Equivalent Citation- 1974 AIR 2161; 1975 SCR (1) 742; 1974 SCC (2) 559
Case type- Special Leave Petition
Case no.- Civil Appeal no. 1888 of 1974
Decided on- 16.08.1974
Petitioner- Kartar Singh (Minor) Through Guardian Bachan Singh
Respondent- Surjan Singh (Dead) And Ors
Justice- Hon’ble Justice A. Alagiriswami, and Hon’ble Justice P. Jaganmohan Reddy
Statues Referred- Hindu Adoptions and Maintenances Act, 1956- Section 4.
Cases referred- Abdhur Rehmani Khan & Ors v. Ragbhir Singh & Anr
Facts
- The appellant was adopted by Maghi Singh, his grand-father’s brother. Maghi Singh also executed a deed of adoption. After Maghi Singh’s death, another of his brothers, the 1st respondent, filed the suit, which is the subject of this appeal, challenging the adoption and seeking a half-share in Maghi Singh’s property. The claim was dismissed by the Trial Court, but the First Appellate Court upheld the appeal since the giving and taking ceremony had not occurred.
- In the Second Appeal, Justice Khanna of the Punjab High Court, as it was at the time, held that the giving and taking had occurred, rejecting an argument that even if the act of giving and taking had occurred, it was not with the intent of transferring the appellant from his birth family to Maghi Singh’s because Maghi Singh was governed by customary law. The Letters Patent Appeal against this ruling was accepted by a Division Bench of the Punjab & Haryana High Court, which found no indication of a purpose to transfer the appellant from his natural family to Maghi Singh’s.
Fact in issue
Whether the Maghi Singh had adopted the appellant as per the customary law or not?
Ratio decendi
- According to the plaint, no adoption ceremony was held, and the appellant was not treated as Maghi Singh’s son. Maghi Singh was also said to have been out of his mind when he signed the adoption papers. It is unnecessary to go into that subject because both the learned Single Judge and the Division Bench have held that the ritual of giving and taking took place. Adoption refers to the giving and receiving of a child.
- It also states that this was done before the village brotherhood, that Maghi Singh had adopted him as his son in accordance with custom, that he was his legal heir and representative, that he would be the owner and possessor of all of his property, and that the adopted son would perform all of his death rites. Even in the grounds of appeal before the District Judge, only the question of giving and taking was raised, and no mention was made of the fact that there was no intention to transfer the adopted son from his birth family to his adoptive family, a point that appears to have been raised for the first time before the learned single Judge of the High Court.
- The court believes that, the learned Single Judge, was correct in concluding that there was evidence of an intent to transfer the appellant from his natural family to that of Maghi Singh, and that the fact that Maghi Singh was governed by customary law at one time or that the adoption was stated to have been validly made in accordance with custom would not show that the intention at the time of the adoption was to transfer the appellant from his natural family to that of Maghi Singh. It’s not as if the adoption isn’t recognized under customary law.
- Before the Hindu Adoptions and Maintenance Act 1956 came into effect in Punjab, there was a custom of choosing an heir, with the heir so appointed remaining a member of his birth family and not becoming a part of the family of the person who names him as his heir. There was also the more official adoption, which was recognized by Hindu law and involved giving and receiving, as well as the adopted son becoming a member of the adoptive family. In the situation of collateral succession, the question of whether the adopted son becomes a member of the adoptive family used to arise.
- An assigned heir can’t inherit the collaterals of the person who named him as his heir, but an adopted son can inherit the collaterals of his adoptive father. According to Punjabi customary law, there was a particular custom called Linder, which had all the repercussions that come with full and legal adoption under Hindu law.
- The Division Bench’s erudite Judges failed to take into account the fact that the giving and taking ritual is symbolic of the adopted son being transplanted from his birth family to his adoptive family. In this regard, Mayne’s Hindu law (11th Edn) at page 226 quotes Manu as saying, “He whom his father or mother (with her husband’s permission) gives to another, etc, is recognized as a son given.” “He who is given by his mother with her husband’s agreement while her husband is absent or after her husband’s death, or by his father or by both being of the same class with the one to whom he is given, becomes his given son,” says the Mitakshara.
