Hem Singh And Another vs Harnam Singh And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 124 of 1951

Decision Date: 01/04/1954

Coram: Ghulam Hasan, B.K. Mukherjea, Vivian Bose

In the matter titled Hem Singh and another versus Harnam Singh and another, the judgment was delivered on the first day of April in the year 1954 by the Supreme Court of India. The opinion was authored by Justice Ghulam Hasan, and the bench that heard the case comprised Justices Ghulam Hasan, B. K. Mukherjea and Vivian Bose. The petitioners were identified as Hem Singh and another, while the respondents were Harnam Singh and another. The citation for this decision appears as 1954 AIR 581 and 1955 SCR 44. The dispute concerned a matter under the Custom-Adoption-Gill Acts of the village Gillanwali in the district of Gurdaspur, Punjab, specifically the validity of an adoption of a collateral of the eighth degree.

The headnote of the judgment states that, according to the customary law of Gurdaspur district applicable to the Gill Jats of Gillanwali village, the adoption of a collateral belonging to the eighth degree is not invalid. The Court observed that the answer to the ninth question in the customary law of the district, which suggested that “the adoption of near collateral only” should be recognized, is not mandatory but merely directory. Moreover, the Court held that under the customary law of Punjab, adoption is a secular act intended to appoint an heir, and that the rules concerning ceremonial formalities and preferences in the selection of the adoptee are also directory; consequently, adoptions performed in disregard of those rules are not rendered invalid. The judgment referred to several earlier authorities, namely Jiwan Singh and another v. Pal Singh and another (22 P.R. 1913 at p. 84), Sant Singh v. Mula and others (44 P.R. 1913 at p. 173), Charan Singh v. Butta Singh and others (A.I.R. 1935 Lah. 83), Jowala v. Dewan Singh (166 I.C. 237), and Basant Singh and others v. Brij Raj Saran Singh (I.L.R. 57 All. 494).

The case was a civil appeal numbered 124 of 1951, arising from a special leave granted by His Majesty in Council on the thirtieth of October, 1945, which allowed an appeal against the judgment and decree dated the twelfth of July, 1944, of a Division Bench of the High Court at Lahore. That High Court judgment had affirmed the dismissal of the appellants’ suit that had previously been decided by the trial court and the Court of the District Judge, Gurdaspur. The appellants, who were the first cousins of the respondent Harnam Singh, belonged to the village of Gillanwali in the tahsil of Batala, district of Gurdaspur. The second respondent, Gurmej Singh, was a collateral of Harnam Singh in the eighth degree. The appellants filed suit seeking a declaration that the deed of adoption executed by Harnam Singh on the thirtieth of July, 1940, in favour of Gurmej Singh, was invalid and therefore could not affect the appellants’ reversionary rights after Harnam Singh’s death. The appellants contended that, under the customary law applicable to the Gill Jats of Gillanwali, Harnam Singh was permitted to adopt only a “near collateral,” and that Gurmej Singh, being a distant collateral, could not be validly adopted. The defence denied the plaintiffs’ claim. Both the trial judge and the District Judge on appeal held that the fact of adoption and its validity were fully established. In the second appeal before the Lahore High Court, the judges held that sufficient evidence of the adoption was furnished by the deed and by Harnam Singh’s subsequent conduct, emphasizing that the essential requirement under custom was a clear expression of intent by the adoptive father to adopt the boy as his son, a requirement that was satisfied in the present case.

In this suit the appellants asserted that the deed of adoption executed by Harnam Singh on 30 July 1940 in favour of Gurmej Singh was void and therefore could not affect the appellants’ future reversionary rights after Harnam Singh’s death. The appellants relied on the customary law of the Gurdaspur District that governed the Gill Jat community of the village Gillanwali. According to that custom, Harnam Singh was permitted to adopt only a “near collateral” and, because Gurmej Singh was a distant collateral, the appellants claimed that the adoption was illegal. The respondents simply denied the plaintiffs’ claim and insisted that the adoption was valid. Both the trial judge and, on appeal, the District Judge concluded that the facts establishing the adoption and its validity had been fully proved. On the second appeal, Chief Justice Trevor Harries and Justice Mahajan (who was then a judge of the High Court) held that the record contained sufficient proof of the adoption. They explained that under the relevant custom an adoption is complete when the adoptive father shows a clear intention to take the boy as his son. That intention, they said, was unmistakably demonstrated by Harnam Singh’s execution and registration of the deed of adoption, by his public statements, and by his treatment of Gurmej Singh as his adopted son. Having accepted the legal validity of the adoption, the High Court examined the answer to Question 9 of the 1913 “Riwaj-i-am” of Gurdaspur District, which stated that only “near collaterals” could be adopted. The Court held that this rule was not compulsory. In reaching that conclusion, it relied on the judgment of Justice Tek Chand in Jowala v. Diwan Singh (1) and on the Privy Council’s decision in Basant Singh v. Brij Raj Saran Singh (2). The Court noted that the initial question of whether an adoption had taken place required only a brief discussion.

