KARTAR SINGH MINOR Vs. SURJAN SINGH DEAD

JUDGEMENT

(1.) The appellant was adopted by Maghi Singh his grand-father's brother. Maghi Singh also executed a deed of adoption. After his death another brother of Maghi Singh, the 1st respondent, filed the suit, out of which this appeal arises, questioning the adoption and claiming a half share in Maghi Singh's property. The suit was dismissed by the Trial Court but the first Appellate Court held that the ceremony of giving and taking had not taken place and allowed the appeal. In Second Appeal Justice Khanna of the Punjab High Court, as he then was, held that the giving and taking had taken place and rejected an argument that even 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 because Maghi Singh was governed by customary law. A Division Bench of the Punjab and 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.

(2.) In the plaint it was alleged that there was no ceremony of adoption performed nor was the appellant treated as Maghi Singh's son. It was also alleged that Maghi Singh was not in his sense when he executed the adoption deed. As the learned Single Judge as well as the Division Bench have concurrently held that the ceremony of giving and taking did take place, it is unnecessary to go into that question. The deed of adoption refers to the giving and taking. It also says that this was done before the brother-hood 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 the 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 Singh 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 to Maghi Singh, because customary law also recognises formal adoption resulting in change of family. It is not as if customary law 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 a custom of appointing a heir, the heir so appointed not ceasing to be a member of the family of his birth and not becoming a member of the family of the person who appoints him as his heir. There was also the more formal adoption 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 became a member of the adoptive family used to arise in the case of collateral succession. An appointed heir cannot succeed to the collaterals of the person who appointed him as his heir but an adopted son would succeed to the collaterals of the adoptive father. In Abdur Rehman Khan v. Raghbir Singh, (1949) 51 Pun LR 119, the custom in Punjab is set out likely is:

(3.) It would be noticed that even according to the customary law of Punjab there was a special custom under which adoption attached to it all the consequences which flow from full and formal adoption under Hindu Law.