# • 2, S.Q.R. SUPREME COUilt.REPORTS ARJAN SINGH AND ORS v. NARAIN SINGH & ORS

- **Citation:** [1964] 2 S.C.R. 19
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-q-r-supreme-couilt-reports-arjan-singh-and-ors-v-narain-singh-ors-2838
- **Pages:** 16

## Headnote

-
•
2, S.Q.R.
SUPREME COUilt.REPORTS
ARJAN SINGH AND ORS.
v.
NARAIN SINGH & ORS.
(P. B.
GAJENDRAGADKA.R, K. N. W.+.NCIIOO,
M. Hm.+.YATULLAH, K. C. DAS GUPTA and
J. C. SHAil, JJ.)
i9
Customary
Law-Jats of 7.'th&il
Zira of Ferozepore
District-Adoption-Formal adoption in Hindu Law and customary appointment of an htir-Differtne<·-Effect of appaintment of heir on connection with natural family.
Harnam Singh died leaving behind two daughters. They
also
died without leaving any issue surviving them.
The
Revenue authorities ordered that the entire estate of Harnam
Singh be entered in the revenue records in the names of the
defendants. ·
The plaintiffs filed a suit for possession of the estate of
Harnam Singh. Their contention was that notwithstanding
the adoption of Ghuda _Singh, their predecessor, by his maternal uncle, they as descendants of Ghuda Singh were not excluded fro1n inheritance to the estate of a memLer in the natural
family of Ghuda Singh: It was also contended that the family
of the plaintiffs and Harnam Singh was governed by Zamindara I~i1uaj-i-am by v!rtue of which a son adopted in another
family and his decendants did not lose their right to inherit in
the natural family Lccausc by the adoption according to the
custom of the community, the adopted son did not completely
se~er his connection with his natural family.
The contention of defendants-appellants was that in
the District of Ferozepore, every adoption in a Hindu family
was formal and according to the Riwaj·i·am of the District,
an adopted son was excluded from the right to inherit irr his
natural family.
Consequently, Ghuda Singh, who was adopted
by Bhan Singh, could not inherit the estate because his adoption operated as complete severance from the natural family.
The suit was dismissed by the Subordinate Judge and
his order was confirmed by the District Judge. However, the
High Court set aside the order of the District Judge and held
that the record disclosed no evidence that the adoption of
Ghmla Singh was formal and hence it must be presumed that
the adoption was a customary appointment of an heir an<l not a
formal adoption under the Hindu Law. It was also held that
.there was overwhelming authority in favour of the proposi·
. ion that by reason of a customary adoption, the adopted
z9r;3
Febru«ry "12. _
1983
.drja Singh
v.
Noroin Singh
SMh J.
20 SUPREME COURT REPOR.ts [1!!64] \Tot.
son and his deoccndauts were not excludod from the right to
inherit to collaterals in the natural family.
The plaintiffs as
grandsons in the 111alc line of Ghuda Singh \Vere entitled to
inherit the e.1tatc.
The appellants came lO this Court by
a certificate of lirness granted uy High Court.
Held, that the view of the High Court was correct. A
person adopted according to the customs of the community, i.e.
who is appointee! as a heir to inherit the property of a person
oui.ide the family, docs not, by virtue of such appointment,
lose his right to inherit in his natural family except the right
to inherit the property of his natural father when there are
natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his decendants.
Daya Ram v. Sol.el Singh (1906) I'. R. No. 110 (F.B.),
AbdulH1"sain Khan v. Bibi Sona Dero (1917) L.R. 4j I.A. IO,
Vauhno Ditti v. Rmneshri (192H) L. R. 55 I. A. 407, Mela
Singh v. Gurdas, (1922) I. L. il. 3 Lah. 362, Jagat Sing/1 v.
Ishar Singli (1930) I. I;. R. 11 Lah. 61_'>! Kanshi R::rn v. Situ
(1934) I. L. Il. IV Lah. 214, Rahrw:U v. Ziledar (194:>) I. L. R.
26 Lah. 504 and Jai Kapur v. Sher Singh, [1960] 3 S. C.R.
975, referred to.
