# KARTAR SINGH v. SURJAN SINGH (Dead) lAlagiriswami, J.) 743

- **Citation:** [1975] 1 S.C.R. 742
- **Court:** Supreme Court of India
- **Decided:** 1975
- **Bench:** P. JAGANMOf!AN REDDY, M. H. Beg, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kartar-singh-v-surjan-singh-dead-lalagiriswami-j-743-6242
- **Pages:** 5

## Headnote

ll
Hindu Adoption and Maintenance Act, 1956 s. 1 l(vi)-Scope of-"With intent to
transfer the ·child Jrotn the fan1i!y of its birth to the family of its adoption"-Meaning.
The first respondent's suit questioning the adoption of the appellant was dismissed by the trial court. The first appellate court held that the ceremony of giving a:nd
taking had not taken place and allowed the appeal. The single judge of the High
Court held that the giving and taking had taken place and that there was intention
to transfer the appellant fro1n the family of his birth to that of the adoptive family
C
within the meaning of s. 1 l(vi) of the Hindu Adoption and Maintenance Act, 1956.
However, in Letters Patent Appeal the Division BeQch held that there was no intention to transfer the appellant from his natural family to the family of adoptive
father.
Allo\ving the appeal,
HELD : The single Judge was right in his conclusion that there was evidence
of intention to transfer the appellant from his natural family to that of the adoptive
father and that the fact that the adoptive father was at one time governed by customary law or that the adoption was stated to have been validly made in accordance
with custom would not go to show that the intention at the time of the adoption
\Vas not to transplant the appellant fro1n his natural family to that of the adoptive
family,
because customary law also recognises formal adoption resulting in change
of family. The Division Bench failed to take into consideration the fact that the
very ceremony of giving and taking is in itself symbolic of transplanting the adopted
son from the family of his birth to the adoptive family.
[743 F-744A,H]
(2) The adoption deed refers to the adoptive father taking the appellant into
his Jap from his parents and adopting him as his son. The adoptive father referred
to the appellant as adopted son and specificaily ca.lled the document "adoption
deed". The adoption deed is to be read as a whole and so read there could be no
doubt that what the adoptive father intended was to make an adoption acc_ording
to law and not merely appoint an heir according to custon1. After the abolition
of the customary Jaw of adoption, whether of the formal or informal kind, there is
no room for any argument about the validity of the adoption provided the formalities prescribed by Jaw were complied with.
The words ins. ll{vi) of the Act"
with intent to transfer the child from the family of its birth to the family of its adoption" are merely indicative of the result of actual giving and taking by the parents
or guardians concerned referred to in the earlier part of the clause.
Where an adoption ceremony was gone through and the giving and taking took place there cannot
be any other intention.
[745D-F, H-746A]
ln the instant case there was a clear finding that the intention was to transfer the
adopted son to the adoptive family.

