Appeal No 124 of 1951
Appeal by Special Leave granted by His Majesty in Council dated the 30th October 1945 from the Judgment and Decree dated the 12th July 1944 of the High Court of Judicature at Lahore in Civil Regular Second Appeal No 450 of 1942 against the Judgment and Decree dated the 14th January 1942 of the Court of the District Judge Gurdaspur in Appeal No 91 of 1941 arising from the Judgment and Decree dated 31st July 1941 of the Court of Senior Subordinate Judge Gurdaspur in Suit No 80 of 1940
G section Vohra and Harbans Singh for the appellants
Achhru Ram J B Dadachanji and R N Sachthey with him for respondents
45 1954
April 1
The Judgment of the Court was delivered by 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 cone currently by the trial Court and the Court of the District Judge Gurdaspur
The two appellants are admittedly the first cousins of the respondent Harnam Singh and belong to village Gillanwali Tahsil Batala District Gurdaspur
Gurmej Singh respondent No 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 Gurmej 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 is 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 a 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 46 conclusion on a decision of Tek Chand J in Jowala vs Diwan Singh 1 and the Privy Council decision in Basant Singh vs Brij Raj Saran Singh 2
The first question regarding the factum of adoption need not detain us long
The deed of adoption Exhibit D 1 recites that Harnam Singh had no male issue who could perform his kiry a 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 en joying all rights of a son
He had executed a formal document in his favour in order to put an end to any dispute 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
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 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 recognised the adoption of a daughter s son are the Sayyads of the Shakargarh and the Arains of the Gurdaspur Tahsil
The Brahmans of the Batals Tahasil state that only such of them as are not agriculturists by occupation recognize such adoption
The Muhamadan Jats of the 1 2 ILR 57 All 494
47 Gurdaspur
Tahsil could not come to an agreement on this point
The remaining tribes recognise the adoption of War collaterals only
The right of selection rests with the person adopting
The Khatris Brahmans and Bedis and Sodis of the Gurdaspur Tahsil however state that the nearest collaterals cannot be sperseded and selection should always be made from among them It is contended for the appellants that the expression  near collaterals only  must be construed to mean a collateral up to the third degree and does not cover the case of a remote collateral in the 8th degree
The restriction as regards the degree of relationship of the adoptee it is urged is mandatory and cannot be ignored
The expression  near collaterals  is not defined by the custom
The relevant answer which we have underlined above gives no indication as to the precise import of the words  near collaterals
 The custom recorded in the Riwaj i am is in derogation of the general custom and those who set up such a custom must prove it by clear and unequivocal language
The language is on the face of it ambiguous and we can see no warrant for limiting the expression to signify collateral relationship only up to a certain degree and no further
We are also of opinion that the language used amounts to no more than an expression of a wish on the part of the narrators of the custom and is not mandator
If the intention was to give it a mandatory force the Riwaj i am would have avoided the use of ambiguous words which are susceptible of a conflicting interpretation
The provision that the right of selection rests with the person adopting also detracts from the mandatory nature of the limitation imposed upon the degree of relationship
Though the adoption of what the custom describes as near collaterals only was recognized by the community of Jats the right of selection was left to the discretion of the adopter
There is no meaning in conferring a discretion upon the adopter if he is not allowed to exercise the right of selection as between collaterals inter se
We are unable to read into the answer a restriction upon the choice of the adopter of any particular collateral however near in degree he may be 48 In his valuable work entitled Digest of Customary Law in the Punjab Sir WH Rattigan states in paragraph 35 that a sonless proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir and in paragraph 36 that there is no restriction as regards the age or the degree of relationship of the person to be appointed
It appears to us that the basic idea underlying a customary adoption prevalent in the Punjab is the appointment of an heir to the adopter with a view to associate him in his agricultural pursuits and family affairs
The object is to confer a personal benefit upon a kinsman from the secular point of view unlike the adoption under the Hindu Law where the primary consideration in the mind of the adopter if a male is to derive spiritual benefit and if a female to confer such benefit upon her husband
That is why no emphasis is laid on any ceremonies and great latitude is allowed to the adopter in the matter of selection
Mulla in his well known work on Hindu Law says It has similarly been held that the texts which prohibit the adoption of an only son and those which enjoin the adoption of a relation in preference to a stranger are only directory therefore the adoption of an only son or a stranger in preference to a relation if completed is not invalid