CIVIL ArrELLA'rn JURIS DICTION : Civil Appeals
Nos. 223 & 224 of l!JfH.
Appeals from the judgment and decree dated
April 25, 1956, of the l'unjab High Court in Civil
Regular Second Appeals Nos. 158 and 159 of 1949
respectively.
N. S. Bindra and K.. £. Jfehlll,
for
the
appellants.
Gurbachan Singh, Ilarbans Sinyh and M. L.
Kapur, for the respondents (in C. A. No, 224/61).
1963. Fe

## Text

-
•
2, S.Q.R.
SUPREME COUilt.REPORTS
ARJAN SINGH AND ORS.
v.
NARAIN SINGH & ORS.
(P. B.
GAJENDRAGADKA.R, K. N. W.+.NCIIOO,
M. Hm.+.YATULLAH, K. C. DAS GUPTA and
J. C. SHAil, JJ.)
i9
Customary
Law-Jats of 7.'th&il
Zira of Ferozepore
District-Adoption-Formal adoption in Hindu Law and customary appointment of an htir-Differtne<·-Effect of appaintment of heir on connection with natural family.
Harnam Singh died leaving behind two daughters. They
also
died without leaving any issue surviving them.
The
Revenue authorities ordered that the entire estate of Harnam
Singh be entered in the revenue records in the names of the
defendants. ·
The plaintiffs filed a suit for possession of the estate of
Harnam Singh. Their contention was that notwithstanding
the adoption of Ghuda _Singh, their predecessor, by his maternal uncle, they as descendants of Ghuda Singh were not excluded fro1n inheritance to the estate of a memLer in the natural
family of Ghuda Singh: It was also contended that the family
of the plaintiffs and Harnam Singh was governed by Zamindara I~i1uaj-i-am by v!rtue of which a son adopted in another
family and his decendants did not lose their right to inherit in
the natural family Lccausc by the adoption according to the
custom of the community, the adopted son did not completely
se~er his connection with his natural family.
The contention of defendants-appellants was that in
the District of Ferozepore, every adoption in a Hindu family
was formal and according to the Riwaj·i·am of the District,
an adopted son was excluded from the right to inherit irr his
natural family.
Consequently, Ghuda Singh, who was adopted
by Bhan Singh, could not inherit the estate because his adoption operated as complete severance from the natural family.
The suit was dismissed by the Subordinate Judge and
his order was confirmed by the District Judge. However, the
High Court set aside the order of the District Judge and held
that the record disclosed no evidence that the adoption of
Ghmla Singh was formal and hence it must be presumed that
the adoption was a customary appointment of an heir an<l not a
formal adoption under the Hindu Law. It was also held that
.there was overwhelming authority in favour of the proposi·
. ion that by reason of a customary adoption, the adopted
z9r;3
Febru«ry "12. _
1983
.drja Singh
v.
Noroin Singh
SMh J.
20 SUPREME COURT REPOR.ts [1!!64] \Tot.
son and his deoccndauts were not excludod from the right to
inherit to collaterals in the natural family.
The plaintiffs as
grandsons in the 111alc line of Ghuda Singh \Vere entitled to
inherit the e.1tatc.
The appellants came lO this Court by
a certificate of lirness granted uy High Court.
Held, that the view of the High Court was correct. A
person adopted according to the customs of the community, i.e.
who is appointee! as a heir to inherit the property of a person
oui.ide the family, docs not, by virtue of such appointment,
lose his right to inherit in his natural family except the right
to inherit the property of his natural father when there are
natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his decendants.
Daya Ram v. Sol.el Singh (1906) I'. R. No. 110 (F.B.),
AbdulH1"sain Khan v. Bibi Sona Dero (1917) L.R. 4j I.A. IO,
Vauhno Ditti v. Rmneshri (192H) L. R. 55 I. A. 407, Mela
Singh v. Gurdas, (1922) I. L. il. 3 Lah. 362, Jagat Sing/1 v.
Ishar Singli (1930) I. I;. R. 11 Lah. 61_'>! Kanshi R::rn v. Situ
(1934) I. L. Il. IV Lah. 214, Rahrw:U v. Ziledar (194:>) I. L. R.