The deed of adoption, exhibited as Exhibit D-1, recorded that Harnam Singh had no male issue capable of performing the “kiry a karam” ceremony after his death. It further stated that Gurmej Singh had been raised from infancy by Harnam Singh’s wife and that the adoption was made in accordance with the prevailing custom. The deed continued that, following the adoption, Harnam Singh had consistently addressed Gurmej Singh as his adopted son, a practice that was well known throughout the village and entitled the adopted son to all the rights of a natural son. Harnam Singh had also executed a formal document in Gurmej Singh’s favour to prevent any future dispute concerning the adoption, and he had transferred ownership of all his property to Gurmej Singh as his adopted son. The Court expressed satisfaction that the evidence on the fact of adoption was ample and reliable. The remaining and more substantive question before the Court was whether, under the “Riwaj-i-am” applicable to the parties, an adoption of a person who was an eighth-degree collateral of the adoptive father could be valid. The custom in issue was derived from the answer to Question 9 of the “Riwaj-i-am” and formed part of the Customary Law of Gurdaspur District. The Court proceeded to examine that specific custom to determine whether it permitted the adoption of a distant collateral such as Gurmej Singh.

In the inquiry the Court examined whether the custom required that the adopted person be related to the adopter, and, if so, which relatives could be adopted, whether any preference was to be shown to particular relatives, and whether the adopted son and his adoptive father had to belong to the same caste or tribe or the same got. The answer recorded that only the Sayyads of Shakargarh and the Arains of Gurdaspur Tahsil recognised the adoption of a daughter’s son. The Brahmans of the Batals Tahsil stated that adoption of a daughter’s son was recognised only by those Brahmans who were not agriculturists by occupation. The Muslim Jats of Gurdaspur Tahsil could not reach agreement on the matter, as noted in the reports 166 I.C. 237 and I.L.R. 57 All- 494. The remaining tribes accepted adoption only of war collaterals, and the right of selection was said to rest with the adopter. The Khatris, Brahmans, Bedis and Sodis of Gurdaspur Tahsil further declared that the nearest collaterals could not be superseded and that selection should always be made from among them. The appellants argued that the expression “near collaterals only” should be interpreted to mean collaterals up to the third degree and should not include a remote collateral in the eighth degree, insisting that the restriction on the degree of relationship was mandatory and could not be ignored. They pointed out that the term “near collaterals” was not defined by the custom and that the answer quoted above gave no precise meaning to the words. The Court observed that the custom recorded in the Riwaj-i-am was in derogation of the general custom and that any such custom must be proved by clear and unequivocal language. The Court found the language ambiguous on its face and saw no justification for limiting the expression to collaterals only up to a certain degree. Moreover, the Court regarded the wording as merely an expression of a wish by the narrators of the custom rather than a mandatory rule, noting that if the intention had been to make it compulsory the Riwaj-i-am would have avoided ambiguous terms susceptible to conflicting interpretation. The provision that the right of selection rested with the adopter further weakened any claim of a mandatory limitation on the degree of relationship. Although the Jat community recognised adoption of “near collaterals only,” the Court noted that the discretion to select remained with the adopter, rendering it meaningless to grant such discretion if the adopter were not allowed to choose among collaterals inter se. Consequently, the Court could not discern from the answer any restriction on the adopter’s choice of a particular collateral, however near in degree he might be.

