HARI SINGH Vs. MAGHA SINGH

JUDGEMENT

(1.) The suit property belonged to one Kanhaya, a blacksmith of village Lohar, in the district of Jullundur. On Kanhays's death the revenue authorities mutated his land in favour of Hari Singh on the ground that he was Kanhaya's adopted son. The plaintiffs who were the collaterals of Kanhaya brought a suit for possession of half the suit property alleging that they and Hari Singh being the collaterals of Kanhaya in equal degree, they were entitled to one-half of the property. Hari Singh resisted the suit on the grounds inter aha that he was the adopted son of Kanhaya and in his presence the plaintiffs could not succeed to any of the property left by him. The trial Sub-Judge holding that Hari Singh's adoption had not been proved decreed the plaintiffs claim for one half of the property which he found to be ancestral. On appeal the District Judge upheld the judgment and decree of the trial Court. Against the decree of the District Judge both sides preferred further appeals to the High Court, Lahore. The Bench took the view that the Courts below had erred in deciding the question relating to the factum and validity of adoption on the strength of Hindu law and in not paying any attention to the plea urged on behalf of Hari Singh that parties were governed by Customary law. Accordingly it remanded the case for the trial of the following two additional issues framed by it: 1. Whether the parties are governed in matters of adoption by Customary law?

(2.) It the answer to issue 1 is in the affirmative, whether the adoption alleged was valid? Both the trial Court and the learned District Judge have returned their findings in Hari Singh's favour. To these findings the plaintiffs have put in objections. 2. Before proceeding, it is necessary to dispose of the preliminary objection raised by Hari Singh's counsel that the plaintiff's objections were barred by time, inasmuch as they were not preferred within the time allowed by the Bench. The order of the Bench was that ten days would be given to each of the parties to file objections to the findings of the District Judge. The report of the District Judge is dated 8 March 1947 but the date given under the memo of costs which accompany the report is 18 March. This shows that the report could not have been submitted to the High Court before 18 March and could not have reached that Court before 19 in any case. The objections were put in on 26 March. They are, therefore, within time.

(3.) The finding of the Court below that Kanhaya was governed by agricultural custom is supported by voluminous evidence and learned Counsel for the plaintiffs made no effort to challenge it. This leaves us only with issue 2 framed by the Bench of the Lahore High Court. The trial Court thought that all that it was required to decide was whether the alleged adoption of Hari Singh by Kanhaya was valid according to custom and that as the issue stood it was not called upon to give any finding regarding the factum of adoption. The District Judge though he held that the trial Court's interpretation of the issue was correct and it was not its duty to decide whether or not Kanhaya had actually adopted Hari Singh as his son, nevertheless discussed the evidence relating to the adoption and found that the adoption was proved. Learned Counsel for the plaintiffs halfheartedly criticised the procedure adopted by the District Judge and maintained that in view of the words of issue 2 the District Judge had no business to record his opinion about the factum of adoption. I cannot say that the contention is wholly devoid of force, but since both sides had adduced whatever evidence was in their possession and it also appears that arguments regard, ing the factum of adoption were addressed before the learned District Judge by counsel for both sides there was nothing wrong in the District Judge's recording his opinion thereon particularly so when in order to decide whether or not the alleged adoption was valid according to custom it was necessary to find out what steps, if any, had Kanhaya taken in connection with the alleged adoption. But even if it be assumed that the finding of the learned District Judge on the factum of adoption was not strictly in order all that the plaintiffs learned Counsel could ask us to do was to go through the whole evidence bearing on the point and to arrive at an independent conclusion thereon, but when we allowed -, learned Counsel to take us through the evidence and to convince us, if he could, that no adoption had taken place as a matter of fact he frankly admitted that the evidence produced by Hari Singh in support of his adoption was simply overwhelming and there was no doubt that he was adopted by Kanhaya, that the adoption took place publicly and in the presence of the brotherhood, that after that Kanhaya executed a document declaring the adoption and treated Hari Singh as his son and heir throughout his life.