26 Lah. 504 and Jai Kapur v. Sher Singh, [1960] 3 S. C.R.
975, referred to.
CIVIL ArrELLA'rn JURIS DICTION : Civil Appeals
Nos. 223 & 224 of l!JfH.
Appeals from the judgment and decree dated
April 25, 1956, of the l'unjab High Court in Civil
Regular Second Appeals Nos. 158 and 159 of 1949
respectively.
N. S. Bindra and K.. £. Jfehlll,
for
the
appellants.
Gurbachan Singh, Ilarbans Sinyh and M. L.
Kapur, for the respondents (in C. A. No, 224/61).
1963. February 12.
The Judgment of the
court was delivered by
SHAH J .-These appeals arise out of two suits
relating to certai~ a&_r~cultur~l l~nds .situate in v.illage
Umri Ana, telml
Z1ra, D1stnct l;crozcpore m the
Punjab. The dispute relates to the right to inherit
the estate of one Harnam Singh who was the last
male holder.
The disputing parties arc· descended
from Sahib Singh as disclosed by the following
genealogy :-
•
•
,)
•
Hami~ Singh
I
I
I
Sahib Singh
I
I
'
'
I
Wazir Singh
l
Chuhar ~ingh
Ghuda Singh
I
I
Kahan Singh
I
j
Attar Singh
I
Daughter
Mst. Bishno
(married
again)
-i
Ramji Singh
I I
I
Dasaundha
Singh
I
Narain Singh
(Pltff.)
l
1----,----,-
Jfakhshish
Ajaib
Mukhtar
Singh
, Singh
Singh
(Pltff.)
(Pltff.)
(Pltff.)
t
h
Roor :Smg
I .
Hamam Smgh
I
I I
Mst. Tejo
(Died without issue)
'a.
Mst.
eJO
(died without issue)
Mangal Singh
Tehl Singh
(Defdt. 2)
I .
Bhola Singh
I
Arjan
Singh
(Defdt.l)
1963
Arjan Sinth
v.
;\'•r•in Sinth
22
SUPREME COURT REPORTS [1964] VOL.
Harnam Singh grandson of Kahan Singh died leaving him surviving two daughters Mst. Tejo and :--1st.
Gejo and no male lineal descendant. The property
of Harnam Singh devolved upon his two daughters
in equal shares.
On the death of Mst. Tejo without
issue the entire estate was entered in the name of
~1st. Gejo by the revenue authorities.
Mst. Gejo
also died in I !J42 without leaving any issue surviving
her.
By order
dated September 6, 194p the Assistant Collector directed that the entire C!tate be entucd
in the name of :'\ arain Singh s/o Dasaundha Singh
and Bakshish Singh, Ajaib Singh and Mukhtar
Singh sons of Ramji Singh-who will hereinafter
be referred to collectively as 'the plaintiffs.'
In
appeal to the Collector of Ferozepore the order of
the Assistant Collector was
set
aside and the
estate was
directed to be
entered
in the names
of Tehl Singh and Arjan Singh sons of ~Iangal
Singh--who will hereinafter br referred to colkcti-
\'cl\' as 'the defendants.' The Commissioner of the
Di~ision confirmed the order of the Collector.
The plaintiffs who arc
the descendants of
Ghuda Singh then instituted suit Xo. !l/1H4i in the
Court of the Subordinate Judge, Zira for a decree
for possession of the estate of Harnam Singh, barring a small area of 8 Kanals and 11 :--!arlasKhasra :\o. 325---which was in their possession.
The defendants '.!.'ho arc the descendants of Wazir
•
Singh in their turn commenced an action (Suit
•
No. 13/l!Mi) for
possession of Khasra No. 325
against the plaintiffs. Each side claimed title to the
estate of Harn am Singh according to the customary
law applicable to the Jats residing in telisil Zira,
District Fcrozeporc. It was the case of the plaintiffs
that notwithstanding the adoption of Ghuda Singh
by his maternal uncle Bhan Singh, Ghuda Singh 's
descendants were not l:'xclnded from i11heritn1w~ to
thr. estate of a m~mber in the natural famih' nf
Ghuda Singh. It was submitted by the plaintiffs
-
•
2 S.C.R.
SUPREME COURT REPORTS
23
that the family of the plaintiffs and Harnam Singh
was governed by Zamindara Riwaj-i-am (general
custom obtaining amongst the Zamindars) by virtue
of which a son adopted in another family and his
descendants do not lose their right to inherit in their
natural family, because by the adoption according to
the custom of the community the adopted son does
not completely sever his connections with his natural
family.
