Arjan Singh And Ors vs Narain Singh and Ors
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeals Nos. 223 and 224 of 1961
Decision Date: 12 February 1963
Coram: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta, J.C. Shah
In the matter titled Arjan Singh and others versus Narain Singh and others, the Supreme Court of India delivered its judgment on 12 February 1963. The bench comprised Justices P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, K. C. Das Gupta and J. C. Shah. The dispute concerned the inheritance of the estate of a deceased man named Harnam Singh, who left behind two daughters, both of whom later died without surviving issue. The Revenue authorities consequently entered the entire estate in the name of the respondents.
The petitioners instituted a suit for possession of Harnam Singh’s estate. They argued that, although Ghuda Singh—who was the ancestor of the petitioners—had been adopted by his maternal uncle, this adoption did not sever the right of Ghuda Singh’s descendants to inherit from the natural family. The petitioners further contended that the family was governed by the Zamindara Riwaj‑i‑am, a customary rule under which a son adopted into another family retained his right to inherit from his birth family because the adoption, being a custom of the community, did not completely cut off his connection with the natural family.
The respondents, on the other hand, asserted that in the district of Ferozepore every adoption in a Hindu family was a formal adoption according to the local Riwaj‑i‑am, and that a formally adopted son was excluded from inheriting from his natural family. Accordingly, they claimed that Ghuda Singh, having been adopted by Bhan Singh, could not inherit the estate because the adoption amounted to a complete severance of his ties with his birth family.
The subordinate judge dismissed the suit, a decision that was affirmed by the district judge. The High Court, however, set aside the district judge’s order. It held that the record contained no evidence that the adoption of Ghuda Singh was a formal adoption; consequently, the adoption must be presumed to be a customary appointment of an heir rather than a formal adoption under Hindu law. The High Court relied on extensive authority supporting the proposition that a customary adoption does not deprive the adopted son and his descendants of the right to inherit from collaterals in the natural family. Therefore, the petitioners, as grandsons in the male line of Ghuda Singh, were entitled to inherit the estate.
The respondents appealed to the Supreme Court, obtaining a certificate of fitness from the High Court. The Supreme Court affirmed the view of the High Court. It held that a person adopted according to the customs of the community—i.e., a person appointed as an heir to inherit the property of someone outside the family—does not, by virtue of such appointment, lose his right to inherit from his natural family, except for the specific circumstance where natural brothers exist, in which case the natural brothers would inherit to the exclusion of the adopted son and his descendants. The Court cited the authorities Daya Ram v. Sohel Singh (1906) P. R. No. 110 (F.B.), Abdul Hussain Khan v. Bibi Sona Dero (1917) L.R. 45 I.A. 10, Vaishno Ditti v. Rameshri (1928) L.R. 55 I.A. 407, Mela Singh v. Gurdas (1922) 1 L.R. 3 Lah. 362, Jagat Singh v. Ishar Singh (1934) I.L.R. 11 Lah. 615, Kanshi Ram v. Situ (1934) I.L.R. 16 Lah. 214, Rahmat v. Ziledar (1945) 1 L.R. 26 Lah. 504 and Jai Kapur v. Sher Singh [1960] 3 S.C.R. 975, which supported the principle affirmed by the Court.
