Judgement

MAHAJAN C.J.I. : The facts giving rise to this appeal lie within a narrow compass, and can be shortly stated. One Bishan Singh, a Sikh Jat belonging to the Dhande tribe, was the owner of the land in dispute which is situated in Patti-Gainda of village Naraingarh in the State of PEPSU.

On 8-4-1935 he adopted Jangir Singh, the plaintiff in the suit, by means of a registered deed and declared therein that Jangir Singh would inherit to all his movable and immovable properties after his death. Bishan Singh died sometime in April 1944. The mutation of the land, after his death, was entered in the name of Jangir Singh but possession of it was taken by the defendants who are direct descendants of Gainda and are collaterals of Bishan Singh in the fifth degree.

In this situation Jangir singh filed the present suit for possession alleging that he being the adopted son of Bishan Singh was entitled to succeed to the property. The defendants denied the factum and validity of his adoption, and further pleaded that the land in suit was ancestral property of Bishan Singh and under custom he had no right to dispose it of.

2. On the pleadings of the parties the trial Judge framed four material issues :

(1) Whether the plaintiff was adopted by Bishan Singh?

(2) Whether the adoption was valid?

(3) Whether the defendants were collaterals of Bishan Singh?

(4) Whether the property in dispute was ancestral qua the defendants?

Issue No. 1 was decided in favour of the plaintiff but all the other issues were decided against him. In the result the plaintiff s suit was dismissed, the parties being left to bear their own costs. On issue No. 4 the learned Judge held that from the extract of the record of rights placed by the defendants on the record and the copy of the pedigree table it was clear that the land in dispute was ancestral qua the descendants of Gainda, the common ancestor of this family.

The adoption of the plaintiff was held invalid on the ground that according to custom Bishan Singh could not adopt a descendant of his maternal grandfather and it was only a collateral or an agnatic relation who could be adopted amongst the Jats of these parts.

3. The decision of the trial Judge was affirmed in appeal by the District Judge who also took the view that a stranger to the family of the adopter could not be adopted under custom by which the parties were governed. On the ancestral nature of the property the learned District Judge observed as follows :

"The pedigree table of family No. 9 shows that the defendants are collaterals of Bishan Singh deceased in about the 5th degree. The common ancestro was Gainda, who had seven sons, namely, Chandu, Nagahia, Raja Ram, Himmata, Samonda, Lakha and Dayala. The holdings shown are Chandu 122 bighas 15 biswas, Nagahia 115 bighas 8 Biswas, Raja ram 123 bighas 2 Biswas, Himmata 115 Bighas 11 Biswas, Samonda 122 bighas 16 biswas, Lakha 125 bighas 11 biswas and Dayala 129 bighas. It will be observed that the holdings of Chandu, Raja Ram, Samonda and Lakha are almost equal, and those of Nagahia and Himmata are again almost equal, and that of Dayala is somewhat larger than the others.

In the Pemana Haqiat the descendants of each branch are shown to hold land as 1/7th share of the total area. This leads to the conclusion that the land of Gainda, the common ancestor, was divided into seven shares and each one of the seven sons got 1/7th share of the whole and consequently the descendants of each son are shown to possess shares of the that 1/7th. The slight disparity in the areas held by these seven brothers must be due to the quality of the land, because out of seven brothers two hold almost equal areas and again three hold equal areas."

The plaintiff having been unsuccessful in the first two courts preferred a second appeal to the High Court of PEPSU. This appeal was in the first instance heard by a single Judge who expressed of doubt as to the correctness of the opinion of the two courts below regarding their decisions on