BAKHSHISH SINGH Vs. KEWAL SINGH AND OTHERS

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree of the District Judge, Hoshiarpur, dated the 17th July, 1963, whereby the judgment and decree of the Subordinate Judge Second Class, Dasuya, dated the 9th November, 1962, dismissing the plaintiff's suit was upheld and the plaintiffs' appeal was dismissed. The dispute relates to the properly left by one Udham Singh son of Mehtab Singh who died in April, 1961. Kewal Singh respondent is the son of Ram Chand brother of Udham Singh. After the death of Udham Singh, Kewal Singh entered into possession of the property. Bakhshish Singh, Harnam Kaur and Gian Kaur who are the brother and sisters of Udham Singh respectively, being aggrieved by the act of Kewal Singh of taking possession of the property, filed a suit for possession for their share of the property left by Udham Singh. The defence taken by Kewal Singh was that he had been adopted by Udham Singh as a son and that this adoption was finally confirmed by a registered adoption deed dated the 28th July, 1960. A number of issues were raised in the trial Court, but ultimately before the appellate Court the decision only re red on the question whether Kewal Singh had been validly adopted as a son to Udham Singh or not. The learned trial Court had found that Kewal Singh had been validly adopted and this finding was upheld by the learned District Judge.

(2.) IN second appeal, when the appeal first came up for hearing, an application under Order VI rule 17 of the Civil Procedure Code was made. A contention was raised by the appellants that a person who was above fifteen years of age and one who was married could not be adopted unless there was a special custom to that effect it was pointed out that as these circumstances had not been established the adoption of Kewal Singh was not valid. In this situation, the defendant -respondent Kewal Singh filed an application for amending the written statement and for claiming an issue on its basis This application was allowed by order dated the 12th November, 1973, and the case was remanded to the trial Court for framing an additional issue on the basis of the amended written statement and to try that issue. After remand the additional issue was framed by the trial Court and it was found that according to custom by which the parties were governed a person above the age of fifteen years as well as a person who is married could be adopted. The appellant filed objections against this finding and the learned District Judge by order dated the 3rd May, 1974, disposed of these objections, upholding the view adopted by the trial Court.

(3.) WHILE challenging the above decision the principal argument raised on behalf of the appellants is that the learned Courts below had erred in not considering that the respondent was to establish that the family custom permitted the adoption of a married person or a person above the age of fifteen years. The argument, to say the least, is wholly misconceived Under section 10 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act) a person who is married or who has completed the age of fifteen years cannot be adopted "unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption". All that sub -sections (iii) and (iv) of section 10 requires is that a custom should permit such adoption and not that there has to be a special custom or a family custom to that effect No doubt in section 3(a) of the Act the expressions "custom and usage" have been defined to signify a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, but this definition does not help the argument advanced on behalf of the appellants that the custom or usage, to which reference is made in clauses (iii) and (iv) of section 10, should be a family custom or a special custom. A custom or usage can be family custom or one applicable to any areas tribe or community. All that is required to be proved under section 10 is that the custom which is applicable to the party, whether it is a family custom or tribal custom, permits the adoption of married persons or persons above the age of fifteen years.