In cases such as the above where the texts are merely directory the principle of factum valet applies and the act done is valid and binding Page 541
We see no reason why a declaration in a Riwaj i am should be treated differently and the text of the answer should not be taken to be directory
However peremptory may be the language used in the answers given by the narrators of the custom the dominant intention underlying their declarations which is to confer a temporal benefit upon one s kinsmen should not be lost sight of
A number of cases have been cited before us to show that in recording the custom the language used was of peremptory nature and yet the Courts have held that 49 the declarations were merely directory and non compliance with those declarations did not invalidate the custom
In Jiwan Singh and Another vs Pal Singh and Another1 Shah Din and Beadon JJ
held that by custom among Randhawa Jats of Mauza Bhangali Tahsil Amritsar the adoption by a registered deed of a collateral in the 9th degree who is of 16 years of age is valid in the presence of nearer collaterals
 The adoption was objected to on the ground that the adoptee was a remote collateral and that he was not under the age of twelve at the time of the adoption as required by the Riwaj i am
The learned Judges held that the provision as regards the age was recommendatory and not of a mandatory character
In Sant Singh vs Mula and Others  Robertson and Beadon Jj
held that among Jats and kindred tribes in the Punjab the general though not the universal custom is that a man may appoint an heir from amongst the descendants of his ancestor and that he need not necessarily appoint the nearest collateral
 This was a case where a distant collateral was preferred to a nearer collateral
The learned Judges expressed the opinion that the clause which points to the advisability of adopting from amongst near collaterals was nothing more than advisory
In Chanan  Singh vs Buta Singh and Others3 a case from Jullundur District the question and answer were as follows  Q No 71 Are any formalities necessary to constitute a valid adoption if so describe them
State expressly whether the omission of any customary ceremonies will vitiate the adoption  A 
The essence of adoption is that the fact of adoption be declared before the brotherhood or other residents of the village
The usual practice is that the Baradari gathers together and the adopter declares in their presence the fact of the adoption
Sweets are distributed and a deed of adoption is also drawn up
If 1 22 PR 2 44 PR 3 AIR 1935 Lah
7 50 these formalities are not observed the adoption is not considered valid
 The adoption was challenged on the ground that there was no gathering of the brotherhood
The learned Judges Addison and Beckett JJ held that it was immaterial whether there was or was not a gathering of the brotherhood at the time
It appears that the adopter had made a statement in Court acknowledging the appointment or adoption in question
The next day he celebrated the marriage of the boy as his son and thereafter he looked after his education and allowed him to describe himself as his adopted son or appointed heir and the boy lived with him as his son
The learned Judges held that the details given in the answers to questions in various Customary Laws were not necessarily mandatory but might be merely indicatory
In Jowala vs Dewan Singh1 Tek Chand J held that an adoption of a collateral in the fourth degree among Jats of Mauza Hussanpur Tahsil Nakodar District Jullundur is valid although nearer collaterals are alive He also held that an entry in the Riwaj i am as to the persons who can be adopted is merely indicatory
In a case from Delhi reported in Basant Singh and Others vs Brij Raj Saran Singh2the Privy Council held that the restriction in the Riwaj i am of adoption to persons of the same gotra is recommendatory and a person of a different gotra may be adopted
 Counsel for the appellants frankly conceded that he could cite no case where the declarations governing customary adoptions were held to be mandatory
Whether a particular rule recorded in the Riwaj i am is mandatory or directory must depend on what is the essential characteristic of the custom
Under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have therefore been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption
On the other hand under the 1 2 57 All 494 51 Customary Law in the Punjab adoption is secular in character the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid
There is no substance in the appeal and we dismiss it with costs
Appeal dismissed


Summary:
Held that under the Customary Law of Gurdaspur District Punjab applicable to the Gill Jats of village Gillanwali the adoption of a collateral of the 8th decree is not invalid
The answer to question 9 in Customary Law of the Gurdaspur District that the adoption of near collateral only should be recognised is not mandatory but directory
Under the Customary Law in the Punjab adoption is secular in character the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid
Jiwan Singh and Another vs Pal Singh and Another 22 PR 1913 at p 84 Sant Singh vs Mula and Others 44 PR 1913 at p 173 Charan Singh vs Butta Singh and Others AIR  Jowala vs Dewan Singh  and Basant Singh and Others vs Brij Raj Saran Singh ILR 57 All 494 referred to