- On page 237, it is stated once more: “The giving and receiving of an adoption are both required for it to be valid. They are an important component of the ceremony since they are the part that passes the kid from one family to the next. However, when it comes to offering and accepting gifts, Hindu law does not provide a certain format. All that is required by law for a lawful adoption is for the natural father to be asked by the adoptive parent to give his son up for adoption and for the boy to be handed over and taken for this reason “.
- There is no longer any room for customary adoptions since the Hindu Adoptions and Maintenances Act of 1956 went into effect. Any text, rule, or interpretation of Hindu law, or any custom or usage as part of that law, in effect immediately before the commencement of the Act, shall cease to have effect with respect to any matter for which provision is made in that Act, according to Section 4 of the Act. As a result, the issue of any customary adoption, which existed in Punjab before to the Act’s enactment, is no longer relevant.
- The entire fallacy in the Division Bench’s reasoning is based on the notion that Maghi Singh only intended to appoint an heir since he mentioned custom. The terms “according to custom” in the document’s reference to Maghi Singh taking the appellant onto his lap from his parents and adopting him as his son can only refer to the adoption custom, as can the references to “custom” in two other places in the record. In three places, Maghi Singh uses the phrase “adopted son.” He refers to the document as an “adoption deed.”
- If the plaintiff had at least pleaded in the alternative that even if there might have been given, Maghi Singh intended to make an adoption according to law and not merely appoint an heir according to custom which prevailed before 1956 but had been abolished by the Hindu Adoption and Maintenance Act, there could have been no doubt that what Maghi Singh intended.
- It was hardly proper to allow the plaintiff to raise this issue without providing any supporting evidence, either in his pleadings or in his testimony. The entire case has been given a twist that has nothing to do with the evidence. Following the repeal of the customary law of adoption, whether formal or informal, there is no longer any area for debate concerning the legality of the adoption as long as the legal requirements are followed.
- The words “with intent to transfer the child from the family of its birth to the family of its adoption” in section 2 Clause (vi) of the Act are merely indicative of the result of actual giving and taking by the parents or guardians concerned referred to in the earlier part of the clause where an adoption ceremony is conducted and the giving and taking takes place. The parties had no intention of staging a play or putting on a performance. They clearly intended to follow the law’s requirement that a lawful adoption include both giving and taking.
- In this case, there is also clear evidence that the objective was to return the adopted son to the adoptive family. Nasib Chand D.W.2 stated that Bachan Singh and his wife were present at the moment of the adoption and stated that the boy was his (Maghi Singh’s) and that Maghi Singh took the son. Maghi had held Kartar in his lap, according to Pritam Singh D.W.3, and Bachan Singh had begged him to take his son. Maghi had held Kartar in his lap, and Bachan Singh and his wife were present, saying they had handed their son to him, according to Kashmiri Lal D.W.4. When Maghi requested for his kid, Bachan Singh replied he had given his boy up for adoption, according to Wasawa Singh D.W.5. Bachan Singh D.W.7 said that Maghi had kidnapped his son Kartar Singh, forced him to sit in Maghi’s lap, and that his (D.W.7 s) wife was nearby and had given her consent. There isn’t any more convincing evidence than this.
Judgement
- The Division Bench’s decision is reversed, and the learned Single Judge’s decision is reinstated. Throughout the case, the respondents will pay the appellant’s costs.
- The appeal has been granted.
Conclusion
Examining the full evidence on record, the court noted, among other things, that the adoptive father asked the appellant’s natural parents to surrender their son in adoption in front of the village brotherhood. The appellant was then given by his natural parents, and the adoptive father put him onto his lap. In the adoption deed, the fact of truly “giving and taking” in accordance with customary customs was also mentioned.
BY PRITI PODDAR