Under the customary law of Jats in Amritsar District, a customary adoption that is a mere appointment of an heir does not confer on the adopted son the right to succeed collaterally in the adoptive father's family.

Judgement

BACHAWAT, J. : The parties are Aulakh Jats of Tehsil Ajnala in Amritsar District, and are governed by customary law in matters of succession and adoption. The dispute concerns succession to the property of one Santa Singh alias Din Mohammad. Santa Singh has not been heard of for a long time and is presumed to be dead. The revenue authorities sanctioned mutation of the lands left by him in favour of the defendants, who are his collaterals of the 8th degree. One Megh Singh was the collateral of Santa Singh in the 5th degree. Megh Singh died more than 50 years ago. Before his death, he adopted his daughter s son, one Kala Singh. Kala Singh has died leaving his sons, Dewan Singh and Gian Singh as his heirs. Dewan Singh and Gian Singh instituted a suit in the Court of the Subordinate Judge. First Class, Ajnala praying for a decree for possession of the lands left by Santa Singh and alleging that Megh Singh adopted Kala Singh as his son, took him out of his natural family, transplanted him completely in the family of Megh Singh and bestowed on him the rights of a natural son, according to the custom by which the parties were governed, Kala Singh was entitled to succeed as a reversionary heir in the family of his adoptive father and was the preferential heir of Santa Singh. The contesting defendants alleged that the adoption of Kala Singh amounted to the appointment of an heir only and they denied that according to custom Kala Singh was the reversionary heir of Santa Singh or entitled to inherit his lands.

2. The Subordinate Judge, Ajnala and the District Judge, Amritsar, concurrently held that the adoption of Kala Singh was the usual customary appointment of an heir. The trial Court also held that by the custom of Jats in Amritsar District an appointed heir was entitled to succeed collaterally in the family of his adoptive father and consequently, Kala Singh was the preferential heir of Santa Singh. On appeal, the District Judge, Amritsar, set aside the decree passed by the trial Court, and dismissed the suit. He held that according to custom, the adoption of a daughter s son was not permissible and the adoption of Kala Singh was, therefore, invalid. He also held that under the customary law an adopted son could not succeed collaterally in his adoptive father s family if he was a non-agnate, or if he did not belong to the Got of his adoptive father. On second appeal, the High Court set aside the order of the District Judge, Amritsar, and restored the decree passed by the trial Court. The High Court held that it was not open to the defendants to challenge the validity of the adoption of Kala Singh, as the point was not in issue between the parties, and under the customary law, Kala Singh, as the adopted son of Megh Singh, was entitled to succeed collaterally in his adoptive father s family. Some of the defendants now appeal to this Court on a certificate granted by the High Court.

3. In agreement with the High Court we hold that it is not open to the defendants to contend that the adoption of Kala Singh by Megh Singh was invalid. In the written statement, the defendants did not allege that Megh Singh had no power to adopt Kala Singh, as Kala Singh was the daughter s son of Megh Singh. As the validity of the adoption was not in issue, the parties had no opportunity to lead any evidence on the question whether by the special custom of the parties Megh Singh could lawfully adopt his daughter s son.

4. The substantial point in controversy between the parties is whether by the custom governing the Jats of Amritsar District Kala Singh was entitled to succeed collaterally in the family of his adoptive father. Some general customs as to adoption are found to exist in the Punjab, and they are collected in Rattigan s Digest of Customary Law. Some of the customs observed in the several Districts and Tehsils of the Punjab are collected in the Riwaj-i-ams. There is a presumption that the entries in the Riwaj-i-am are correct, and if there i