MANGAL SINGH Vs. DOGAR SINGH

JUDGEMENT

(1.) This second appeal is directed against the decision of the lower appellate Court reversing on appeal the decision of the trial Court dismissing the plaintiff's suit.

(2.) Raju adopted Dogar Singh, his sister's son, on 11th October, 1933. He made a will on 27th July, 1939 in favour of his collateral. In this will it was provided that on his death his entire property would be inherited by his collateral to the exclusion of his adopted son Dogar Singh. It is also recited in the will that he was cancelling the will already made in favour of Dogar Singh. Raju died on 20th June, 1950, and on 8th October, 1956, the present suit was filed for possession of the estate left by Raju. The defendant collateral had taken possession of the estate under the will of Raju. The plaintiff's contention was that he being an adopted son could not be disinherited in view of para 51 of Rattigan's Digest of Customary Law, the parties being governed by custom. This contention did not prevail with the trial Court and the suit was dismissed. On appeal, in view of the decision of this Court in Amar Singh V/s. Bikar Singh, 1957 59 PunLR 146, the appeal was allowed and the suit was decreed. The facts of Amar Singh's case are identical with the facts of the present case and in similar circumstances Chopra, J. took the view that the will amounted to total disinheritance and this could not be done in view of para 51 of Rattigan's Digest of Customary Law, a book of unquestioned authority as observed by the Privy Council in Mr. Subhani V/s. Nawab, 1941 AIR(PC) 21. It is against this decision of the lower appellate Court that the present second appeal has been preferred by the defendant.

(3.) The argument of Mr. D.N. Aggarwal for the appellant is that the relationship created by the adoption is purely a personal relation under the customary law. The adopted son does not become the grandson of the adopter's father nor does he lose his right of collateral succession in his natural family. Any alienation by the adopter cannot be challenged by the adoptee. In view of these considerations it is argued that the adopter could make a will disposing of his entire estate leaving the adopted son with nothing to succeed to. It is true that all these factors are there in the case of an appointment of an heir, but the customary rule is also firmly settled that an adoptive father cannot disinherit the adopted son or otherwise cancel the adoption. Once the adoption is validly made, then neither the adoptive father nor the adopted son can undo the adoption. The reason why the adopted son cannot be disinherited is that by reason of adoption he loses his right of succession to his natural father in the presence of his natural brothers. Therefore, it appears that the customary law places an embargo on the rights of the adoptive father to disinherit the adopted son. In any case, the question in all these cases is whether the act of the adoptive father in disposing of his property amounts to disinheritance or not. That is a question of fact and has to be determined on the facts and circumstances of each individual case. In the present case, the lower appellate Court came to the conclusion on facts that the will of Raju in the year 1939 amounted to complete disinheritance and that being so it is invalid, being, against the rule of custom set out in para 51 of Rattigan's Digest of Customary Law. This was the view which Mr. Justice Chopra also took in Amar Singh's case, and I am in respectful agreement with that decision.