HARDEV SINGH AND ORS. Vs. GURDIAL SINGH

JUDGEMENT

(1.) THIS appeal has been referred to a Division Bench by a learned Single Judge of this Court for decision because fairly important questions are involved, namely, whether where parties are governed by custom a person whose adoption has been held not to have been proved can still succeed to the non -ancestral property of the adoptive father and whether the latter 's collaterals can successfully sue with regard to it after his death.

(2.) INDER Singh, a jat of village Chotian Thoba in Tehsil Moga of Ferozepore District, was the last male -holder of the land in dispute. He died in the year 1953 but before his death he had executed on 10th February, 1953, and got registered a document, Exhibit D. 1, which has been called the adoption deed. It was recited therein that Gurdial Singh who was one of his collaterals and was his nephew had been taken into adoption by him from the days of Gurdial Singh 's infancy. It was further stated that he had been residing for most part of his life in Malaya and he had called Gurdial Singh also to Malaya in 1931 where the latter stayed with him for about 5 to 6 years and then he was sent to India for getting married, all the marriage expenses having been defrayed by the adoptive father. After some years the adoptive father returned to India and continued paying all the expenses for maintenance, etc., of Gurdial Singh and treating him like a son. In order that the line of the adoptive father might be maintained after his death, the adopted son was to carry out all such duties as were enjoined by the religious usages so that the former 's soul might have peace. As no document in this respect had been executed until then and apprehending that after the death of the adoptive father some dispute might arise with regard to succession, the aforesaid document was being executed and it was 'being declared that Gurdial Singh was the validly adopted son (of Inder Singh) and that after his death he would be his lawful heir.

(3.) ONLY after three months of the death of Inder Singh a suit was filed in December 1953, by the Appellants who claim to be his collaterals within the fifth degree on the ground that they were entitled to succeed to his estate and not Gurdial Singh Respondent who was giving out that he was the adopted son. It was alleged that the property was ancestral. The validity and factum of adoption were challenged under the law and custom governing the parties. It was pleaded that the so -called adoption deed of 10th February, 1953, was a mere paper transaction which had not been acted upon. A decree for possession was claimed as also a declaration that the Appellants were entitled to succeed o the estate of Inder Singh and that the Respondent was not his adopted son and did not have any rights to the land in suit. The Respondent contested the suit inter -alia on the grounds that the Appellants were not the collaterals of the deceased and that he was his validly adopted son and further that the land was non -ancestral and the Appellants had no right to it. After framing and trying the issues which arose on the pleadings of the parties, the trial Court found that the Appellants were the reversioners of Inder Singh but that the land was non -ancestral and although the factum of adoption of the Respondent had not been proved, Inder Singh had nominated him as his successor and, thus the Appellants were not entitled to succeed.