The defendants, on the other hand, claimed
that in the District of Ferozepore every adoption in
a Hindu family is 'formal' and according to the
Riwaj-i-am of the District an adopted son is excluded from the right to inherit in his natural family.
Consequently Ghuda Singh, who was adopted by
Bhan Singh, could not inherit the estate of Hamir
Singh, his adoption operating as a complete severance
from the natural family.
The sole dispute between
the parties was, therefore, as to the customary law
applicable to. the rights of a son adopted in a jat
family residing in tehsil Zira, District F erozepore.
The two suits were consolidated for trial.
The
Subordinate Judge held that all ceremonies relating
to adoption were performed and Ghuda Singh ceased
to be a member of the family of his natural father
according to the custom prevailing in the District
and the plaintiffs who were the descendants of Ghuda
Singh could not inherit the estate of Hamir Singh. In
so holding he relied upon the manual of INwaj-i-am
of Ferozepore District prepared in 1914, which, in
his view, recorded that when any adoption in ,the
District takes effect the adopted son stands 'transplanted to the family of the adopter'. In appeal the
District Court, Ferozepore held that in the case of
Jats of Ferozepore District by special custom prevailing in the Dist ist,
the adopted son had the
right to inherit collaterally in the family of his
adoptive father only and could not inherit collaterally in his natural father's family.
In second appeal
the High Court of Punjab set aside the decree passed
--
Arjan Sinth
v.
N•rain Sinth
Shah J.
1963
A1ja11 Singh
V,
,v.rai11 Sin:li
24
SUPREME COURT REPORTS (1964] VOL.
by the District Court. In the view of the High
Court the record disclosed no evidence that the
adoption of Ghuda Singh made by his maternal uncle
Bhan Singh was formal and in the absence of anv
such evidence it must be presumed that the adoption
was a customary appointment of an heir and not a
formal. adoption under the Hindu Law and that
there was overwhelming authority in favour of the
proposition that by reason of a customary adoption
the adopted son and pis descendants were not excluded from the right to inherit to collaterals in the
natural family.
The High Court accordingly held
that the plaintiffs, as grandsons in the male line of
Ghuda Singh, were entitled to inherit the estate of
IIamir Singh. With certificate of fitness granted by
the High Court, these two appeals arc preferred by
the defendants.
It is common ground that Ghuda Singh was
adopted some time before 1856 by Bl1an Singh, his
maternal uncle.
The dispute between the parties
has to be resolved by applying the customary law
applicable to the parties, because s. 5 of the Punjab
Laws Act, 1872 which governs the parties provides
that :
"lu questions regarding succession. special
property of females, betrothal and marriage,
divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies,
gifts, partition, or any religious usage or insti- ·
tution, the rule of decision shall be-
(a) any custom applicable to the parties concerned, which is not contrary to justice,
equity or good consdence, and has not
been by this or any other enactment altered
or abolished, and has not been declared to
be void by any competent authority;
i
•
•
•
•
2 S.C.R.
SUPREME COURT REPORTS
25
(b) The Muhammadan Law in cases where the
parties are Muhammadans, and the Hindu
Law, in cases where the parties are Hindus,
except in so far as such "law has been
altered or abolished by legislative enact·
ment, or is opposed to the provisions of
this Act, or has been modified by any such
custom as is above referred to."
In Daya Ram v. Sahel Singh (1), Robertson, J., (at
p. 410) in •iealing with the true effect of s. 5
observed:
"In all cases it appears to me under this Act,
it lies upon the person asserting that he is ruled
in regard to a particular matter by custom, to
prove that he is so governed, and not by personal law, and further,
to prove what the
particular custom is.
There is no presumption
created by the clause in favour of custom; on
tht: contrary, it is only when the custom is
established that it is to be the rule of decision.
