# KEHAR SINGH & ORS • v. DEWAN SINGH & ORS

- **Citation:** [1966] 3 S.C.R. 393
- **Court:** Supreme Court of India
- **Decided:** 1966-01-21
- **Bench:** K. Subba Rao, M. Hidayatullah, R.S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kehar-singh-ors-v-dewan-singh-ors-3722
- **Pages:** 7

## Headnote

Cus1on1-Jats of Amritsar District-Adoptio11r--Diffefence between adoption as heir and formal adoption-Test of formal adoption-Severence of
ties with natural family-Rlght of p·erson adopted to the property of co/.
laterals of adopting family.
The revenue authorities sanctioned mutation of the lands left by S,
an Aulakh Jat of Tehsil Ajnala in Amritsar District of the Punjab, in
favour of the appellants who were collaterals of S in the 8th degree. A
suit for possession of the said lands was filed against them by the respondents who claimed the lands as descendants of K.
According to them
K Wa5 the daughter's son of M, a collateral of S in the 5th clegrce, and
had been formally adopted by M as his son.
The trial court held that
the adoption of K was the usual customary appointment of an heir and
that by the custom Of Jats in Amritsar District
an appointed heir was
entitled to succeed collaterally in the family of his adoptive father anc!.
consequently K was the preferential heir to S.
The first appellate court
agreed with the trial court that the adoption of K was the customary appointment of an hei"r, but rejected K's claim to be preferential heir on
various grounds.
The High Court in second appeal held that under the
customary law K, as the adopted son of M was entitled to succeed collaterally in his adoptive father's family; on this view it restored the trial
Court's decree.
The appellants came to this Court on certificate.
HELD: (i) There is a presumption that the entries in Riwaj-i-am are
correct and if there is a conflict between Rattigan's digest and the Riwaj-iam, normally the Riwaj-i-am of the locality prevails.
(ii) Under the customary law of the Jats in Amritsar District when
the customary adoption is formal
and the adopted son
is completely
transplanted in the family of his adoptive father,. he is entitled to succeed
to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amritsar District, i.s supported by judicial
deciswns, and is not in conflict with Art. 49 of Rattigan's Digest. On
the other hand if the customarjr adoption amounts to a mere appointment
of an heir, the appointed heir is not entitled to succeed to the coUateral
relatives of the adoptive father.
This finding is in harmony with Art. 49
of the Rattigan'• Digest and the judicial decisions, and is consistent with
the Riwaj-i-am properly interpreted in the light of the decided cases.
[398 C, DJ
(iii) It is a question of fact in each case whether the adoption by a
Jat in the Amritsar District is formal or informal. The adoption is formal
if the parties manifest a clear intention that there should be a complete
change of the family of the adopted son, so that he ceases to be a member
of his natural family and lose his right of collateral succession in the
family and at the same time becomes a member of the adoplive father's
family and acquires a right of collateral succe~ion in the family.
The
losse.. of the right of collateral succession in the natural family is strong
evidence to show that the adoption is formal and effects a complete change
394
SUPREME COURT
REPORTS
[1966] 3 S.C.R.
in the family.
On the other hand retention of the ri$ht of collateral
succession in his natural family indicates that the adopl!on was informal
by way of customary appointment of an heir.
[398 E-GJ
(iv) In the present case the courts bad found, and the finding was
amply supported by materials on the record, that the adoption of K was
no more than a mere appointment of an heir by the custom of rhe Jats
in the District of Amritsar.
The onus to show otherwise was on the re&-
pondents.
The fact lhat K succeeded to the lands left by his natural
brother and by one of the collaterals of his narural family stroogly indicated rhat the adoption of M did nor effect a change in his family. K's
adoption not being a formal one, he could
not be a preferential heir to
S.
[398 H; 399 DJ

## Text

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KEHAR SINGH & ORS •
v.
DEWAN SINGH & ORS.
January 21, 1966
[K. SUBBA RAO, M. HIDAYATULLAH AND R.S. BACHAWAT, JJ.]
Cus1on1-Jats of Amritsar District-Adoptio11r--Diffefence between adoption as heir and formal adoption-Test of formal adoption-Severence of
ties with natural family-Rlght of p·erson adopted to the property of co/.
laterals of adopting family.