## Text

742
KARTAR SINGH (MINOR) THROUGH
GUARDIAN BACHAN SINGH
1'.
SURJAN SINGH (DEAD) AND ORS.
'
August 16. 1974
A
[P. JAGANMOf!AN REDDY, M. H. BEG AND A. ALAGIRISWAMI, JJ.]
ll
Hindu Adoption and Maintenance Act, 1956 s. 1 l(vi)-Scope of-"With intent to
transfer the ·child Jrotn the fan1i!y of its birth to the family of its adoption"-Meaning.
The first respondent's suit questioning the adoption of the appellant was dismissed by the trial court. The first appellate court held that the ceremony of giving a:nd
taking had not taken place and allowed the appeal. The single judge of the High
Court held that the giving and taking had taken place and that there was intention
to transfer the appellant fro1n the family of his birth to that of the adoptive family
C
within the meaning of s. 1 l(vi) of the Hindu Adoption and Maintenance Act, 1956.
However, in Letters Patent Appeal the Division BeQch held that there was no intention to transfer the appellant from his natural family to the family of adoptive
father.
Allo\ving the appeal,
HELD : The single Judge was right in his conclusion that there was evidence
of intention to transfer the appellant from his natural family to that of the adoptive
father and that the fact that the adoptive father was at one time governed by customary law or that the adoption was stated to have been validly made in accordance
with custom would not go to show that the intention at the time of the adoption
\Vas not to transplant the appellant fro1n his natural family to that of the adoptive
family,
because customary law also recognises formal adoption resulting in change
of family. The Division Bench failed to take into consideration the fact that the
very ceremony of giving and taking is in itself symbolic of transplanting the adopted
son from the family of his birth to the adoptive family.
[743 F-744A,H]
(2) The adoption deed refers to the adoptive father taking the appellant into
his Jap from his parents and adopting him as his son. The adoptive father referred
to the appellant as adopted son and specificaily ca.lled the document "adoption
deed". The adoption deed is to be read as a whole and so read there could be no
doubt that what the adoptive father intended was to make an adoption acc_ording
to law and not merely appoint an heir according to custon1. After the abolition
of the customary Jaw of adoption, whether of the formal or informal kind, there is
no room for any argument about the validity of the adoption provided the formalities prescribed by Jaw were complied with.
The words ins. ll{vi) of the Act"
with intent to transfer the child from the family of its birth to the family of its adoption" are merely indicative of the result of actual giving and taking by the parents
or guardians concerned referred to in the earlier part of the clause.
Where an adoption ceremony was gone through and the giving and taking took place there cannot
be any other intention.
[745D-F, H-746A]
ln the instant case there was a clear finding that the intention was to transfer the
adopted son to the adoptive family.
CIVIL APPELLATE JURISDICTION :
Civil Appeal N.). 1888 of 1967.
Appeal by Special Leave from the Judgment & D<ciCc dated tlcc
12th April, 1967 of the Punjab & Haryana High Court in LP.A. No.
6 of 1963.
D
E
F
G
Bishan Narain, S. K. Mehta mu/ K. R. Nagara;a, for the Appellant.
H
Hardayal Hardr,
Harhans Singh and Gautam Goswami for
Respondents Nos. 1 (i) to 1 (vi).
A
B
c
D
E
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KARTAR SINGH v. SURJAN SINGH (Dead) lAlagiriswami, J.) 743
The Judgment of the Court was delivered by
. ALAGIRISWAM,I, J. The appellant :vas adopted by Maghi Singh,
htS grand-fathers brother. Magh1 Smgh also executed a deed of
adoption. After his death another brother of Maghi Singh, the )st
respondent, filed the suit, out of which this appeal arises, questioning
the adoption and claiming a half .share in Maghi Singh's property.
The smt was d1snussed by the Tna.l .court but the First Appellate
Court held that the ceremony of g1vmg and taking had not taken
plaee and allowed the appeal. In Second Appeal Justice Khanna
oft.he Punjab High Court, as the then was, held that the giving and
takmg had taken pface and rejected an argument that e\en if there was
the act of giving and taking, it was not with the intent to transfer the
appellant from the family of his birth to that of Maghi Singh beeause
Maghi Singh was governed by customary law. A Division Bench
of the Pun Jab & Haryana High Court hearing the Letters Patent Appeal
against this judgment held that there was no evidence of intention to
transfer the appellant from his natural family to Maghi Singh's family
and allowed the appeal. This appeal is by special leave granted by
this Court.
In the plaint it was alleged that there was no ceremony of adoption
performed nor was the appellant treated as Maghi Singh's sort. It
was also alleged that Maghi Singh was not in his senses when he executed the adoption deed. As the learned Single Judge as well as the
Division Bench have concurrently held that the ceremony of gi~ing
and taking did take place, it is unnecessary to go into that question.
The deed of adopt'ion refer to the giving and taking. It also says that
this was done before the brotherhood of the village, that Maghi Singh
had adopted him as his son according to custom, that he was his legal
heir and representative, that he shall be owner and possessor of
his entire property and that all the rites regarding his death shall be
performed by the adopted son. Even in the grounds of appeal before
Ihe District Judge only the question of ceremony of giving and taking
was canvassed and no point was taken that there was no intention to
transfer the adopted son from the family of his birth to the adoptive
family that point seems to have been taken for the first time before
the learned single Judge of the High Court. We consider that the·
learned Single Judge was right in his conclusion that there was,
evidence of intention to transfer the appellant from his natural
family to that of Maghi Singh and that the fact that Maghi Sing!t was
at one time governed by customary law or that the adoption was
stated to have been validly made in accordance with custom would
not go to show that the intention at the time of adoption was not to
transplant Kartar Singh from his natural family to that ofMaghi Singh
because customary law also
recognises formal adoption resulting in
change of family. It is not as if customary Jaw does not recognise
such adoption. In Punjab before the Hindu Adoptions and maintenance Act 1956 came into force there was prevalent the customary
adoption, which was custom of appointing a heir, the heir so appointed not ceasing to be member of the family of his birth and not
becoming a member of the faimly of the
person who appoints
him as his heir. There was also the more
formal
adoption
744
SUPREME COURT REPORTS
(1975] 1 S.C.R.
which was recognised under the Hindu law in which there was giving
and taking and the adopted son becoming a member of the adoptive
family. The question whether the adopted son become a member of
the adoptive family used to arise in the case of collateral succession.
An appointed heir cannot succeed to the collaterals of tht person who
