2008 Supreme(P&H) 1159

2009 (1) RCR(Civ) 911
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RANJIT SINGH, J.
Shamsher Singh -Appellant
Versus
Gobind Singh and others -Respondents
REGULAR SECOND APPEAL NO.119 OF 1982
Decided on: July 02, 2008

Headnote:

Appellant claimed right and title to the property being an adopted son. He remained unsuccessful in suit which he filed and in the first appeal and thus has challenged both the verdicts by filing the present Regular Second Appeal. Dispute goes to pre-partition era and present appeal is pending since 1982. Even the appellant-plaintiff is no more and stands substituted by his L.Rs. Similarly some of the respondents also stand substituted by their L.Rs. on their death and this is so reflected in the amendments carried out in the memo of parties from time to time. Even now, one application is pending adjudication whereby prayer has been made for impleading Gursharan Kaur as respondent No.18 under Order 1 Rule 10 CPC. This application was filed once the arguments in the case were heard and the judgment reserved. The applicant claims herself to be legal heir of Sham Kaur wife of Ganda Singh, whose property is in issue in the present appeal. It is not made clear in the application as to how the applicant has woken to be heard now and where she has remained though suit was filed in the year 1976 and decided in 1979. This application accordingly has been opposed by the respondents and the same shall be dealt with after making reference to the controversy that requires adjudication in the present case.

Fact of the Case:

Appellant claimed right and title to the property being an adopted son. He remained unsuccessful in suit which he filed and in the first appeal and thus has challenged both the verdicts by filing the present Regular Second Appeal. Dispute goes to pre-partition era and present appeal is pending since 1982. Even the appellant-plaintiff is no more and stands substituted by his L.Rs. Similarly some of the respondents also stand substituted by their L.Rs. on their death and this is so reflected in the amendments carried out in the memo of parties from time to time. Even now, one application is pending adjudication whereby prayer has been made for impleading Gursharan Kaur as respondent No.18 under Order 1 Rule 10 CPC. This application was filed once the arguments in the case were heard and the judgment reserved. The applicant claims herself to be legal heir of Sham Kaur wife of Ganda Singh, whose property is in issue in the present appeal. It is not made clear in the application as to how the applicant has woken to be heard now and where she has remained though suit was filed in the year 1976 and decided in 1979. This application accordingly has been opposed by the respondents and the same shall be dealt with after making reference to the controversy that requires adjudication in the present case.

Finding of the Court:

The courts below have concurrently held that valid adoption of Shamsher Singh by Ganda Singh is not established. Accordingly, to a custom, adoption of daughter's son was not permissible and it has been urged that even adoption would be invalid on this count. As held in Kehar Singh v. Dewan Singh, AIR 1966 SC 1555 a customary adoption in Punjab is ordinarily no more than a mere appointment of an heir creating a personal relationship between the adoptive father and the appointed heir only. The general custom negativing the right of the appointed heir to succeed collaterally in the family of adopted father is stated in Art.49 of Rattigan's Digest as per which relationship is purely personal one. In Kehar Singh's case (supra), the Hon'ble Supreme Court has taken note of Riwaj-i-am recognising the adopted son's right to collateral succession in adoptive father's family should be taken to apply to cases of customary formal adoption and not to cases of adoption by way of customary appointment of heirs. It is a question of fact in each case whether the adoption by a Jat is formal or informal. The adoption is stated to be formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he cases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes member of the adoptive father's family and acquires a right of collateral succession in the family. It has been found a fact that the late appellant Shamsher Singh could not succeed in showing a clear intention that there was a complete change of family. Appellant was continuously shown as son of his natural father in the records which would rather indicate that the parties did not manifest any intention of change in the family of appellant.

Issues: 1. Whether the plaintiff is adopted son of Ganda Singh? 2. Whether the plaintiff and Smt.Sham Kaur inherited the property of Ganda Singh in 1948 to the extent of ½ share, each? 3. Whether the defendants 1 to 5 are the next heirs of Smt.Sham Kaur? 4. Whether the judgment dated 16.12.59 of the court of Sub Judge Ist Class, Kharar operates as resjudicata? 5. Whether Ganda Singh was the owner of the entire property in dispute? 6. Whether the suit is properly valued for purposes of court fee? 7. Whether the parties are governed by custom in the matters of adoption and succession. If so, what the custom is? 8. Whether the suit is within time? 9. Whether Smt.Sham Kaur deceased held the property in suit in trust and was a benami for the plaintiff? 10. Whether the plaintiff is entitled to succeed to Sham Kaur as her adopted son? 11. Whether Sham Kaur and defendants 1 to 5 became the owners by adverse possession? 12. Whether the defendants 1 to 5 got the land redeemed as mortgaged by Sham Kaur and what is its effect? 13. Whether the plaintiff is entitled to the declaration or possession of the suit land? 14. Relief.

Ratio Decidendi: The legal position that would emerge from the custom as noticed above, would appear to be so. It has rightly been urged by the counsel for the respondent-defendants that even it be conceded, only for the sake of arguments that adoption of Shamsher Singh is somehow seen, then it is informal and under customary law and he would not become a son of Sham Kaur and Ganda Singh and it will only create a personal relationship between Ganda Singh and Shamsher Singh, the latter having been appointed as an heir and nothing more. No efforts were made to show that the adoption was formal and manifested by prior or subsequent intention. Rather the case set up in the plaint is that appellant-plaintiff was adopted as per the customs and as such this would only mean an appointment of an heir by sonless proprietor and thus it only created a personal relationship between the appointor and the appointed heir.

Final Decision: Appeal dismissed.