A deed of adoption, where the adoption is not proved, may operate as a gift or a testamentary disposition, depending on the language of the deed and the surrounding circumstances.

Mehar Singh, J.

1. On May 31, 1956, Kartar Singh, a Jat of village Odyala in Tehsil Kharar of Ambala district, executed the adoption deed, Exhibit D-2, adopting Ranjit Singh, appellant in this second appeal, as a son to himself. They were governed in the matter of adoption by the rules of Punjab Customary Law and so the adoption deed was a deed making a customary appointment of an heir. Ranjit Singh, appellant, is the grandson of the real uncle of Kartar Singh. In this deed it is recited that he had already adopted Ranjit Singh when the latter was of 6 or 7 years of age. So that was some 29 or 30 years before the date of the deed. The deed further recites that certain ceremonies had been carried out and that ever since Kartar Singh had brought up Ranjit Singh appellant as real son. It then says--

"Ranjit Singh Mazkoor Pisar Mutbanna Min Mukar Ka Hai Aur Usko Men Hayat Men Aur Mere Maine Ke Baad Bamissal Farzandan Salbi Ke Haqooq Hasil Hain Aur Rahenge." and this may be translated in this manner-- "The aforesaid Ranjit Singh is my adopted son and during my lifetime he has and after my death he will have rights like natural sons." In the deed there is no reference to the property of Kartar Singh. Death of Kartar Singh occurred on June 16, 1958. He left behind immovable property, of which description sufficiently appears in the plaint by Hamam Singh, who was a third-degree collateral of Kartar Singh in which he sought his share of the inheritance of Kartar Singh on the ground that the immovable property left by the latter was ancestral qua him and that, in any case, no adoption in fact ever took place, further pleading that the adoption deed was no more than a mere paper transaction. Harnam Singh died during the pendency of the suit and has been represented by his two sons, Garja Singh and Bhajan Singh, respondents in this second appeal. The broad defences of Ranjit Singh, appellant, were that the land was not ancestral qua Harnam Singh plaintiff and Kartar Singh deceased, that he was duly adopted according to custom, with proper ceremonies, followed by the deed of adoption, Exhibit D-2, and that, in any case, the deed of adoption operated as a will. So that the property being non-ancestral, the plaintiff had no claim against him.

2. The trial Judge found that the property is non-ancestral so far as Harnam Singh plaintiff is concerned, and this is a matter which was not in controversy in appeal before the District Judge. The trial Court further found that the adoption of Ranjit Singh appellant by Kartar Singh at the age of 6 or 7 years was not proved, the evidence in that respect having been found unreliable, and that the adoption deed, Exhibit D-2, was nothing more than a mere paper transaction, reciting an adoption which had in fact never taken place. This finding has been affirmed by the District Judge on appeal, after review of the whole evidence on this matter. Both the Courts have also come to the conclusion that there was no evidence that Kartar Singh ever treated Ranjit Singh appellant as a son and in fact there was evidence to the contrary that he did not do so and could not have done so. The two Courts have concurred in this that the adoption deed, Exhibit D-2, on its language and terms cannot be read operating either as a gift deed of his property by Kartar Singh to Ranjit Singh appellant or a testamentary disposition of the same after his death by Kartar Singh.

3. In second appeal, when the matter came for hearing before my learned brother. Mahajan, J., Ishar Singh V/s. Surat Singh, (1923) ILR 4 Lah 356 = (AIR 1924 Lah 103) and Shib Singh V/s. Suba Singh, AIR 1935 Lah 658, were referred to during arguments by the learned counsel, and sensing a certain inconsistency in the two decisions, either decision being by a Division Bench, he made a reference of the matter to a larger Bench. The matter that requires consideration may be stated in this manner "Where the property is non-ancestral and the adoption is found