The Legislature did not show itself enamoured
of custom rather than law, nor does it show any
tendency to extend the 'principles' of custom
to any matter to which a rule of custom is not
clearly proved to apply. It is not the spirit
of customary law, nor any theory of custom or
1 deductions from other customs which is to be a
rule of decisions, but only 'any custom applicable to the parties concerned which is not. ..... ';
and it 'therefore' appears to me clear that when
either party to a suit sets up 'custom' as a rule
of decision, it lies upon him to prove the
custom which he seeks to apply; if he fails to do
so clause (b) of s. 5 of the Punjab Laws Act
applies, and the rule of decision must be the
personal law of the parties subject to the other
provisions of the clause."
This view was affirmed by the Judicial Committee
(I) (1906) P.R. No. 110 (F0B,),
19~3
Arjan Singh
v.
Na rain Singh
Shoh J.
1963
Arjan
Sin.~li
v.
A'araV1 Singh
Shah J.
~, .
•
26 SUPREME COURT REPORTS [1964) VOL.
of the Privy Council in Abdul lfo8sein Khan v. Hibi
Sona Dem (1). In Vai8lmo Ditti v. llameRhri ('), the
.Judicial Committee obsc.rved :
"x
x
x
x
their Lordships are of
opinion that in putting custom in the forefront,
as the rule of succession, whilst leaving the
particular custom to be established, as it necessarily must be, the Legislature intended to
recognize the fact that in this part of India
inheritance and the other matlcrs mentioned in the section are largely regulated by a
variety of customs which de.part from the ordinary rules of Hindu and ~fohamedan law."
The pleadings also disclose an unanimity that the
rights of the parties have to be adjudged in the light
of the customary law applicable and not by the rules
of Hindu Law. The relevant general custom which
is applicable in the matter of adoption is to be found
in Rattigan's Digest of Civil law for the Punjab,
13
Ed
--•)
. . n.
P· u, _ :
Article 48 :
"An heir appointed in
the manner above
described ordinarily does not thereby lose his
right to succeed to property in his
natural
family, as against collaterals, but does
not
succeed in the presence of his natural brothers."
•
Art.ir.le 49 :
•
"Nor, on the other hand, does the heir arq11ire
a 'right to succeed to the collateral relatives of
the person who appoints him, where no formal
acloption has taken place, inasmuch as
the
relationship established between him and the
,
appointer is a purely personal one."
This adoption, according to Rattigan is irrevocable
and an adopted son cannot relinquish his status.
(I) (1917) L.R. 45. J.A. 10.
(2) (1928) L~R, 55 J,A. 107, t21.
•
-
..
2 S.C.R.
SUPREME COURT REPORTS
27
Article 52 sets out the rights of the adopted son.
It
stales :
"The appointed h~ir succeeds to all the rights
and interests held or enjoyed by the appointer,
and, semble, would succeed
equally with a
natural son subsequently born."
There is a long course of decisions in the High
Court of Lahore and the High Court of Punjab in
which it has been held that the relationship between
the appointed heir and the appointer which is called
adoption is purely a personal one and resembles the
Kritrima form of adoption of Hindu Law: Mela
Singh v. Gurdas (1). Sir Shadi Lal, C. J. observrd
in dealing with the effect of a customary adoption in
the Punjab :
"The tie of kinship with the natural family is
not dissolved and the fiction of blood relationship with the members of the new family has
no application to the appointed heir.
The
relationship established between the appointer
and the appointee is a purely personal one and
does not extend beyond the contracting parties
on either side."
Similarly in .fogat Singh v. lshar Singh (2), it was
held that the reservation as to the adopted son not
succeeding in the presence of his brothers refers only
to his succession to his natural father but does not
apply to cases of collateral succession in his natural
family.
A similar view was expressed in Kanshi
R<im v. Situ ('), and F!ahm1it v. Ziledrir ('). In the
last mentioned case it was stated :
"Under the general custom of the province a
person who is appointed as an heir to a third
person does not thereby lose his right to succeed to the property of his natural father.
Rut
(!) (1922) I.L.R. 3 Lah. %2 (F.D.)
'2) (1930) I.J..R. 11 Lah. 615.
