Salig Ram vs Munshi Ram And Anr.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 29 March, 1961

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

This appeal was filed under special leave after a decision of the Punjab High Court and concerns a suit for possession of land that had been brought by Munshi Ram, who is the respondent in the present proceedings. To understand the foundation of the claim asserted by the respondent, the Court examined the family pedigree. According to the pedigree, Heman was the ancestor and his line extended to Karori Laghi Maghi, then to Jai Dayal (who held no issue), and subsequently to Gobind Ata and Nanak Chand. From Nanak Chand descended Santu and an adopted son, Munshi Ram, while Hans Raj and Salig Ram were the sons of Nanak Chand. Munshi Ram, although an adopted son of Ata, was therefore positioned in the family tree as the adopted descendant of Nanak Chand and also as the natural grandson of Nanak Chand through Santu.

The dispute focused exclusively on the share of property that was left by Nanak Chand, who passed away in 1939. There was no longer any contention regarding the estate of Santu, and the Court limited its consideration to the estate of Nanak Chand. Hans Raj, the natural father of Munshi Ram, had died before Nanak Chand, and therefore never succeeded to Nanak Chand’s estate. Moreover, Munshi Ram had been legally adopted by Ata in 1918, which occurred before the death of his natural father Hans Raj in 1920. Consequently, at the time of Nanak Chand’s death, Munshi Ram’s claim to the estate derived from his status as an adopted son of Ata and from his lineage as a natural grandson of Nanak Chand through Santu. The respondent argued that, under the Zamindara custom, he was entitled to a half‑share in the property of his grandfather Nanak Chand and claimed joint possession of that half‑share together with the other son, Salig Ram. Both parties were Brahmins. The defendant‑appellant, Salig Ram, contended that, pursuant to personal law and the Riwaj‑i‑am of Amritsar district, Munshi Ram possessed no right to any portion of Nanak Chand’s estate. The trial court held that Munshi Ram was entitled to succeed to the property of Nanak Chand alongside Salig Ram and accordingly decreed the suit in Munshi Ram’s favour. Salig Ram appealed this decision to the District Judge and was unsuccessful; he then filed a second appeal before the High Court, which likewise dismissed the appeal. After the High Court refused to grant a certificate of fitness for further appeal, Munshi Ram obtained special leave to appeal to this Court, and the matter now stands before the Bench.

In addressing questions of succession and related matters, the Court noted that the applicable law in Punjab is contained in section 5 of the Punjab Laws Act, No IV of 1872. Clause (b) of that section provides that, where the parties are Hindus, the rule of decision shall be the Hindu law, except to the extent that such law has been altered, abolished, or contradicted by any legislative enactment, or modified by a custom referred to in clause (a) of the same section.

Section five of the Punjab Laws Act, No IV of 1872, governs questions of succession and related matters in Punjab. Clause (b) of that section provides that the rule of decision shall be the Hindu law where the parties are Hindus, except to the extent that such law has been altered or abolished by a legislative enactment, is opposed to the provisions of the Act, or has been modified by any custom that is referred to in clause (a). Clause (a) further declares 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 this Act or any other enactment, and which has not been declared void by a competent authority, shall be applied to the matter. Consequently, the position that emerges is that Hindu law is the default rule when the parties are Hindus, and that any party who wishes to invoke a custom that deviates from Hindu law bears the burden of proving the existence and content of that custom. The quantum of proof required varies: a general and well‑recognised custom may be proved by relatively modest evidence, whereas a special or localized custom may demand a larger evidential showing. As Justice Robertson observed in the 1906 decision of Daya Ram v Sohel Singh, “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 were endorsed by the Privy Council in Abdul Hussein Khan v Bibi Sona Dero (1917) and later affirmed by this Court in Ujagar Singh v Mst Jeo (1959). Accordingly, the first step in the present suit is to apply Hindu law to the parties; only if a custom that differs from Hindu law can be proved will the rights of the parties be governed by that custom.

Munshi Ram contended that he had been adopted by Ata in accordance with the custom prevalent in his community, that is, the mode of adoption normally observed for purposes of adoption, during the lifetime of his natural father Hans Raj. Under Hindu law, a son who is adopted by another person acquires succession rights in the adoptive family, but loses any right to inherit from his natural father unless the adoption is of the dvyamushyayana type. Munshi Ram never asserted that his adoption was of the dvyamushyayana form; therefore, if Hindu law governs, he would have no entitlement to succeed to the property left by Nanak Chand after his adoption. Munshi Ram also claimed that, according to Zamindara custom, he was entitled to half of the properties left by Nanak Chand. The question that arises is what exactly Zamindara custom stipulates in this case. The plaint did not specifically plead the custom, although strictly speaking it should have been pleaded. Nevertheless, the custom relied upon is found in paragraph 48 of the Digest of Customary Law in the Punjab by Rattigan (13th edition, p. 572), which appears in section V dealing with “Effect of Adoption on Succession”. Paragraph 48 states 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. It is not contested that paragraph 48 applies to adoption cases; however, the appellant argues that paragraph 48 describes a custom that is prevalent throughout Punjab, whereas the riwaj‑i‑am of Amritsar district, which records the local practice of the parties, contains a specific custom confined to that area which truly governs them. According to the 1865 riwaj‑i‑am of Amritsar district, an adopted son will not be a co‑sharer, a provision that would affect the claim of Munshi Ram under Zamindara custom.