The revenue authorities sanctioned mutation of the lands left by S,
an Aulakh Jat of Tehsil Ajnala in Amritsar District of the Punjab, in
favour of the appellants who were collaterals of S in the 8th degree. A
suit for possession of the said lands was filed against them by the respondents who claimed the lands as descendants of K.
According to them
K Wa5 the daughter's son of M, a collateral of S in the 5th clegrce, and
had been formally adopted by M as his son.
The trial court held that
the adoption of K was the usual customary appointment of an heir and
that by the custom Of Jats in Amritsar District
an appointed heir was
entitled to succeed collaterally in the family of his adoptive father anc!.
consequently K was the preferential heir to S.
The first appellate court
agreed with the trial court that the adoption of K was the customary appointment of an hei"r, but rejected K's claim to be preferential heir on
various grounds.
The High Court in second appeal held that under the
customary law K, as the adopted son of M was entitled to succeed collaterally in his adoptive father's family; on this view it restored the trial
Court's decree.
The appellants came to this Court on certificate.
HELD: (i) There is a presumption that the entries in Riwaj-i-am are
correct and if there is a conflict between Rattigan's digest and the Riwaj-iam, normally the Riwaj-i-am of the locality prevails.
(ii) Under the customary law of the Jats in Amritsar District when
the customary adoption is formal
and the adopted son
is completely
transplanted in the family of his adoptive father,. he is entitled to succeed
to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amritsar District, i.s supported by judicial
deciswns, and is not in conflict with Art. 49 of Rattigan's Digest. On
the other hand if the customarjr adoption amounts to a mere appointment
of an heir, the appointed heir is not entitled to succeed to the coUateral
relatives of the adoptive father.
This finding is in harmony with Art. 49
of the Rattigan'• Digest and the judicial decisions, and is consistent with
the Riwaj-i-am properly interpreted in the light of the decided cases.
[398 C, DJ
(iii) It is a question of fact in each case whether the adoption by a
Jat in the Amritsar District is formal or informal. The adoption is formal
if the parties manifest a clear intention that there should be a complete
change of the family of the adopted son, so that he ceases to be a member
of his natural family and lose his right of collateral succession in the
family and at the same time becomes a member of the adoplive father's
family and acquires a right of collateral succe~ion in the family.
The
losse.. of the right of collateral succession in the natural family is strong
evidence to show that the adoption is formal and effects a complete change
394
SUPREME COURT
REPORTS
[1966] 3 S.C.R.
in the family.
On the other hand retention of the ri$ht of collateral
succession in his natural family indicates that the adopl!on was informal
by way of customary appointment of an heir.
[398 E-GJ
(iv) In the present case the courts bad found, and the finding was
amply supported by materials on the record, that the adoption of K was
no more than a mere appointment of an heir by the custom of rhe Jats
in the District of Amritsar.
The onus to show otherwise was on the re&-
pondents.
The fact lhat K succeeded to the lands left by his natural
brother and by one of the collaterals of his narural family stroogly indicated rhat the adoption of M did nor effect a change in his family. K's
adoption not being a formal one, he could
not be a preferential heir to
S.
[398 H; 399 DJ
Case law referred to.
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OvII. APPELLATE JURISDICllON : Civil Appeal J-;o. 429 of c
1963.
Appeal from the judgment and decree dated October 6, 1958
of the Punjab High Court in Civil Regular Second Appeal No.
340 of 1953.
Gopa/ Singh, for the appellants and respondent No. 11.
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N. N. Keswani, for respondent No. I.
The Judgment of the Court was delivered by
Bachawat, J. : The parties arc Aulakh Jats of Tehsil Ajnala
in Amritsar District, and are governed by customary law in matters
of succession and adoption. 'The dispute concerns succession to the
property of one Santa Singh alias Din Mohammad. Santa Singh
has not been heard of for a long time and is presumed to be dead.
The revenue authorities sanctioned mutation of the lands left by
him in favour of the defendants, who are his collaterals of the 8th
degree.
One Megh Singh was the collateral of Santa Singh in the
5th degree.