In this case the Court observed that a person who is appointed as heir according to the customs of the community, that is, who is designated to inherit the property of a person outside his own family, does not by virtue of such appointment lose his right to inherit in his natural family except for the specific right to inherit the property of his natural father when there are natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his descendants. The Court then referred to the authority of several earlier decisions, namely Daya Ram v. Sohel Singh (1906) P. R. No. 110 (F.B.), Abdul Hussain Khan v. Bibi Sona Dero (1917) L. R. 45 I. A. 10, Vaishno Ditti v. Rameshri (1928) L. R. 55 I. A. 407, Mela Singh v. Gurdas (1922) 1 L. R. 3 Lah. 362, Jagat Singh v. Ishar Singh (1930) I. L. R. 11 Lah. 615, Kanshi Ram v. Situ (1934) I. L. R. 16 Lah. 214, Rahmat v. Ziledar (1945) 1 L. R. 26 Lah. 504 and Jai Kapur v. Sher Singh [1960] 3 S. C. R. 975, which were cited for support. The judgment formally recorded the civil appellate jurisdiction of the case, identified the two civil appeals numbered 223 and 224 of 1961, and noted that they arose from the judgment and decree dated 25 April 1956 of the Punjab High Court in civil regular second appeals numbered 158 and 159 of 1949 respectively. Counsel for the appellants were N. S. Bindra and K. L. Mehta, while counsel for the respondents in appeal number 224 of 1961 were Gurbachan Singh, Harbans Singh and M. L. Kapur. The judgment date was 12 February 1963 and it was delivered by Justice Shah. These appeals concerned two suits relating to certain agricultural lands situated in the village of Umri Ana, tehsil Zira, district Ferozepore in the Punjab. The dispute centred on the right to inherit the estate of one Hamam Singh who was the last male holder of the property. The parties claiming rights were descendants of Sahib Singh, whose lineage was set out in a detailed genealogy. Sahib Singh had two sons, Hamir Singh and Wazir Singh; Hamir Singh’s descendants included Attar Singh, Chuhar Singh, Ghuda Singh, Kahan Singh, Mangal Singh, a daughter, and further descendants such as Tehl Singh and Arjan Singh. The other branch traced from Wazir Singh through Narain Singh and three plaintiffs identified as Bakshish Singh, Ajaib Singh and Mukhtar Singh, all sons of Ramji Singh. The genealogy further listed Roor Singh, Bhola Singh, Harman Singh and other members, as well as two daughters of Harnam Singh, namely Mst. Tejo and Mst. Gejo, who died without issue. Harnam Singh, a grandson of Kahan Singh, died leaving only his two daughters and no male lineal descendant; consequently the estate devolved upon the daughters in equal shares. When Mst. Tejo died childless, the revenue authorities entered the entire estate in the name of Mst. Gejo. After Mst. Gejo also died in 1942 without surviving issue, an order dated 6 September 1945 issued by the Assistant Collector directed that the entire estate be entered in the names of Narain Singh son of Dasaundha Singh and the three plaintiffs, Bakshish Singh, Ajaib Singh and Mukhtar Singh, who were thereafter referred to collectively as the plaintiffs. The plaintiffs had subsequently appealed this order to the Collector of Ferozepore.
The Court recorded that the order of the Assistant Collector, which had directed the estate to be entered in the names of Tehl Singh and Arjan Singh, sons of Mangal Singh and hereinafter referred to collectively as “the defendants,” was set aside, and the estate was consequently entered in the names of the defendants. The Commissioner of the Division affirmed the order of the Collector. The plaintiffs, who were the descendants of Ghuda Singh, then instituted suit No. 9/1947 before the Subordinate Judge of Zira seeking a decree for possession of the estate of Harnam Singh, except for a small portion comprising eight kanals and eleven marlas identified as Khasra No. 325, which the plaintiffs already possessed. In response, the defendants, who were the descendants of Wazir Singh, commenced a separate action, Suit No. 13/1947, for possession of Khasra No. 325 against the plaintiffs. Both parties asserted title to the estate of Harnam Singh on the basis of the customary law applicable to Jats residing in tehsil Zira, District Ferozepore. The plaintiffs contended that, notwithstanding the adoption of Ghuda Singh by his maternal uncle Bhan Singh, the descendants of Ghuda Singh were not excluded from inheriting the estate of a member of Ghuda Singh’s natural family. They submitted that the family of the plaintiffs and of Harnam Singh was governed by Zamindara Riwaj‑i‑am (the general custom prevailing among Zamindars), under which an adopted son and his descendants do not lose their right to inherit from their natural family because, according to the community’s custom, adoption does not completely sever the adopted son’s connections with his natural family. The defendants, on the other hand, claimed that in the District of Ferozepore every adoption in a Hindu family is “formal,” and that, according to the Riwaj‑i‑am of the District, an adopted son is excluded from the right to inherit in his natural family. Accordingly, they argued that Ghuda Singh, having been adopted by Bhan Singh, could not inherit the estate of Hamir Singh, the adoption effecting a total severance from his natural family. The sole dispute between the parties was therefore the determination of which customary law governed the rights of an adopted son in a Jat family residing in tehsil Zira, District Ferozepore. The two suits were consolidated for trial. The Subordinate Judge held that all the ceremonies relating to the adoption had been performed and, in accordance with the custom prevailing in the District, Ghuda Singh ceased to be a member of his natural father’s family; consequently, the plaintiffs, as descendants of Ghuda Singh, could not inherit the estate of Hamir Singh. In reaching that conclusion, the Judge relied upon the Manual of Riwaj‑i‑am of Ferozepore District prepared in 1914, which he interpreted as recording that when an adoption takes effect in the District, the adopted son is transplanted into the family of the adopter. On appeal, the District Court of Ferozepore held that, for Jats of Ferozepore District, a special custom prevailing in the District gave the adopted son the right to inherit collaterally only in the family of his adoptive father and denied him any collateral inheritance rights in his natural father’s family.
