Salig Ram vs Munshi Ram and Another

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 461 of 1957

Decision Date: 21 March, 1961

Coram: K.N. Wanchoo, P.B. Gajendragadkar

The Supreme Court of India heard the appeal titled Salig Ram versus Munshi Ram and another, decided on 21 March 1961. The judgment was authored by Justice K N Wanchoo, with Justice P B Gajendragadkar sitting on the same bench. The petitioner was Salig Ram and the respondents were Munshi Ram and another individual, as recorded in the official case report. The decision appears in the 1961 All India Reporter at page 1374 and is also cited in the Second Law Reports, volume 1, page 470. Subsequent citations include the 1966 and 1991 Supreme Court reference systems, reflecting the continuing relevance of the ruling. The matter concerned the custom of inheritance applicable in the Amritsar district of Punjab, particularly the rights of an adopted son within the Brahmin and Khatri communities under the Punjab Laws Act, 1872, section 5. The factual scenario involved a Hindu male, identified as M, belonging to the Brahmin community of Amritsar, who filed a suit seeking possession of a half share of property left by his natural paternal grandfather. M’s natural father had died before him, while another son of the grandfather remained alive at the time of the dispute. Although M had been adopted into a different family, he asserted that the customs of his own community entitled him to inherit his grandfather’s share by way of representation. He further argued that representation allowed him to step into the legal position of his deceased natural father. The Court examined section 5 of the Punjab Laws Act, 1872, which stipulates that Hindu law governs succession matters in Punjab unless a local custom, proven to differ, is shown to apply. The judgment clarified that any party invoking a custom that diverges from Hindu law bears the burden of proving its existence and content. Proof required for a well‑known general custom may be modest, whereas special customs demand more extensive evidence in court. The Court further held that within the Brahmin and Khatri communities of Amritsar district, an adopted son may inherit his natural father’s property only if the natural father has no other surviving son. If another son of the natural father exists, the adopted son is barred from succeeding to that estate. Applying these principles to the present facts, the Court concluded that M could not claim a share of his natural grandfather’s property either under Hindu law or the applicable customary law of Punjab. The appeal, designated as Civil Appeal No. 461 of 1957, was filed by special leave against the Punjab High Court judgment and decree dated 5 July 1954 in L P A No. 29 of 1953. Counsel for the appellant included N S Bindra and Sardar Singh, while counsel for respondent No. 1 comprised P D Ahuja and H P Wanchoo. Justice Wanchoo delivered the judgment on 21 March 1961, noting that the appeal arose from a suit for possession of land instituted by the respondent, Munshi Ram. The Court indicated that a pedigree table would assist in clarifying the parties’ genealogical relationships relevant to the claim.

The respondent presented a pedigree indicating the lineage as follows: Heman Karori, Laghi, Maghi, Jai Dayal (who left no issue), Gobind Ata, Nanak Chand, Santu, Munshi Ram (who was an adopted son), the plaintiff Hans Raj Salig Kam (the defendant), and Munshi Ram (who had been adopted by Ata). The claim advanced by Munshi Ram concerned the estate left by his natural grandfather Nanak Chand, as well as the estate of Santu. There was no dispute regarding Santu’s estate, and the appeal was limited to the estate of Nanak Chand. Nanak Chand died in 1939. Munshi Ram’s natural father, Hans Raj, had died before Nanak Chand, and Munshi Ram had been adopted by Ata in 1918, which was prior to the death of his natural father in 1920. Consequently, Hans Raj never succeeded to the property of his own father, Nanak Chand, and Munshi Ram had already been adopted before Hans Raj’s death. Munshi Ram argued that, under the Zamindari custom, he was entitled to one‑half share of Nanak Chand’s property as his heir. Both parties were Brahmins, and Munshi Ram asserted a right to joint possession of the half‑share after Nanak Chand’s death. Salig Ram, the other son of Nanak Chand and the defendant‑appellant, contended that Munshi Ram had no right either under personal law or according to the riwaj‑i‑am of Amritsar district. The trial court held that Munshi Ram was entitled to succeed to the estate of Nanak Chand together with Salig Ram and decreed the suit in his favour. Salig Ram appealed this decision to the District Judge, who dismissed the appeal, and subsequently to the High Court, which also dismissed the second appeal. After the High Court refused to grant a certificate, Salig Ram applied for special leave, which was granted, bringing the matter before this Court. In matters of succession and related issues, the law applicable in Punjab is contained in section 5 of the Punjab Laws Act, No IV of 1872. Clause (b) of that section provides that the rule of decision shall be Hindu law where the parties are Hindus, except to the extent that such law has been altered, abolished, or is opposed to the provisions of the Act or modified by a custom referred to in clause (a). Clause (a) states that any custom applicable to the parties, which is not contrary to justice, equity, or good conscience, and which has not been altered or abolished by any enactment, shall be applied. Hence, where the parties are Hindus, Hindu law governs unless a valid, non‑contrary custom applies.

