BASANT SINGH Vs. BRIJ RAJ SARAN SINGH

JUDGEMENT

(1.) These are consolidated appeals from four decrees of the High Court of Judicature at Allahabad, dated the 16 January 1929, which substantially reversed a decree of the Additional Subordinate Judge of Meerut, dated 2 March, 1925. The property in suit is the Sahanpur estate situated in the District of Meerut, and the last male holder was Kunwar Khushal Singh, a Hindu Jat, who died on 6 August 1879, leaving surviving him a Widow, Rani Raghubir Kunwar, who died on 24 November 1920. The present suit was instituted on 1 May , 1923. The right of succession to the estate lies between the plaintiff-appellants 1 to 5, who are now admitted to be the nearest reversioners, and the original respondent in the leading appeal, Kunwar Brijraj Saran Singh, defendant 1 in the suit, who is now deceased, and whose representative is now respondent. Defendant 1 was in possession, and claimed as adopted son under an adoption made by the said Rani on 13 April 1903. The fact of the adoption is not disputed, but its validity is challenged by the appellants, and this forms the main issue in the appeal. The remaining plaintiffs and defendants claim under-rights derived from plaintiffs 1 to 5 and defendant 1 or Rani Raghubir Kunwar respectively, but no separate question arises as to their rights unless the appeal succeeds.

(2.) The validity of the adoption of defendant 1 is challenged in respect of (1) the widow's authority to adopt, and (2), the fact that defendant 1 was an orphan at the time of his adoption. Khushal Singh was the adopted son of Raja Nahar Singh of Ballabgarh in the Delhi District, at that time in the North Western Provinces. Nahar Singh joined the mutineers during the Mutiny and was hanged ; his estate was confiscated in 1858 by the Government, who granted allowances to his dependants on condition that they left their home. Khushal Singh migrated to Kuchesar, a large estate in the Bulandshahr and Meerut districts, and married Bhup Kunwar, the daughter of Gulab Singh, the last male owner of that estate. On the death of Bhup Kunwar about 1859, there was litigation amongst various claimants to the estate, including Khushal Singh, which ended in a compromise, which was recorded in a decree dated 29 May 1868, and under which a 5 annas share was carved out of the estate and allotted to Khushal Singh and was thereafter known as the Sahanpur estate, the succession to which is now in dispute. After the compromise Khushal Singh married Rani Raghubir Kunwar, who was the daughter of Umrao Singh, to whom a 6 annas share had been allotted under the compromise, which retained the name of the Kuchesar estate. The remaining 5 annas share went to one Partab Singh, and is known as the Muhiuddinpur estate. It is alleged that on 26th July 1879-eleven days before his death-Khushal Singh executed a will, under which, by para. 3, he gave authority to his widow to adopt a boy, in the event of his having no son or adopted son living at his death, in accordance with the custom prevailing among the Jats, in the first place from the family of the present rais of Kuchesar ; in the second place a descendant of Rao Maharaj Singh, resident of Muhiudinpur, and in the event of this being impossible, in the third place, any boy belonging to the brotherhood. She should bring up the boy, educate him and perform his marriage. From the time of adoption that son shall be like the begotten son of my wife and me. But when a boy of one family has been adopted, a boy of another family shall not have any right to urge his claim for being adopted.

(3.) That authority is in terms narrated in the deed of adoption of defendant 1 of 13 April 1903. The original will has not been produced, but a copy has been produced, which was made in 1897, under circumstances which will be referred to later. Khushal Singh and his family were Hindu Jats, and the appellants maintain that they were governed by the Mitakshara law, under which the adoption of an orphan is admittedly invalid. But the respondents maintain that, at the time of his migration in 1858, Khushal Singh was governed by the customary law of the Delhi district, that he carried it with him to the Meerut district, and retained it till his death. It is not disputed that if the customary law applied to Khushal Singh when he left the Delhi district in 1858, he retained it till his death. The appellants however maintain that the customary law did not apply to Khushal Singh in 1858, on two grounds, namely, that its application was limited to agricultural village communities among the Jats, and that, in any event, it did not apply to Nahar Singh, who was a ruling chief with sovereign powers, or his family. On the assumption that the customary law did apply to Khushal Singh and his family, the respondents maintain that, under that law, (a) the adoption of an orphan is allowed, and (b) failing proof of the authority to adopt in the will, the widow was entitled to adopt without authority or consent as regards self-acquired property, which the estate in suit is admitted to have been. The appellants maintain that the adoption of defendant 1 was not valid under the customary law, in respect that admittedly he was not of the same gotra as Khushal Singh.