In the second appeal, the High Court of Punjab overturned the decree that had been issued by the District Court. The High Court observed that the record contained no proof that the adoption of Ghuda Singh by his maternal uncle Bhan Singh was a formal adoption performed under Hindu law. In the absence of such evidence, the Court presumed that the adoption was a customary appointment of an heir rather than a statutory adoption. The Court noted that there was extensive authority supporting the proposition that a customary adoption does not exclude the adopted son and his descendants from the right to inherit collaterally in the natural father’s family. Consequently, the High Court held that the plaintiffs, being grandsons in the male line of Ghuda Singh, were entitled to inherit the estate of Hamir Singh.
Following the High Court’s order granting a certificate of fitness, the defendants preferred two appeals. All parties agreed that Ghuda Singh had been adopted sometime before 1856 by his maternal uncle Bhan Singh. The dispute therefore required the application of the customary law applicable to the parties, as mandated by section 5 of the Punjab Laws Act, 1872. That provision stipulates that in matters concerning succession, special property of females, betrothal and marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition, or any religious usage or institution, the rule of decision shall be (a) any custom applicable to the parties that is not contrary to justice, equity, or good conscience, has not been altered or abolished by any enactment, and has not been declared void by a competent authority; and (b) the Muhammadan law where the parties are Muhammadans, and the Hindu law where the parties are Hindus, except to the extent that such personal law has been altered, abolished, or modified by legislation or by a custom falling within clause (a).
The Court referred to the judgment in Daya Ram v. Sohel Singh, where Justice Robertson had observed that under this Act the burden lies on the party asserting that a particular custom governs the matter to prove that the custom, and not personal law, applies, and to demonstrate the specific content of that custom. No presumption in favor of custom exists; the custom must be established before it becomes the guiding rule. The Legislature, the judgment explained, did not display a preference for custom over law, nor did it intend to extend the principles of custom to matters where the applicability of a custom is not clearly proven.
In this case the Court explained that a rule of custom cannot be applied where the custom has not been clearly proved to be applicable. The Court emphasized that the spirit of customary law, any theoretical construct of custom, or deductions drawn from other customs do not constitute a rule of decision. Only a custom that is applicable to the parties concerned and that has been properly established may be used. Consequently, when either party to a suit relies on a custom as the basis for the decision, the burden of proof lies with that party to demonstrate the existence and content of the custom. If the party fails to meet this burden, clause (b) of section 5 of the Punjab Laws Act becomes operative, and the decision must be based on the personal law of the parties, subject to the other provisions of the same clause.
This principle was affirmed by the Judicial Committee of the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero (1906) P.R. No. 110 (F.B.). The same reasoning was reiterated in Vaishno Ditti v. Rameshri, where the Judicial Committee observed that by placing “custom” at the forefront as the rule of succession while leaving the particular custom to be established, the Legislature intended to acknowledge that, in that part of India, inheritance and related matters are largely governed by a variety of customs that differ from the ordinary rules of Hindu and Mohammedan law.
