Case Note & Summary
The dispute concerned succession to the lands of Santa Singh alias Din Mohammad, an Aulakh Jat of Tehsil Ajnala in Amritsar District, Punjab, who was presumed dead after being unheard of for a long time. The revenue authorities sanctioned mutation of his lands in favour of the defendants, who were his collaterals in the 8th degree. The plaintiffs, Dewan Singh and Gian Singh, claimed the lands as descendants of Kala Singh, who they alleged had been formally adopted by Megh Singh, a collateral of Santa Singh in the 5th degree. Megh Singh had died more than 50 years earlier after adopting his daughter's son Kala Singh. The plaintiffs contended that the adoption was formal, took Kala Singh out of his natural family, transplanted him completely into Megh Singh's family, and bestowed upon him the rights of a natural son, entitling him to collateral succession as a preferential heir. The contesting defendants maintained that the adoption was only a customary appointment of an heir and conferred no right of collateral succession. The trial court held the adoption was the usual customary appointment of an heir but concluded that under custom an appointed heir could succeed collaterally in the adoptive father's family, and therefore decreed possession to the plaintiffs. The District Judge reversed, holding that adoption of a daughter's son was impermissible and an adopted son could not succeed collaterally if he was a non-agnate. The High Court in second appeal restored the trial court's decree, holding that the validity of the adoption could not be challenged because the point was not in issue, and that under customary law the adopted son was entitled to succeed collaterally. On appeal to the Supreme Court, the main legal issue was whether under the custom governing Jats of Amritsar District, Kala Singh, as an adopted son by mere appointment of heir, could succeed collaterally in his adoptive father's family. The appellants argued that the adoption was invalid and at best a mere appointment of heir with no collateral succession right. The respondents argued for a formal adoption with complete transplantation. The Court held the adoption validity challenge was not open because it had not been pleaded and no opportunity to lead evidence existed. On custom, it stated that entries in Riwaj-i-am are presumed correct and prevail over Rattigan's Digest in conflict. It distinguished formal adoption from mere appointment of heir: only a formal adoption with complete change of family confers collateral succession; a mere appointed heir does not. The question of formality was factual; a clear intention to sever natural family ties and loss of collateral succession in the natural family indicated formal adoption, whereas retention of such rights indicated informal appointment. In the present case, the concurrent findings of the lower courts were that Kala Singh's adoption was a mere appointment of heir, and the onus was on the respondents to show otherwise. The fact that Kala Singh succeeded to the lands of his natural brother and a collateral of his natural family strongly indicated that the adoption did not effect a change in his family. Consequently, Kala Singh's adoption not being formal, he could not be a preferential heir to Santa Singh. The appeal was allowed, the High Court's decree was set aside, and the plaintiffs' suit stood dismissed.
Headnote
A) Customary Law - Riwaj-i-am and Rattigan's Digest - Presumption of Correctness and Precedence - Punjab Customary Law - The Court held that entries in Riwaj-i-am are presumed correct and if there is a conflict between Rattigan's Digest and the Riwaj-i-am, normally the Riwaj-i-am of the locality prevails; judicial decisions and mutation evidence are relevant to prove custom (Paras 395-396). B) Customary Law - Adoption and Collateral Succession - Formal Adoption Confers Collateral Succession; Mere Appointment Does Not - Punjab Customary Law - Under customary law of Jats in Amritsar District, where the customary adoption is formal and the adopted son is completely transplanted into the adoptive father's family, he is entitled to succeed to collateral relatives of the adoptive father; if the adoption amounts to a mere appointment of an heir, the appointed heir is not entitled to succeed collaterally; this is consistent with Riwaj-i-am, judicial decisions, and Article 49 of Rattigan's Digest (Paras 398 C-D). C) Customary Law - Determination of Formal or Informal Adoption - Test of Intention to Change Family - Punjab Customary Law - Whether an adoption by a Jat in Amritsar District is formal or informal is a question of fact; adoption is formal if parties manifest a clear intention that there should be a complete change of the family of the adopted son, and loss of right of collateral succession in natural family is strong evidence of formal adoption, while retention indicates informal appointment of heir (Paras 398 E-G). D) Customary Law - Collateral Succession Rights of Appointed Heir - Burden of Proof and Evidence - Punjab Customary Law - In the present case, courts found adoption of K was no more than mere appointment of heir; onus to show formal adoption was on respondents; K's succession to lands of natural brother and collaterals indicated no change of family; therefore K could not be preferential heir to S (Paras 398 H-399 D).
Issue of Consideration
Whether under the customary law of Jats in Amritsar District, a son adopted by mere customary appointment of heir could succeed collaterally in the adoptive father's family as a preferential heir.
Final Decision
Appeal allowed; the decree of the High Court was set aside and the plaintiffs' suit for possession was dismissed. The Court held that Kala Singh's adoption was a mere appointment of heir and not formal, so he did not acquire the right of collateral succession in the adoptive father's family and could not be a preferential heir to Santa Singh.
Law Points
- Legal points not extracted
- Riwaj-i-am prevails over Rattigan's Digest in conflict
- formal adoption confers collateral succession
- mere appointment of heir does not
- intention of complete change of family determines formality
- loss of natural family collateral succession evidence of formal adoption
- burden on party claiming formal adoption
