Judgment

GHULAM HASAN, J.: This is an appeal by special leave granted by the Privy Council against the judgment and decree dated July 12, 1944, of a Division Bench of the High Court at Lahore passed in second appeal confirming the dismissal of the appellants suit concurrently by the trial court and the court of the District Judge, Gurdaspur.

2. The two appellants are admittedly the first cousins of the respondents Harnam Singh and belong to village Gillanwali, Tahsil Batala, District Gurdaspur. Gurmej Singh respondent 2 is a collateral of Harnam Singh in the 8th degree. The appellants sued for a declaration that the deed of adoption executed by Harnam Singh on July 30, 1940, adopting Garmej Singh was invalid and could not affect the reversionary rights of the appellants after the death of Harnam Singh .The appellant s case was that under the Customary Law of Gurdaspur District applicable to the Gill Jats of village Gillanwali, Harnam Singh could only adopt a near collateral" and Gurmej Singh being a distant collateral his adoption was invalid.

The defence was a denial of the plaintiffs claim. Both the trial Judge and the District Judge on appeal held that the factum and the validity of the adoption were fully established. In second appeal Trevor Harries C. J. and Mahajan J. (as he then was) held that there was sufficient evidence of the factum of adoption as furnished by the deed and the subsequent conduct of Harnam Singh. They held that all that was necessary under the custom to constitute an adoption was the expression of clear intention on the part of the adoptive father to adopt the boy concerned as his son and this intention was clearly manifested here by the execution and registration of the deed of adoption coupled with the public declarations and treatment as adopted son.

Upon the legal validity of the adoption the High Court found that the answer to Question 9 of the Riwaj-I-am of Gurdaspur District of the year 1913 laying down that the adoption of "near collaterals only" was recognised was not mandatory. The High Court relied in support of their conclusion on a decision of Tek Chand J. in - Jowala v. Dewan Singh , AIR 1936 Lah 237 (A) and the Privy Council decision in Basant Singh v. Brij Raj Saran Singh , AIR 1935 PC 132 (B).

3. The first question regarding the factum of adoption need not detain us long. The deed of adoption exhibit (D1) recites that Harnam Singh had no male issue who could perform his kirya karam ceremony after his death, that Gurmej Singh had been brought up while he was an infant by his wife and that he had adopted him according to the prevailing custom. The recital continues that since the adoption he had been treating and calling Gurmej Singh as his adopted son.

This fact was well-known in the village and the adoptee was enjoying all rights of a son. He had executed a formal document in his favour in order to put an end to any disputes which might be raised about his adoption. As adopted son he made him the owner of all of his property. We are satisfied that there is ample evidence to sustain the finding on the factum of adoption.

4. The main question which falls to be considered is whether under the terms of the Riwaj-i-am applicable to the parties, Gurmej Singh being a collateral of Harnam Singh in the 8th degree, could be validly adopted. The custom in question is founded on Question 9 and its Answer in the Customary law of the Gurdaspur District. They are as follows:

"Question 9. Is there any rule by which it is required that the person adopted should be related to the person adopting? If so, what relatives may be adopted? Is any preference required to be shown to particular relatives? If so, enumerate them in order of preference. Is it necessary that the adopted son and his adoptive father should be (1) of the same caste or tribe: (2) of the same got ?

Answer : The only tribes that recognise the adoption of a daughter s son are that Sayyads of the Shankargarh and the Arains of the Gurdasp