Megh Singh died more than 50 years ago. Before
his death, he adopted his daughter's son, one Kala Singh. Kala
Singh has died leaving his sons, Dewan Singh and Gian Singh as
his heirs. Dewan Singh and Gian Singh instituted a suit in the
Court of the Subordinate Judge, First Class, Ajnala praying for
a decree for possession of the lands left by Santa Singh and alleging that Megh Singh adopted Kala Singh as his son, took him out
of his natural family, transplanted him completely in the family of
Mcgb Singh and bestowed on him the rights of a natural son, according to the custom by which the parties were governed, Kala
Singh was entitled to succeed as a rcversionary heir in the family
of his adoptive father and was the preferential heir of Santa Singh.
The contesting defendants alleged that the adoption of Kala Singh
amounted to the appointment of an heir only and they denied that
according to custom Kala Singh was the reversionary heir of Santa
Singh or entitled to inherit his lands.
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KEHAR SINGH v. DEWAN SINGH (Bachawat, !.)
395
The Subordinate Judge, Ajnala and the District Judge, Amritsar concurrently held that the adoption of Kala Singh was the usual
customary appointment of an heir. The trial Court also held that
by the custom of Jats in Amritsar District an appointed heir was
entitled to succeed collaterally in the family of his adoptive father
and consequently, Kala Singh was the preferential heir of Santa
Singh. On appeal, the District Judge, Amritsar set aside the
decree passed by the trial Court, and dismissed the suit. He held
that according to custom, the adoption of a daughter's son was not
permissible and the adoption of Kala Singh was, therefore, invalid.
He also held that under the customary law an adopted son could not
succeed collaterally in his adoptive father's family if he was a
non-agnate, i.e., if he did not belong to the Got of his adoptive
father. On second appeal, the High Court set aside the order of the
District Judge, Amritsar, and restored the decree passed by the trial
Court. The High Court, held that it was not open to the defendants to challenge the validity of the adoption of Kala Singh, as
the point was not in issue between the parties, and under the customary law, Kala Singh, as the adopted son of Megh Singh, was
entitled to succeed collaterally in his adoptive father's family .
Some of the defendants now appeal to this Court on a certificate
granted by the High Court.
In agreement with the High Court we hold that it is not open
to the defendants to contend that the adoption of Kala Singh by
Megh Singh was invalid. In the written statement, the defendants
did not allege that Megh Singh had no power to adopt Kala Singh,
as Kala Singh was the daughter's son of Megh Singh. As the
validity of the adoption was not in issue, the parties had no opportunity to lead any evidence on the question whether by the special
custom of the parties Megh Singh could lawfully adopt his daughter's
son.·
The substantial point in controversy between the parties is
whether by the custom governing the fats of Amritsar District
Kala Singh was entitled to succeed collaterally in the family of his
adoptive father. Some general customs as to adoption are found to
exist in the Punjab, and they are collected in Rattigan's Digest of
Customary Law. Some of the customs observed in the several
Districts and Tehsils of the Punjab are collected in the Riwaj-i-am.
There is a presumption that the entries in the Riwaj-i-am are correct, and if there is a conflict between Rattigan's Digest and the
Riwaj-i-am, normally the Riwaj-i-am of the locality prevails, see
Jai Kaur v. Sher Singh (I), Sa/ig Ram v. Munshi Ram (2).
Judicial
decisions furnish reliable instances in which the custom in question
was recognised or departed from.
Oral and documentary evidence
of mutations and other transactions in which the custom was
(I) (1960] 3 S.C.R. 979.
(2) [1962] l S.C.R. 470, 474-475.
396
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
recognised or departed from are also relevant material to prove or
disprove the custom.
A customary adoption in the Punjab is ordinarily no more than
a mere appointment of an heir creating a personal relationship
between the adoptive father and the appointed heir only, see Mela
Singh v. Gurdas (1). There is no tie of kinship between the appointed heir and the collaterals of the adoptive father. The appointed heir docs not acquire the right to succeed collaterally in the
adoptive father's family.
The status of the appointed heir is thus
materially different from that of a son adopted under the Hindu
law.
The general custom negativing the right of the appointed heir
to succeed collaterally in the family of his adoptive father is stated
in Art. 49 of Rattigan's Digest of Customary Law, 13th Edn .. p.
572 thus :
"49.
Nor, on the other hand, does the heir acquire
a
right
to
succeed to
the collateral
relatives
of
the person who appoints him, where no formal adoption has taken place, inasmuch as the relationship established between him and the appointer is a purely personal
one."
The rule in Art. 49 does not apply to a formal adoption by the
customary method. The customary formal adoption completely
severs the connection of the adopted son with his natural family
and transplants him from his natural family to the adoptive family.
