v ..
HARNAM SINGH AND ANOTHER.
[B. K. MuKHERJEA, V1"1AN BosE, GHULAM HASAN and
VENKATARAMA AYYAR JJ.)
Custom-Adoption-Gill lats
of
village
Gillantuali
District
Gurdaspur (Punjab )~Adoption of .a collateral of 8th degree-Vali·
dity of.
Held, that under the Customary Law of Gurdaspur
District
(Punjab) applicable to the Gill Jats of village Gillanwali, the adoption of a collateral of the 8.th decree is not invalid~
'
The ~nswer to
question
9 in Customary Law 0£ the Gurdas~ ·
ptir District that "the adOption· of near collateral only" should be
recognised is not mandatory but directory.
·
· · Under the Customary Law in the Punjab, adoption is secular
in· character, the object being to appoint an heir and the rules relat~
ing to ceremonies and to preferences in selection have
to · be held
to_ be
directory and adoptions made
in disregard of them are not
invalid.
'
'
.,
fiwan Singh and Another v. Pal Singh and Anothe,. (22 P.R.
1913 at p. 84); Sant Singh v. Mula and Others (44 P.R. 1913 at p.
173); Charan Singh v. Buta Singh and Others (A.LR. 1935 I.:.ah. 83) :
Jowala v. Dewan Singh (166 l.C. 237); and Basant Singh
and
Others v . . Brij Raj Saran Singh (I.L.R. 57 AlL 494) referred to.
CIVIL
APPELLATE
JuRISDICTION : ·. Civil·
Appeal
No. 124 of.1951.
Appeal by Special Leave granted· by His Majesty in
Council, dated the . 30th October, 1945, from the Judgment and Decree, dated the 12th July, 1944, of the
High Court of Judicature, at Lahore in Civil Regular
Second
Appeal No. 450 of 1942, against the Judgment and Decree, dated the 14th .January,
1~2, of
the Court of the District Judge, Gurdaspur, in Appeal
No. 91
of
1941,
arising from
the
Judgment and
Decree,
dated 31st July,
1941,
of
the Court of
Senior Subordinate Judge, Gurda51Pur, in Suit No. 80
.of 1940.
G. S. Vohra and Harbans
Singh for
the appellants.
(
~·
Achhru Ram (!. B. Dadachanji and R. N. Sachthey,
~
with him) for respondents.
·
-
•
-
'
S.C.R.
SUPREME COURT REPORTS
45
1954;
April 1. The Judgment of the Court was
delivered by
GHULAM HASAN J.-This
is an
appeal
by
special
leave granted by the Privy
Council . against the judgment 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 declaration 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 declarations
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 enjoying 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 property.
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 Question 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 required 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 adoption of a daughter's son are the
Sayyads of the Shakargarh 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 · expression
"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 collateral 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 mandatory. If the intention was to give it a mandatory force,
the Riwajci-am would have avoided the use of ambiguous words which are susceptible of a conflicting interpretation. 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 paragraph 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 pursuits 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 relation, 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-compliance with those declarations did not invalidate the
custom.
In Jiwan Singh and Another v. Pal Singh and Another<.:)
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 adoption 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 advisability 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 constitute 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·
50
SUPREME COURT REPORTS
[1955]
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 indicatory.
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 Riwaji-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 adoption 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. selection 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 alienable interest in such property unless such power is expressly
conferred 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.