The pleadings in the present matter further demonstrate a unanimous view that the rights of the parties must be adjudicated in accordance with the applicable customary law rather than the rules of Hindu law. The Court therefore turned to the general custom relevant to adoption, which is set out in Rattigan’s Digest of Civil Law for the Punjab, 13th edition, page 572. Article 48 of that Digest states that an heir appointed in the manner described does not lose his right to succeed to property in his natural family against collaterals, although he does not succeed in the presence of his natural brothers. Article 49 provides that the heir does not acquire a right to succeed to the collateral relatives of the person who appoints him where no formal adoption has taken place, because the relationship between the heir and the appointer is purely personal.
According to Rattigan, such an adoption is irrevocable and an adopted son cannot relinquish his status. This position is supported by the authorities cited as (1917) L.R. 45 I.A. 10 and (1928) L.R. 55 I.A. 107, 421. Article 52 further outlines the rights of the adopted son, stating that the appointed heir succeeds to all the rights and interests held or enjoyed by the appointer and would succeed equally with a natural son who may be born later. A long series of decisions of the High Court of Lahore and the High Court of Punjab have consistently held that the relationship created between the appointed heir and the appointer, commonly referred to as adoption, is a purely personal relationship and does not extend beyond the contracting parties.
In the case that the Court examined, the custom of adoption described was likened to the Kritrima form of adoption recognised under Hindu law. The Court referred to the decision in Mela Singh v. Gurdas, where Sir Shadi Lal, Chief Justice, had observed that a customary adoption in the Punjab does not dissolve the kinship tie with the natural family, and that the imagined blood relationship with members of the adoptive family does not apply to the appointed heir. He further explained that the connection created between the person who makes the appointment and the person who is appointed is purely personal and does not extend beyond the two contracting parties. The Court then cited Jagat Singh v. Ishar Singh, noting that the limitation which prevents an adopted son from succeeding while his natural brothers are alive pertains only to his succession to his natural father and does not affect his right to succeed to collateral property in his natural family. A similar perspective was expressed in the judgments of Kanshi Ram v. Situ and Rahmat v. Ziledar. In Rahmat v. Ziledar the Court recorded that, according to the general custom of the province, a person who is appointed as heir to a third party does not thereby lose his right to inherit the property of his natural father. However, the Court clarified that the appointed heir and his lineal descendants have no right to succeed to the natural father’s property against the other sons of that natural father and their descendants. The appointed heir may inherit from his natural father only when the only other claimant is a collateral heir of the natural father.
The respondents’ counsel argued that the general custom described by Rattigan should be displaced by a special custom applicable to a particular district, as documented in the Riwaj‑i‑am of Ferozepore District prepared by Mr Currie during the settlement of 1914. They relied on the answers recorded to Questions 76 and 77, which addressed the consequences of adoption. The recorded answer to Question 76 stated that, in general, an adopted son does not retain the right to inherit from his natural father, except to the extent that a share of the property would pass to his adoptive father as a collateral heir. The respondents noted that the Sodhi community, however, contended that an adopted son could inherit his natural father’s estate if the natural father left no male descendants, while the Niphal community maintained that the adopted son could inherit from both his natural and adoptive fathers. The answer to Question 77 described the rights of an adopted son to inherit from his adoptive father, the effect of the later birth of legitimate sons to the adoptive father, whether the adopted son would share equally with those later‑born sons, and how the share of the adopted son would be determined under the chundawand system of inheritance when natural legitimate sons are born after the adoption.
In response to the query about an adopted son whose tribe differs from that of his adoptive father, the answer clarified that the adopted son possesses exactly the same inheritance rights from his adoptive father as a natural legitimate son. If the family follows the chundawand system, inheritance is effected according to that rule. Various communities—including the Nipals, Rajputs, Arains, Moghals, Sayyads, Gujjars and Muhammadan Jats—state that an adopted son belonging to a different got assumes the got of his adoptive father, whereas an adopted son belonging to a different tribe is barred from inheriting. The answer further observed that, as a matter of practice, elderly men who lack male heirs and therefore adopt are unlikely to have legitimate sons born after the adoption, making such scenarios rare.