In this matter, the Court observed that the customary adoption practiced in the Punjab allows the adopter to choose any collateral relative, no matter how remote, as his heir. The Court referred to Sir W.H. Rattigan’s scholarly work, “Digest of Customary Law in the Punjab,” where paragraph 35 states that a sonless landowner in the central and eastern Punjab may appoint one of his kinsmen to succeed him as heir, and paragraph 36 adds that there is no restriction concerning the age or the degree of relationship of the person appointed. From these observations the Court inferred that the fundamental purpose of the customary adoption prevalent in the Punjab is to secure an heir who can take part in the adopter’s agricultural activities and family affairs, thereby granting a personal, secular benefit to a kinsman. This purpose differs from the adoption recognized under Hindu law, where the primary motive for a male adopter is to obtain spiritual benefit and, for a female adopter, to secure such benefit for her husband. Consequently, the customary practice places little emphasis on elaborate ceremonies, and it affords the adopter wide latitude in selecting the heir. The Court also cited the well-known commentary by Mulla on Hindu law, which notes that provisions prohibiting the adoption of an only son or requiring preference for a relation over a stranger are merely directory; therefore, an adoption of an only son or a stranger, if completed, is not invalid, and the principle of factum valet applies, rendering the act valid and binding. The Court found no justification for treating a declaration in a Riwaj-i-am differently, and it held that the answer’s wording should not be interpreted as mandatory. Even when the language of the custom appears peremptory, the dominant intention remains to confer a temporal benefit upon kinsmen, and that intention must not be ignored. The Court referenced several decisions in which courts examined the wording of customary declarations and held them to be directory rather than compulsory. For example, in Jiwan Singh and Another v. Pal Singh and Another, the learned Judges (Shah Din and Beadon JJ.) held that among the Randhawa Jats of Mauza Bhangali, an adoption by registered deed of a collateral in the ninth degree, aged sixteen, was valid even though the Riwaj-i-am prescribed a nearer collateral and a lower age. The Court concluded that the provision concerning age was recommendatory, not mandatory, and that the customary practice permits the adopter to select any suitable kinsman irrespective of degree of relationship.

The Court observed that the provision concerning the age of the adoptee was merely recommendatory and did not carry the force of a mandatory rule. In the decision of Sant Singh v. Mula and Others, the learned judges Robertson and Beadon held that among the Jats and related tribes of the Punjab the prevailing, though not universal, custom allowed a man to select an heir from among the descendants of his ancestor without obligating him to choose the nearest collateral. That case illustrated a situation in which a more distant collateral was preferred over a nearer one. The judges expressed the view that the clause suggesting the advisability of adopting from nearer collaterals was simply advisory in nature.

In the case of Chanan Singh v. Buta Singh and Others, originating from the Jullundur District, the Court examined a set of questions and answers that addressed the formalities required for a valid adoption. The question asked whether any specific formalities were necessary and, if so, what they were, and also whether the omission of any customary ceremonies would invalidate the adoption. The answer explained that the essence of an adoption lay in publicly declaring the fact of adoption before the brotherhood or other village residents. The usual practice, according to the answer, involved the Baradari assembling, the adopter making a declaration in their presence, the distribution of sweets, and the preparation of a deed of adoption. The answer further stated that if these formalities were not observed, the adoption would not be considered valid. The adoption in question was challenged on the ground that no gathering of the brotherhood had taken place. The learned judges Addison and Beckett held that the presence or absence of such a gathering was immaterial. They noted that the adopter had made a statement in court acknowledging the appointment, had celebrated the boy’s marriage as his son the following day, had looked after the boy’s education, had allowed the boy to describe himself as the adopted son or appointed heir, and that the boy lived with him as his son. The judges concluded that the details provided in the customary-law questionnaires were not necessarily mandatory but could be merely indicative.

In Jowala v. Dewan Singh, Justice Tek Chand held that an adoption of a collateral in the fourth degree among the Jats of Mauza Hussanpur, Tahsil Nakodar, District Jullundur, was valid even though nearer collaterals were alive, and he characterized the entry in the Riwaj-i-am concerning who could be adopted as merely indicative. Similarly, in the Delhi case reported as Basant Singh and Others v. Brij Raj Saran Singh, the Privy Council held that the restriction in the Riwaj-i-am limiting adoption to persons of the same gotra was recommendatory, and that a person belonging to a different gotra could be adopted. Counsel for the appellants openly admitted that he could not cite any authority in which the declarations governing customary adoptions were held to be mandatory. The Court therefore noted that determining whether a specific rule recorded in the Riwaj-i-am is mandatory or merely directory must depend on the essential character of the custom involved.

Whether a rule in a custom is mandatory or merely directory must be determined by examining the essential characteristic of that custom. The Court explained that, under Hindu law, adoption is chiefly a religious act designed to confer spiritual benefit on the adopter. Because of this religious purpose, certain prescribed rules have been regarded as mandatory, and observance of those rules is considered a condition for the adoption to be valid. In contrast, the Court noted that, according to the authorities cited as (1) 166 I.C. 237 and (2) 57 All. 494, which discuss Customary Law in the Punjab, adoption under that system is a secular transaction whose main objective is to designate an heir. Consequently, the rules that pertain to the ceremonial aspects of the adoption and to any preferences in the selection of the adoptee are treated as directory. The Court clarified that an adoption that disregards those ceremonial or preferential rules is not invalid merely because of that non-compliance. Having examined the submissions and the material before it, the Court found that the appeal contained no substantive ground for relief. Accordingly, the appeal was dismissed and the parties were ordered to bear the costs. The dismissal of the appeal was thereby confirmed.