In the first instance, the rule is that Hindu law governs the parties, and anyone who asserts a custom that differs from Hindu law must prove its existence; the level of proof required is lower when the custom is general and well‑recognised, but higher for special customs. As Robertson, J. observed in the 1906 case of Daya Ram v. Sohel Singh and others, “in all cases under s. 5 of the Punjab Laws Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision.” Those observations received approval from the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero and another, and the same view was adopted by this Court in Ujagar Singh v. Mst. Jeo. Accordingly, this Court must initially apply Hindu law to the parties to the suit, and only if a custom different from Hindu law is proved will the parties’ rights be governed by that custom. Munshi Ram contended that he was adopted by Ata according to the customary mode prevailing in the community for adoption, during the lifetime of Hans Raj. Consequently, Munshi Ram, having been adopted by Ata, would have no right to inherit from the family of his natural father Hans Raj unless the adoption had been in the dvyamushyayana form. The facts show that the adoption was never in dvyamushyayana form; therefore, under Hindu law, Munshi Ram would not be entitled after the adoption to succeed to the property left by Nanak Chand. Munshi Ram, however, asserted that under Zamindara custom he was entitled to succeed to one half of the property left by Nanak Chand. The question that thus arose was the content of the Zamindara custom applicable here. Although the plaint did not expressly plead the custom, the custom relied upon is found in paragraph 48 of the Digest of Customary Law in the Punjab by Rattigan, 13th Edition, page 572, which appears in section V titled “Effect of Adoption on Succession.” That paragraph states, in substance, that an heir appointed in the manner described ordinarily does not lose his right to succeed to property in his natural family against collaterals, but does not succeed in the presence of his natural brothers.

The Court observed that an heir appointed in the manner described does not lose his right to succeed to property in his natural family, but he is not a co‑sharer in the presence of his natural brothers. It was not disputed that paragraph 48 of Rattigan’s Digest applied to cases of adoption; nevertheless the appellant contended that paragraph 48 merely set out a custom prevalent throughout Punjab, whereas the riwaj‑i‑am of Amritsar district, the locality from which the parties originated, recorded a distinct local custom that truly governed the parties. The riwaj‑i‑am of Amritsar district in the year 1865 stated that “an adopted son will not be a co‑sharer amongst his brothers, in the property left by his natural father”, meaning that a son given away in adoption would not inherit in the natural father’s family. The Court referred to the decision in Jai Kaur and others v. Sher Singh and others, where it was held that there is an initial presumption of correctness regarding entries in the riwaj‑i‑am and that, when the custom recorded in the riwaj‑i‑am conflicts with the general custom recorded in Rattigan’s Digest or otherwise, the riwaj‑i‑am should ordinarily prevail, except as pointed out by the Judicial Committee of the Privy Council in the recent case of Mt. Subhani v. Nawab, which warned that if the riwaj‑i‑am adversely affects the rights of females who had no opportunity to appear before revenue authorities, the presumption would be weak and a few instances could rebut it. As no females were concerned in the present matter, the Court concluded that the entries in the riwaj‑i‑am of Amritsar district of 1865, if they conflicted with paragraph 48 of Rattigan’s Digest, should prevail. Accordingly, Munshi Ram would have no right to succeed in the family of his natural father after his adoption by Ata. The High Court, however, pointed out that there were decisions of other courts that did not accept the riwaj‑i‑am of 1865 as laying down the correct custom and therefore held that paragraph 48 of Rattigan’s Digest would continue to apply, relying on the authorities reported in A.I.R. 1960 S.C. 1118 and A.I.R. 1941 P.C. 21. In that connection the High Court relied on Majja Singh and others v. Rain Singh, a case involving Jats rather than Brahmins, where the adopted person was an only son; the Court noted that this case would not necessarily override the custom as it applied to Brahmins. The Manual of Customary Law prepared in 1911‑12 by Mr. Cralk clarified that, with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even when the natural father dies without leaving any other son. The High Court observed that Brahmins and Khatris did not accept this custom, but it failed to notice a further paragraph that answered that very question.