Such an adoption confers on the adopted son the right of collateral succession in the adoptive father's family and takes away the
right of collateral succession in the natural family.
The formal
adoption may be made in accordance with custom and by observing
the customary forms, and it is not necessary to comply with the
rules of Hindu law in the matter of ritual or otherwise.
See
Abdur Rehman v. Ra1<f111bir Singh (2), Warya111a11 v. Kanshi Ram (l).
The Manual of Customary Law of the Amritsar District by
H. D. Craik in 1914 records the following question and answcr·-
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"Question 91-·Can an adopted son succeed collaG
terally in the family of his adoptive father ?
Answer 91.
All the tribes state that an adopted son
succeeds collaterally in the family of his adoptive father,
with the exception of Brahmans and Khatris of Neshta,
who say that he docs not do so.
The rule defined by the
courts, however, is that an adopted son has no right to
----
(1) Jl92lJ I.LR 3 Lah. 362 F.B.
(2) 11949] 51 P.L.R. 119.
tl) 11922] I.LR. 3 Lah. 17
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KEHAR SINGH v. DEWAN SINGH (Bachawat, !.)
397
succeed in this manner. The latest ruling on this point is
P.R. 107 of 1913 in which it was held that among Jat
Sikhas of the Taran Taran tehsil an adopted son, appointed
by the usual customary method, does not succeed to collaterals as his adoptive father's representative."
The English translation of the Urdu version of the Riwaj-1-am
of the Amritsar District for the year 1940 (Ex. P. C/l) records the
following question and answer :-
·
No. of
question
90
Question
Can an adopted son
succeed· collaterally
in the family of his
adoptive father ?
Answer
All the tribes, yes.
See Schedule I for
relevant mutations.
See Schedule II for
judgments
in Civil
cases.
Schedule I annexed to Ex. P.C./l gives 17 instances of mutations on collateral successions of adopted sons in the family of
the adoptive father. Schedule ll annexed to Ex. P.C./l is not printed
in the paper book. The English version of the Rhvaj-i-am of the
Amritsar District published by A. MacFARQUHAR in 1947
gives the list of the relevant judicial decisions bearing on question
90. The decided cases show that where the adoption is by way of
a customary appointment of an heir, the adopted son does not
succeed collaterally in the adoptive father's family.
The latest
Riwaj-i-am refers to the Court rulings without disapproval. In
the light of the decided cases, the entries in the Riwaj-i-am recognising the adopted son's right of collateral succession in the adoptive
father's family should be taken to apply to cases of customary
formal adoptions and not to cases of adoptions by way of customary
appointments of heirs.
The relevant judicial decisions may be briefly noticed.
In
Jowala Singh v. Mt. Lachmi and others(!) (Gil Jats of Tehsil Ajnala,
Amritsar), Mangal Singh v. Ti/ok Singh (2) (Sohel Jats of Tehsil
Ajnala, Amritsar), Chetu v. Jawand Singh and others (3) (Sikh Jats
of Tehsil Taran Taran, Amritsar), it was held that an heir appointed under the customary law of Jats in the District of Amritsar
does not acquire a right to succeed to the collaterals of the adoptive father, and in Jndar Singh v. Mt. Gurdevi (4) (Amritsar Jats),
it was held that he was not a lineal descendant of the adoptive father
within the meaning of s. 59 of the Punjab Tenancy Act XVI of 1887.
(I) 14 P.R. of 1884.
(3) 107 P.R. of 1913.
(2) 61 P.R. of 1894.
(4) A.1.R. 1930 Lah. 897.
398
SUPREME COURT
REPORTS
[ 1966] 3 S.C.R.
Conversely, the appointed heir retains the right of collateral sueA
cession in his natural family.
See Jagat Singh v. Jshar Singh ()
(Amritsar Jats). On the other hand, according to the customs of
Jats in the Amritsar District, in a case of a formal adoption effecting
a complete transplantation of the adopted son in the adoptive
father's family, the.adopted son is entitled to inherit collaterally in
the adoptive father'& family. See Teju v. Kesar Singh (2), affirming
B
the decision of Kapur, J. in Teja Singh v. Kesar Singh (3).