appointed him as his heir but an adopted sen we uld succeed to the
collaterals of the adoptive father. In Abdhur Rehman Khan & Ors v.
Ragbhir Singh & Anr (51 PLR 119) the custom in Punjab is set out
like this.
"A customary adoption in the Punjab is ordinarily no more
than a mere appointment of an heir, creating only personal
relationship between the adopter !Uld the adoptee. By such
adpotion the adoptee does not become the grandson of the
adopter's father nor the adoptee's son becomes the grandson
of the adopter.
But some agricultural tribes in certain places have been
found to be governed by a special~custom under, which adoption
does not amount to mere appointment of an heir, but has
attached to it all the consequences which flew frcm a full and
formal adoption of Hindu law. Where such a special custom is
found to exist it is not necessary for the adoption that it should
hii.ve taken place in the conformity with the ruks of Hindu law
in the matter of ritual or otherwise, become in such cases it is not
the rule of Hindu law which operates to attach such consequences
to the adoption but it is the custom governing theadoption that
does so, and therefore in order to attract all such consequences
it is quite enough if the adoption conforms to that custom in the
matter of form etc.
Such an adoption effects a complete transplantation of the
adoptee from one family to the other and confers the right of
collateral succession in the adoptive family and takes away the
right of such succession in the natural family.
In the case of such adoption the property devolving on the
adopted son continues to be ancestral in his hands".
It would be noticed that even according to the customary law of
Punjab there was special custom under which adoption attached to
it all the consequences which flow from full and formal adoption
under Hindu law.
The learned Judges of the Division Bench failed to take into consideration the fact that the very ceremony of giving and taking in itself
symbolic of transplanting the adopted son from the family of his
birth to the adoptive family. In this connection reference may be made
to the ancient texts on adoption given in Mayne's Hindu law (11th
Edn) at page 226, according to which Manu says; "he whom his father
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A
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c
0
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G
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KARTAR SINGH V, SuRjAN siNGH (Dead) (Alagiriswami, J.) 7 45
or mother (with her husband's assent) gives to another, etc, is ccnsidered as a son given". The Mitakshara says "He who is gi\rn by his
mother with her husband's consent while her husband is absent or
after her husband's decease, or who is given by his father or by both
being of the same class with the person to whom he is given, bccc mes
his given son". Again at page 237 it is said "The giving and the receiring are absolutely necessary to the validity of an adoption. They are
operative part of the ceremony, being that part of it which transfers the
boy from one family into another. But the Bindu law does not require
there shall be any particular form so far as giving and acceptance arc
conc~rned. For a valid adoption all that the law requires is that
the natural father shall be asked by the adoptive parent to give his
son in adoption, and that the boy shall be handed over and taken for
this purpose".
After the Hindu Adoptions and Maintenances Act, 1956 came into
force there is no room for any customary adoption.
Section 4 of
the A.ct specifically provides that any text, rule or interpretaticn of
Hindu law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect
with respect to any matter for which provision is made in that A.ct.
Therefore the question of any customary adoption, as was in force in
Punjab b~fore that A.ct came into force, does not any longer arise.
The whole error in the reasoning of the Division Bench lies in proceeding on the assumplion that Maghi Singh intended merely to appoi n!
an heir because he referred to custom. But when the document refers
to Maghi Singh taking the appellant into his lap from his parent
and adopting him as his son, the words "according to custom"
can only refer to the custom of adoption; so would the reference to
"custom" in two other places in the document. Maghi Singh refers to
"adopted son" in three places. He specifically calls the document
"adoption deed". The document is to be read as a whole and so reading
there cannot be the least doubt that what Maghi Singh intended was to
make an adoption according to law and not merely appoint an
heir according to custom which prevailed before 1956 but had been
abolished by the Hindu Adoption and Maintenance Act
If the plaintiff had at least pleaded in the alternative that even
though there might have been giving and taking there was no intention
to transfer the adopted boy from,his natural family to the adoptive
family evidence would have been directed to the point. It was
hardly proper to
ha~e aUowed the plainti.ff to
h~ve ra!sed
this question without havmg laid any basis for 1t. either 1n his plea~m~s
or in the evidence. The whole case has been given a twist which 1t
does not bear on the materials on record. After the abolition of the
customary law of adoption. whether of the formal or .of the informal
kind there is no room for any argument aboutthe vahd1ty of the adoption provided the formalities prescribed by law are complied with.
The words in s.11 Cl (vi) of the Act "with intent to transfer the child
from the family of its birth to the family of its adoption" are merely
indicative of the result of actual giving and ta~mg by the parents
or guardians concerned referred to the earlier part of the clause
746
SUPREME COURT REPORTS
(1975] 1 s.c.R.
where an adoption ceremony is gone through and the giving and
taking takes place there cannot be any other intention. The parties did
not intend to go through a play acting or to put up a show. They
obviously intended to comply with the requirement of Jaw that for a
valid adoption there must be giving and taking.
There is moreover clear evidence in this case that the intention
was to transfer the adopted son to the adoptive family. Nasib Chand
D .W .2, said that at the time of adoption Bachan Singh and his wife ·
were present here and they said the boy was his (Maghi Singh's) and
that Maghi
Singh took the son. Pritam Singh D.W.3, said that
Maghi had taken Kartar in his lap and Bachan Singh had asked him
to take his son. Kashmiri Lal D.W.4, said that Maghi had taken
Kartar in his lap and Bachan Singh and his wife were present there
and were saying they had given their son to him. Wasawa Singh
D.W.5, said that when Maghi asked for his son Bachan Singh
said he had given his son to him in adoption. Bachan Singh D.W.7,
said that Maghi had taken his son Kartar Singh from him, that he
was made to sit in the lap of Maghi, that his (D.W.7's) wife was
near him and he had obtained her consent. There cannot be clearer
evidence than this.
The judgment of the Division Bench is set aside and that of the
learned Single Judge restored. The respondents wilJ pay the appellant
costs throughout.
P. B. R.
Appeal Allowed.
A
B
D