(3) (1934J I.L.ll. 16 Lah. 214.
(4) (19i5) I.L.R. 26 Lah. 540,
1963
Arjan Sinth
v.
Narain Sinth
Shah /,
1963
' .Arjtvi Singh
v.
lftuain Sin:h
Shah J.
28 SUPREME COURT REPORTS (1964] VOL.
the appointed heir and his lineal descendants
have no right to succeed to the property of the
appointed heir's
natural father against the
other son~ of the n"tural father and
their
descendants.
The appointed heir can succeed
to the property of his natural father when the
only other claimant is the collateral heir of the
latter."
But it is urged on behalf of the defendants that the
general custom applicable to the Punjab as recorded
by Rattigan is shown to be superseded by proof of a
special custom of the
District recorded
in
the
Riwaj-i-am of Ferozeporc District prepared by
Mr. Currie at the settlement of 1914, and reliance
is placed upon ·answers to Qpcstions 76 and i7 which
deal with the effect of adoption. The QJ1estions and
the Answers recorded arc :
"Question 76-Does an adopted son retain his
right to inherit from his natural father ? Can
he inherit from his natural father if the natural
father dies without other sons ?
Answer-All agree that the adopted son cannot
inherit from his natural father, except as for as
regards such share of the property as would
come to his adoptive father as a collateral.
Sodhis 'however' say that he can inherit his
natural father's estate if the latter has no male
descendants, while the Nipc1le say the adopted
son inherits from both fat hers.
Question 77-Describe tbe rights of an adopted
son to inherit from his adoptive fatlier.
What
is the effect of the subsequent birth of legitimate sons to the adoptive father ? Will the
adopted son take equal shares with them ? If
natural legitimate sons be born subsequently
to the adoption where the clrnndawand system
•
•
•
•
r
'-":
2 S.C.R.
SUPREME COURT REPORTS 29
of inheritance prevails, how will the share of
the adopted son, whose tribe differs from that
of the adoptive father, inherit from him ? Does
an adopted son retain his own got or take that
of his adoptive father ?
Answer--An adopted son has exactly the same
rights of inheritance from his adoptive father as
a natural legitimate son.
The inheritance
would only be by ohunriawand, if that was lhe
prevalent rule of the family.
The Nipals, Rajputs, Arains, JJ!oghals,
Sayyads, Gujjars and Muhammadan
Jats
state that if the adopted sou is of a different
got he takes the got of his adoptive father ;
while if he is of a different tribe, he cannot
inherit.
As it is, as a rule aged men without hope of
sons who adopt, cases of the birth of legitimate
sons after adoption has taken place must be
rare.''
When there is conflict between the general
custom stated in Rattigan's Digest of Customary Law
and the Riwaj-i-am which applies to a particular
area it has been held by this Court that the latter
prevails.
In Jai Kapur v. Sher Singh ('), it was
•
observed :
"There is, therefore, an initial presumption of
correctness as regards the entries in the
Riwaj-i-am and when the custom as recorded
in the Riwaj-i-am is in conflict with the general
custom as recorded in Rattigan's Digest or
ascertained otherwise,
the
entries in the
Riwaj-i-am should ordinarily, prevail except
that as was pointed out by the Judicial Committee in Mt. Subhani v. Nd.wab [A, I. R. 1941
(I) UV60) B S.C,R, 975, 979,
1963
Arjan Singh
v.
;Varain Singh
.\'hah ·J.
19f3
Arj1n Si•tli
Y;
N 41oin Si11gh
S/ra/s J.
·,- ------ ...-..-··--- ,..,,.,.._.,, ..
,;.------··-!!''"'*..,..'·~...-I I IZW~;.,,.'
30
SiJPRE:ME COURT REPORTS [HJ64] \rot.
(P. C.) 21], "that where, as in the present
case, the Hi·11YJ,j-i.a111 affects adversely the rights
of females who harl no opportunity whatever of
appearing before the revenue authorities, the
presumption would be weak, and only a few
instances would suflice to rebut it."