The Court noted that when a conflict arises between the general custom recorded in Rattigan’s Digest of Customary Law and the locally specific Riwaj‑i‑am, the latter ordinarily prevails. The Court cited Jai Kapur v. Sher Singh, observing that “There is, therefore, an initial presumption of correctness as regards the entries in the Riwaj‑i‑am and when the custom as recorded in the Riwaj‑i‑am is in conflict with the general custom as recorded in Rattigan’s Digest or ascertained otherwise, the entries in the Riwaj‑i‑am should ordinarily prevail except that as was pointed out by the Judicial Committee in Mt. Subhani v. Nawab [A.I.R. 1941 (1) [1960] 3 S. C.,R, 975. 979. (P. C.) 21], ‘that where, as in the present case, the Riwaj‑i‑am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it.’” Accordingly, the Court held that, prima facie, the Riwaj‑i‑am prevails to the extent of any inconsistency with the customs recorded in Rattigan’s Digest, and that the party asserting a different custom or incident bears the burden of proving it. The Court therefore directed attention to whether any real inconsistency exists between the customs recorded in Rattigan’s Digest and the relevant entries in the Riwaj‑i‑am. The general rule found in Rattigan’s Digest states that a person adopted according to community custom, and thereby appointed as heir to property outside the family, does not lose his right to inherit from his natural family, except that he may be excluded from inheriting his natural father’s property when natural brothers exist. In such cases, the natural brothers would take the property to the exclusion of the adopted son and his descendants. Question 76 in the Riwaj‑i‑am primarily concerns the right of an adopted son to retain his right to inherit the
In the material recorded, the answer to the inquiry concerning the adopted son’s right to inherit his natural father’s estate stated that the adopted son could not inherit the property of his natural father, except to the extent that such property would later devolve upon his adoptive father as a collateral of the adopted son’s natural father. The Court noted that the question had been framed solely to determine whether the adopted son was entitled to inherit the estate of his natural father; it had not been intended to explore any entitlement of the adopted son to inherit the property of collateral relatives of the natural father. The fact that the answer expressly mentioned a right of inheritance only to the estate that would pass to the adoptive father as a collateral of the natural father reinforced the view that the village elders, in answering, were concerned exclusively with the adopted son’s right to inherit his natural father’s property and did not intend to discuss any collateral succession rights within the natural family. The response to the subsequent question, numbered 77, further corroborated this interpretation. When the elders were asked to describe the rights of an adopted son to inherit the estate of his adoptive father, they responded that the adopted son possessed exactly the same inheritance rights from his adoptive father as a natural legitimate son. Counsel appearing for the defendants, identified as Mr Bindra, argued that questions 76 and 77 were meant to ascertain the customs of the district relating both to the adopted son’s rights in his natural family and to his rights in the family of his adoptive father, and that the answers should be read in that broader context. The Court expressed that it could not accept this suggested construction of questions 76 and 77 and the information obtained therefrom. It observed that the Riwaj‑i‑am had been meticulously compiled by officers of standing and experience, and that the enquiry it contained was limited to the rights of an adopted son to inherit the property of his natural father and of his adoptive father. The Court further recognised that a discrepancy existed between the custom recorded in Rattigan’s Digest and that recorded in the Riwaj‑i‑am. While Rattigan’s Digest states that an heir appointed in another family does not succeed to his natural father when natural brothers are present, the Riwaj‑i‑am records that the adopted son does not directly inherit the estate of his natural father in any circumstance. However, the Court clarified that it was not required to resolve that inconsistency for the present matter. It was sufficient to note that Article 48 of Rattigan’s Digest records that an heir appointed in the manner described—that is, an adopted son—does not thereby lose his right to succeed to property in his natural family, and that no contradictory provision appears in the Riwaj‑i‑am of the district. Finally, Mr Bindra contended that, irrespective of the foregoing, there was clear evidence of instances of devolution of property within the families of the parties, indicating that a son adopted into another family…
In the first instance, counsel relied on Exhibit D‑5, an extract from the mutation register concerning certain agricultural lands in the village of Umri Ana. The extract showed that when Hamir Singh died, the estate was initially entered in the names of his three sons. Subsequently, on 28 May 1884, the village Patwari, Salig Ram, reported that two of Hamir’s sons, Kahan Singh and Chuhar Singh, claimed that Ghuda Singh had never possessed the one‑third share recorded in his name and that Ghuda himself had admitted having no interest in that share and should be removed. Acting on this report, the Assistant Collector ordered that the lands be entered solely in the names of Kahan Singh and Chuhar Singh and that Ghuda Singh’s name be deleted from the mutation entry, directing that the Jamabandi records be amended accordingly. This exclusion of Ghuda Singh from his father’s estate aligns with the custom recorded in Rattigan’s Digest, which in Article 48 states that an appointed heir retains a right to succeed to property in his natural family against collaterals, but he does not succeed when his natural brothers are present. Since Kahan Singh and Chuhar Singh were Ghuda’s natural brothers, and Ghuda had been adopted, the custom expressly prevented him from inheriting his father’s estate in the presence of those brothers.