It was observed that among Brahmins and Khatris the prevailing custom was identical to the general rule, except that when a father had no other son, the son who had been adopted into another family would be allowed to inherit the property of his natural father. In the year 1940 the customary law of Amritsar district was again compiled, and this later compilation recorded that an adopted son ordinarily lost any right to inherit from his natural father; however, if the natural father died without any other sons, the adopted son could not inherit as a direct son but could inherit in a collateral capacity as a successor of his adoptive father. When the entries in the riwaj‑i‑am of 1865, the 1911‑12 compilation, and the 1940 compilation were compared, the resulting picture appeared rather confused, and consequently the High Court concluded that the custom set out in paragraph 48 of the earlier digest should be followed, because Brahmins and Khatris did not accept the extreme position that a son given away in adoption was completely excluded from succeeding in his natural father’s family, as was suggested in the 1911‑12 record. This conclusion was reinforced by statements made by Brahmins and Khatris in the 1911‑12 compilation, which indicated that a son given away in adoption could succeed in the natural father’s family provided that he had no brothers, although the High Court had failed to notice this part of the answer in the 1911‑12 riwaj‑i‑am. Accordingly, the final position reached was that among Brahmins and Khatris of Amritsar district, a son given away in adoption could succeed to the property of his natural father only when the natural father had no other son; if another son existed, the adopted son could not succeed. Applying this principle to the present dispute, Munshi Ram was not seeking succession to the property of his natural father Hans Raj but rather to the property of his natural grandfather Nanak Chand. Had the claim concerned succession to Hans Raj’s property, the custom might have favored Munshi Ram because Hans Raj had no other son, thereby allowing Munshi Ram to inherit Hans Raj’s property. However, Hans Raj died during the lifetime of his own father Nanak Chand and therefore never succeeded to Nanak Chand’s estate. The High Court nonetheless held that, on the principle of representation, Munshi Ram stepped into the shoes of his father Hans Raj and was therefore entitled to succeed to the estate left by Nanak Chand, as if Hans Raj had been alive at the time of Nanak Chand’s death. Yet, if representation applied, Munshi Ram would be deemed to be Hans Raj at the moment of Nanak Chand’s death, which would mean that Nanak Chand died leaving two sons—Salig Ram and Munshi Ram, the latter in the guise of Hans Raj. Because Munshi Ram had been adopted away and another son of Nanak Chand existed, even the custom recorded in paragraph 48 would exclude Munshi Ram, since a living brother in Nanak Chand’s family would succeed, preventing the adopted son who was representing his father from inheriting. Munshi Ram’s counsel argued that, although representation allowed Munshi Ram to stand in his father’s shoes, the representation could not be extended further, and it could not be said that two sons of Nanak Chand were alive at his death, one of whom—Munshi Ram—was adopted away, but this argument was not accepted.

The Court observed that because the child Hans Raj had been adopted away and another son of Nanak Chand existed, the custom cited in paragraph 48 would bar Munshi Ram from inheriting, since a living brother would take precedence over a representative son. Munshi Ram’s counsel argued that for the purpose of representation he should be regarded as standing in his father’s place, but that such representation could not be extended to create a second living son of Nanak Chand at the time of his death. The Court rejected this contention, stating that if Munshi Ram were to succeed under the principle of representation, the principle must be applied in full, deeming him to be Hans Raj for all legal purposes. Since the person treated as Hans Raj had been adopted away and also had a surviving brother named Salig Ram, the Court concluded that Munshi Ram could not inherit even under the custom described in paragraph 48 of Rattigan’s Digest. Accordingly, the Court held that neither Hindu law nor the custom referenced in paragraph 48 permitted Munshi Ram to succeed to Nanak Chand’s property. As a result, the appeal was allowed, the decree of the lower courts was set aside, and the plaintiff‑respondent’s suit concerning Nanak Chand’s property was dismissed. The Court also ordered each party to bear its own costs throughout the litigation, following the High Court’s practice, and recorded that the appeal was allowed.