Therefore when there is a conflict between the record
of custom made in Rattigan 's Digest of Customary
Law and the local Riwaj-i-am, prinia Jac1'.e, the latter
would prevail to the extent of the inconsistency, and
it would be for the person pleading a custom or incident thereof different from the custom recorrled in
the
Rewaj-i-mn to prove such custom or incident.
Attention must, therefore, be directed to the question
whether there is in fact any inconsistency between
the custom recorded in Rattigan 's Digest of Customary Law and the relevant entries in the Riwaj.i-<wt.
The general custom recorded in Rattigan 's Digest is
apparently this : a person adopted according to the
custom of the community i.e. who is appointed as an
heir to inherit the property of a person outside the
family docs not, by virtue of such appointment, lose
his right to inherit the property in his natural family
except the right to inherit the property of his
natural father when there are natural brothers. The
natural brothers would take the property to the exclusion of such an adopted son and his descendants.
Question 76 in the Riwaj-i-<J1n primarily refers to
the right of an adopted son to retain his right to
inherit the property of his natural father and the
answer recorded is that the adopted son cannot
inherit the property of the natural father, except
such property as would devolve upon his adoptive
father as a collateral (of the adopted son's natural
father).
It is to be noticed that the question was
directed to ascertain the right of the adopted son to
inherit the estate of his natural father : it did not
seek elucidation on· the right' of the adopted son to
inherit the' estate" of any collaterals of the natural
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SUPREME COURT REPORTS
:H
father, and the fact that in the answer it was recorded that to the estate which would devolve upon his
adoptive father as a collateral of his natural father
he has a right of inheritance, tstrongly supports the
view that the
village elders in replying to the
question were only concerned with the right of an
adopted son ·to inherit the property of his natural
father and were not concerned to dilate upon any
right to collateral
succession in the natural family.
The answer to question 77 also supports this view.
When asked to describe the rights of an adopted son to
inherit the estate of his adoptive father, they replied
that the adopted son had exactly the same rights of
inheritance from his adoptive father as a natural
legitimate son.
Mr. Bindra appearing on behalf of the defendants submitted that Qμestions 76 and 77 were
intended to ascertain the custom of the District
relating to the rights of the adopted son in his
natural farnily and the farnily of his adoptive father
and the answers must be read in that light. We are
unable to accept this suggested interpretation of
Questions 76 and 77 and the information elicited
thereby. The Riwaj-i-arn
appears to have been
carefully compiled by officers of standing and experience, and it is clear that they made a limited
enquiry about the rights of an adopted son to inherit
the property of his natural father and of his adoptive
father.
There is undoubtedly some conflict between
the custom recorded in Rattigan's Digest and the
custom in the Riwaj-i-arn. Whereas in Rattigan's
Digest it is recorded that an heir appointed ill
another family does not succeed •to his natural father
in the presence of his natural brothers, in the
Riwaj-i-arn. it is recorded that the adopted son
does not directly inherit the estate of his natural
father in any event. But we are not concerned with
tl:iilt inconsistency in this case.
It is sufficient to
observe that 'in Art. 48 of Rattigan's Digest, it is
1963
A'jan Singh
v •
.Na,ain Singh
Shah I.
/96S
Arja'll Singh
..
Na1oin Sinth
S"4h, /,
32
SUPREME COURT REPORTS [19M] VOL.
recorded that an heir appointed in the manner
described (an adopted son) docs not thereby lose his
right to succeed to prupcrty in his natural family:
and nothing inconsistent therewith is shown to be
recorded iu the Riwaj-i·u.m of the District.
Mr. Bindra contended that in any event there
is clear evidence
of
instances
of devolution of
property
in the
family
of the
parties indicating that a son adopted in
another family was
totally excluded from
inheritance in the natural
family.
Counsel relied upon Ext. D·5 an extract
from the register of mutations relating to certain
agricultural lands in village Umri Ana. It appears
from that extract that on the death of Hamir Singh
the estate was in the first instance entered in the
names of his three sons.
But Salig
Ram, Patwari
of the village, made a report on l\fay 28, 1884 that
Kahan Singh and Chuhar Singh (two of the sons of
Hamir Singh) claimed that Ghuda Singh had never
been in possession of the l/:lrd share of the Kliatu.
entered in his name and that Ghuda Singh him·
self had admitted that he had no concern with the
J(Jwta in question ,and that his name should be
removed.