The second instance concerned the succession of Chuhar Singh’s estate after his daughter Bishno’s remarriage. Upon Chuhar Singh’s death, his property was entered in Bishno’s name, but when Bishno entered into a Karewa marriage according to the customs of the community, the estate held by her was subsequently entered in the names of Rura Singh and Bhola Singh, who were sons of Kahan Singh. Exhibit R D‑1, another mutation register entry, records that Ghuda Singh, who was the Lambardar, appeared before the Tehsildar, identified Bishno, and stated that she had contracted a Karewa marriage with Jawala Singh, further admitting that Rura Singh and Bhola Singh were entitled to take her property. Based on this admission, the Tehsildar directed that the mutation concerning succession be sanctioned in favor of Rura Singh and Bhola Singh, granting them equal shares. This occurrence also does not demonstrate a departure from the custom noted in Rattigan’s Digest, as the genealogy and the mutation extract clearly show that the entry was made due to Bishno’s remarriage. The community’s custom, as explained, holds that a daughter inherits property from her father but loses that interest upon marriage, with the property then devolving to the father’s collaterals. Therefore, the mutation after Bishno’s remarriage is consistent with that customary rule.
According to the custom described by counsel, a daughter who marries is divested of her father’s property, and that property consequently devolves upon the father’s collateral relatives. Under the same custom, when Bishno remarried, the succession was said to open and, by her own admission, Ghuda Singh was excluded from any claim. Counsel argued that this circumstance constituted a strong instance of departure from the custom recorded in Rattigan’s Digest. However, if the prevailing community custom, as asserted by the counsel, indeed caused Bishno to lose her interest in her father’s estate at the time of her first marriage, it becomes difficult to understand how she could have acquired title or continued to hold the property contrary to that custom after her first marriage. The record shows that the alleged transfer of the property to Rura Singh and Bhola Singh occurred not because of her first marriage but because of her remarriage. The question why Bishno did not forfeit her right to the property on her first marriage, yet apparently did so on her remarriage, remains unexplained and left in obscurity.
The learned judges of the High Court observed that the mere fact that Ghuda Singh permitted the estate to pass to the descendants of Kahan Singh was insufficient by itself to establish a new custom as alleged by the respondents. They further held that isolated, uncontested instances carried little weight in proving a customary rule. The judges noted that the argument would have gained considerable strength only if it could be shown that Ghuda Singh or any of his descendants had inherited collaterally within the family of Bhan Singh. Apart from Ghuda Singh’s succession to Bhan Singh’s estate, which aligns with the general customary practice, no proof of collateral succession was established. Moreover, the single instance of Chuhar Singh’s estate devolving upon Kahan Singh’s descendants with Ghuda Singh’s consent did not demonstrate a custom contrary to that set out in Rattigan’s Digest. The Supreme Court found no basis to disagree with this view. Accordingly, the appeals were dismissed with costs, and the order of dismissal stood affirmed.