In this case the parties had not specifically pleaded the custom that they relied upon, although that should have been done. The custom invoked by the appellant is recorded in paragraph 48 of the thirteenth edition of the Digest of Customary Law in the Punjab by Rattigan, page 572. That paragraph is found in section V, which deals with the effect of adoption on succession, and it states: “An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers.” It is not disputed that paragraph 48 applies to cases of adoption. The appellant, however, contends that paragraph 48 merely reflects a custom that prevailed throughout the Punjab, whereas the riwaj‑i‑am of Amritsar district, the locality of the parties, records a more specific custom that should govern the present dispute. According to the 1865 riwaj‑i‑am of Amritsar, “an adopted son will not be a co‑sharer amongst his brothers, in the property left by his natural father,” meaning that a son who is given away in adoption does not inherit from his natural father’s estate. The Court may refer to the earlier decision of Jai Kaur and others v. Sher Singh and others, where it was held that there is an initial presumption that the entries in the riwaj‑i‑am are correct, and when those entries conflict with the general custom recorded in Rattigan’s Digest or with customs ascertained by other means, the riwaj‑i‑am custom should ordinarily prevail. That presumption, however, can be weakened, as pointed out by the Judicial Committee of the Privy Council in Mt. Subhani v. Nawab, when the riwaj‑i‑am adversely affects the rights of females who had no opportunity to appear before revenue authorities; in such circumstances only a few instances are needed to rebut the presumption. Because no females are affected in the present matter, the Court concluded that if the 1865 riwaj‑i‑am custom of Amritsar conflicts with paragraph 48 of Rattigan’s Digest, the former should govern, resulting in the finding that Munshi Ram would have no right to succeed in the estate of his natural father after being adopted by Ata. The High Court, however, observed that there are judicial decisions that do not accept the 1865 riwaj‑i‑am of Amritsar as establishing the correct custom, and therefore it held that paragraph 48 of Rattigan’s Digest should continue to apply. In support of that view, the High Court relied on Majja Singh and others v. Ram Singh (1879 P.R. No. 43), a case involving Jats rather than Brahmins, where the adopted person was an only son. Because that case involved a different community and facts, it cannot be said to override the custom applicable to Brahmins. Consequently, the Court recognized that the matter remains open to further consideration.

In this case the Court referred to the Manual of Customary Law that had been prepared in 1911‑12 by Mr Craik. That manual stated that, except for Brahmins and Khatris, an adopted son did not retain any right to inherit from his natural father even when the natural father died without leaving any other son. The High Court observed that Brahmins and Khatris did not accept this rule, but the Court failed to notice an additional paragraph that answered the same question. That paragraph clarified that among Brahmins and Khatris the same rule applied, except that when the natural father had no other son, the son who had been adopted into another family could succeed to the natural father’s property. The Court also noted that the customary law of Amritsar district had been compiled again in 1940. The 1940 compilation recorded that an adopted son lost his 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 son but might inherit collaterally as a successor of his adoptive father.

When the entries in the riwaj‑i‑am of 1865, 1911‑12 and 1940 were compared, the result was somewhat confusing. The High Court therefore decided that the custom recorded in paragraph 48 of Rattigan’s Digest should be followed, because Brahmins and Khatris did not accept the extreme view that a son given away in adoption was completely excluded from succeeding in his natural father’s family, as was recorded in the 1911‑12 manual. This view was reinforced by the statements made by Brahmins and Khatris in 1911‑12, which said that a son given away in adoption could succeed in the natural father’s family if he had no brothers. The High Court had not taken this part of the answer into account. Consequently, the Court concluded that among Brahmins and Khatris of Amritsar district a son given away in adoption may succeed to the property of his natural father only when there is no other son of the natural father; if another son exists, the adopted son cannot succeed.

Applying this proposition to the present dispute, Munshi Ram was not seeking to inherit the property of his natural father Hans Raj but rather the property of his natural grandfather Nanak Chand. If the claim had been for the inheritance of Hans Raj’s property, the custom might have favored Munshi Ram because Hans Raj had no other son, and under the custom an adopted son could succeed in such a circumstance. However, Hans Raj died during the lifetime of his father Nanak Chand and therefore never succeeded to Nanak Chand’s estate. The High Court held that, based on the principle of representation, Munshi Ram stepped into the shoes of Hans Raj and was therefore entitled to inherit the estate left by Nanak Chand, as his father would have done had he been alive at the time of Nanak Chand’s death.

The Court explained that if Munshi Ram were to inherit by virtue of the principle of representation, the law would treat him as if he were his father Hans Raj at the moment Nanak Chand died. Consequently, Nanak Chand would be considered to have left two surviving sons: Salig Ram and Munshi Ram, the latter standing in the place of Hans Raj. However, because Munshi Ram had been given away in adoption and because Nanak Chand also had another surviving son, the custom described in paragraph 48 would bar Munshi Ram from inheriting. Under that custom a living brother of the adopted son would take precedence, and the brother would inherit in place of the adopted son who was merely representing his father. Munshi Ram’s counsel argued that representation should stop at his father’s level and should not be extended to treat him as a second son of Nanak Chand, especially since one of those alleged sons had been adopted away. The Court rejected this argument, holding that if representation were to be applied, it must be applied in full, which meant that Munshi Ram must be deemed, for all legal purposes, to be Hans Raj. Since the person deemed to be Hans Raj had been adopted away and a living brother, Salig Ram, existed, Munshi Ram could not succeed even under the custom set out in paragraph 48 of Rattigan’s Digest. The Court therefore concluded that neither Hindu law nor the custom in paragraph 48 permitted Munshi Ram to inherit the estate of Nanak Chand. Accordingly, the Court allowed the appeal, set aside the decree of the lower courts, and dismissed the plaintiff‑respondent’s suit as against the property of Nanak Chand. The Court also ordered each party to bear its own costs throughout, following the order of the High Court. The appeal was thus allowed.