On that report the Assistant Collector
ordered that the lands be entered in the names of
Kahan Singh and Chuhar Singh and that the name
of Ghuda Singh be removed from the mutation entry
and that the Jamabandi ·papers be altered accordingly.
But this instance of exclusion of Ghuda
Singh from the right to participate in the estate of
his father is consistent with the statement of custom
recorded iu Rattigan's Digest.
It is
expressly
recorded in Art. 48 that an appointed heir docs not
thereby lose his right to succeed to property in his
natural family, as against collaterals, but he does
not succeed in the presence of his natural brothers.
Kahan Singh and Chuhar Singh were brothers of
Ghuda Singh and Ghucfa Singh having been adcip1ed
could not, according to the custoin recorded ' in
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Rattigan's Digest, inherit his fal 11cr's estate in the
"presence of his brothers."
The other instance relied upon by counsel is
about the devolution of the estate of Chuhar Singh
on the remarriage of his daughter Bishno.
On the
death of Chuhar Singh it appears that his property
was entered in the name of his daughter Bishno, and
when Bishno contracted a Karewa marriage according
to the custom prevalent in the community, the estate
held by her was entered in the name of R ura Singh
and Bhola Singh sons of Kahan _Bingh.
In the
register of mutations Ext. R.D-1 it is recorded that
Ghuda Singh who was the
Lainbardar appeared
before the Tehsildar and identified Mst.
Bishno
and stated that she had contracted Karewa marriage
withjawala Singh and further admitted that Rura
Singh and Bhola Singh were entitled to take her
property, and pursuant to this statement the Tehsildar directed that mutation regarding succession be
sanctioned in favour of Rura Singh and Bhola Singh
in equal shares.
This instance also, in our judgment, does not support any case of departure from
the CJ>Ustom recorded in Rattigan's Digest.
It is clear
from the genealogy and the extract of the register of
mutations Ext. D-1 that the occasion for making an
entry of mutation was the remarriage of Bishno.
Mr. Bindra submitted that according to the custom
of the community a daughter inheriting property,
from her father would on marriage be divested of
the
property, which would devolve upon
the
collaterals of her father,
and according to that
custom when on the remarriage of Bishno the succession opened, Ghuda Singh was on his own admission
excluded.
This, counsel submitted, was a strong
instance supporting a departure from the custom
recorded in Rattigan's Digest. But if by virtue
of the custom prevalent in the community, as asserted by Mr. Bindra, on
her marriage Bishno would
lose her interest in the property of her father, it is
1963
A1jiJ11 Si11.~ii
v.
}1 i rain Singh
Shah.
1!163
. 1 r;',m Singh
v •
. iffTcin Si•t~
.siilh, '·
•
34 SUPREME COURT REPOR.TS (1964] VOL
difficult to appreciate how she acquired title or continued contrary to that custom, to remain owner of the
property of her father after her first marriage. It is
clear that it was not because of her marriage, but
on re-marriage, that the property was 'alleged to have
devolved upon Rura Singh and Bhola Singh.
Why
Bishno did not forfeit her right to the property on
h"r marriage and forfeited her right thereto on remarriage has been left in obscurity.
The learned Judge.> of the High Court held that
the mere circumstance that Ghuda Singh permitted
the estate to go to the descendants of Kahan Singh
was not by itself sufficient to establish ihe custom set
up by the defendants and uncontested instances were
of little value in establishing a.custom. They observed that the instance might have received considerable reinforcement if it had been sho\\;n that Ghuda
Singh or any of. his descendants had inherited coll a-"
terally in the family of Bhan Singh but except
succcs~ion of Ghuda Singh to the estate of Bhan.
Singh which is in accordance with the gimeral custom '
no proof of collateral succession was ~tablishcd, and
the single instance of Chuhar Singh's estate devolving
upon the descendants of Kahan Singh with the consent of Ghuda Singh docs not establish any custom
contrary to what is stated in Rattigan's Digest.
\Ye
are unable to disagree with the view so expressed.
On that view of the case, these appeals fail and
arc dismissed with costs.
Appeal di8missrrl.
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