We thus find that under the customary law of Jats in Amritsar
District, where the customary adoption is formal and the adopted
son is completely transplanted in the family of his adoptive father,
lie is entitled to succeed to the collateral relatives of the adoptive
father. This finding is in harmony with the Riwaj-i-am of the AmritC
sar District, is supported by judicial decisions, and is not in conflict with Art. 49 of Rattigan's Digest.
On the other hand, if the
customary adoption amounts to a mere appointment of an heir,
the appointed heir is not entitled to succeed to the collateral
relatives of the adoptive father. This finding is in harmony with
Art. 49 of Rattigan's Digest and the judicial decisions, and is conD
sistent with the Riwaj-i-am properly interpreted in the light of the
decided cases.
Jn Teju v. Kesar Singh (2), it was said that the ordinary rule in
Amritsar District is that the adoption is complete. Jn other cases,
it was said that ordinarly such an adoption is by way of a customary
appointment of an heir. The true rule appears to be that it is a
question of fact in each case whether the adoption by a Jat in the
Amritsar District is formal or informal. The adoption is formal
if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases
to be a member of his natural family and loses his right of collateral
succession in that family and at the same time becomes a member
of the adoptive father's family and acquires a right of collateral
succession in the family.
The loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the
other hand, retention of the right of collateral succession in hi3
natural family indicates that the adoption was informal by way of
customary appointment of an heir.
The onus is upon the plaintiffs-respondents to prove that the
adoption of Kala Singh was formal and effected a complete change
in his family.
On the death of the adoptive father Megh Singh,
Kala Singh inherited the properties of Megh Singh, and on the death
of Kala Singh, his sons, Gian Singh and Dewan Singh, inherited
those properties.
But these successions arc consistent with the
(ll I.LR 1l Lah. 645.
(2) A.l.R. 1954 Punjab 30.
(3) A.I.R. 1951 Punjab 117.
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KEHAR SINGH V. DEWAN SINGH (Bachawat, J.)
399
informal ~ppointment of Kala Singh as an heir to Megh Singh.
According to custom, the appointed heir succeeds to the properties
left by the adoptive father, and on the death of the appointed
heir, his male issue succeeds: see Rattigan's Digest of Customary
Law, 13th Edn., Arts. 52 and 54, pp. 572-573. The succession of
Kala Singh as the reversionary heir of one Mst. Bhagan is cited
as an illustration of collateral succession of the adopted son in
his adoptive father's family in the list of mutations given in Sch.
1 of the Riwaj-i-am of 1940 (Ex. P.C./l). But the oral testimony
on the record of this case discloses that Mst. Bhagan, who was the
widow of a predeceased son of Megh Singh, was given some land
by Megh Singh for her maintenance, and on her death, Kala Singh
succeeded to this land. It will appear, therefore, that Mst.
Bhagan got a life estate in this land, and on her death, the land
reverted to Kala Singh as the adopted son of Megh Singh. The
succession of Kala Singh to this land is, therefore not an instance
of collateral succession of Kala Singh in his adoptive father's
family, and this was fairly conceded by learned counsel for the respondents. Considering all the circumstances of the case, the trial
Court and the first Appellate Court concurrently found that the
adoption of Kala Singh was by way of customary appointment
of an heir to Megh Singh. On second appeal, the High Court
did not interfere with this finding. The finding is amply supported by the materials on the record. It appears that after his
adoption Kala Singh succeeded to the lands left by one Makhan,
his natural brother and by one Hira Singh, his ~ollateral in his
natural family. These collateral successions m the natural
family strongly indicate that the adoption of Kala Singh did not
effect a change in his family. The adoption of Kala Singh was no
more than a mere appointment of an heir and by the custom
of the fats in the District of Amritsar he was not entitled to succeed
collaterally in his adoptive father's family.
For this reason, the
suit out of which this appeal arises, must be dismissed.
The District Judge, relying on Mangat Singh v. Tilok Singh(')
held that as Kala Singh was not an agnate of his adoptive
father, he was not entitled to succeed collaterally in his adoptive
father's family, even assuming that his adoption was valid. This
aspect of the matter was not considered by the High Court at all.
In view of our conclusions on other points, we do not express
any opinion on this point.
We allow the appeal, set aside the decree passed by the High
Court, restore the decree passed by the District Judge of Amritsar
and direct that the suit be dismissed. The parties will pay and
bear their own costs throughout.
Appeal allowed.
(1) 61 P.R. 1894.