TARA CHAND Vs. RAM AVTAR

JUDGEMENT

(1.) RAM Autar minor plaintiff-respondent, the adopted son of Prabhu defendant-respondent filed a suit on April 15, 1961, for a declaration to the effect that the parties being Ahirs belong to an agricultural tribe and arc governed by Customary Law in matters of adoption according to which an issueless proprietor can adopt someone from amongst his collaterals and in the presence of such an adopted son, the adoptive father is not competent to dispose of his ancestral property otherwise than for consideration and legal necessity, and that in view of the said custom his adoptive father Prabhu defendant was not competent to make the gift of vacant land with some kolhas and haveli on it, which was ancestral property. On that ground he challenged the binding nature of the gift made by Prabhu defendant in favour of his brother Tara Chand defendant-appellant on March 10, 1961. The plaintiff-respondent while claiming a declaratory decree about the impugned gift being null and void, and, therefore, having no effect on his reversionary rights after the death of his adoptive father, also sought a decree for perpetual injunction restraining Prabhu from disposing of his remaining ancestral property.

(2.) THE suit was contested by the donor as well as the donee. From the pleadings of the parties the trial Court framed the following seven issues :- -

(3.) IN this second appeal filed by Tara Chand donee-defendant, Chaudhry Roop Chand has pressed only two points. He has first submitted that the suit from which this appeal has arisen should have been held to be barred under Section 13 of the Hindu Adoptions and Maintenance Act (78 of 1956) (thereinafter called the Act ). His argument is that as Section 4 of the Act inter alia directs that save as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act, the provisions of this Act have the effect of repealing or overriding any other law or usage having the force of law. He then argued that since Section 13 of the Act confers on the adoptive father the power to dispose of his property by transfer inter vivos or by will, the effect of any customary adoption to the contrary is abrogated by Section 13. That section reads : "subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. '' Counsel has referred to the judgment of a Division Bench of this Court in Smt. Banso v. Charan Singh, 1960-62 Pun LR 865 = (AIR 1961 Punj 45) in support of the proposition that Section 4 of the Act has overriding effect. In the case of Smt. Banso (supra ). Section 4 of the Hindu Succession Act (30 of 1956) was interpreted to give overriding effect against the rules of succession under the Punjab Customary Law "in cases where succession opens after the coming into force of that Act". There is no difficulty in interpreting the meaning, effect and scope of Section 4 of the Act. On going through the provisions of the Act it appears to me, however, that the whole scheme of the Act is such as is not to have any effect on adoptions which had been made before the Act came into force except in any matter for which definite provision to the contrary is made. Chapter II of the Act deals with adoptions.) Section 5 which regulates adoptions clearly refers to adoptions made after the commencement of the Act. Section 6 containing the requisites of a valid adoption Section 7 inferring to the capacity of a male Hindu to take in adoption. Section 8 dealing with the capacity of a female Hindu to take in adoption. Section 9 which enumerates the persons capable of giving in adoption, Section 10 which contains a list of persons who may be adopted. Section 11 which provides other conditions for a valid adoption, and Section 12 which contains the effects of adoption appear to me to deal with only such adoptions as are: referaed to in Section 5, that is adoptions made after the coming into force of the Act. Judged from this scheme of the Act. it would appear that the provisions of Section 13 are also intended to apply to only those adoptions which are referred to in Section 5. The expression "adoption" in Section 13 is referable to the adoption mentioned in Sub-section (1) of Section 5. Even if there could be some doubt in confining the scope of Section 13 to post Act adoptions by a process of interpretation, the doubt seems to have been laid at rest by the express provision of Section 30 of the Act That section is in the following terms:-