R.S.A. No. 123 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 123 of 2008 (O&M) Date of decision: 11.05.2009 Harnek Singh ....appellant versus Sarup Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. J.S. Chahal, Advocate, for the appellant. Mr. Deepak Sharma, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This judgment shall dispose of R.S.A. No. 122 of 2008 titled Harnek Singh Vs. Pritam Singh and another and R.S.A. No. 123 of 2008 titled Harnek Singh Vs. Sarup Singh and others, as common questions of law and fact are involved. For brevity sake, facts are being taken from R.S.A. No. 123 of 2008. The plaintiff/appellant brought two suits for declaration to challenge the gift deed and consent decree suffered by defendant No. 1 Sarup Singh in favour of defendants No. 2 and 3 i.e. Hari Singh and R.S.A. No. 123 of 2008 (O&M) -2- Surjan Singh respondents herein. The plaintiff/appellant challenged the judgment and decree primarily on the ground, that he was adopted son of Sarup Singh. He was entitled to inherit the coparcenary property, as Sarup Singh could not dispose of the property being ancestral coparcenary property. The suit was contested by Sarup Singh deceased as well as defendants No. 2 and 3, wherein the validity of adoption deed set up by the plaintiff/appellant was challenged. The stand was also taken that the property in dispute was not ancestral in the hands of Sarup Singh, therefore, plaintiff/appellant had no right to challenge its alienation. The learned trial Court, on consideration of evidence, upheld the adoption deed by recording a finding that the plaintiff/appellant was the adopted son of Sarup Singh. The learned trial Court was also pleased to hold that the adoption deed set up by the plaintiff/appellant was not forged document, as claimed by the defendant/respondents. However, on issue No. 3, the learned trial Court was pleased to hold that the property in the hands of Sarup Singh defendant No. 1 was not ancestral property. In view of the finding on issue No. 3, the suit was ordered to be dismissed. The plaintiff/appellant challenged the judgment and decree passed by the learned trial Court by assailing the finding on issue No. 3, whereas defendant/respondents filed cross-objections to challenge the finding of the learned trial Court on issues No. 1 and 6. The learned lower appellate Court in view of the evidence on record, recorded a finding that the plaintiff/appellant was 23 years of age on the date of his alleged adoption. The learned lower appellate Court R.S.A. No. 123 of 2008 (O&M) -3- further held that it was proved on record, that he was also married. The learned lower appellate Court, therefore, came to the conclusion that the adoption deed set up by the plaintiff/appellant could not be upheld under the provisions of the Hindu Adoption and Maintenance Act, as no person above the age of 15 years, and who is married can be adopted. The learned lower appellate Court was further pleased to hold that though the custom over-rides the statute i.e. Adoption and Maintenance Act, but in order to succeed it was incumbent upon the plaintiff/appellant to have pleaded and proved the custom under which the person of more than 15 years of age and married could be adopted. The learned lower appellate Court held, that as there was no pleading, that the parties were governed by customary law which permitted adoption of a person beyond 15 years of age and married, the adoption deed set up by the plaintiff/appellant, therefore, was not valid. Consequently findings on issues No. 1 and 6 were reversed. It was held that the property in the hands of Sarup Singh defendant No. 1, was ancestral coparcenary property, thus, findings on issue No. 3 were also reversed. The learned counsel appearing on behalf of the appellant contends, that the appeal raises the following substantial questions of law: - "1. Whether the learned lower appellate Court erred in law in ignoring the settled law, that Jats of Haryana, have custom under which a person above the age of 15 years, married and having children can also be adopted? 2. Whether the learned Courts below committed an R.S.A. No. 123 of 2008 (O&M) -4- error in non-suiting the plaintiff/appellant merely for want of pleading of custom, though the custom among the Jats stood established by way of law laid down by this Court?" In support of the substantial questions of law, the learned counsel for the appellant contends, that it was duly proved that the plaintiff/appellant was adopted, vide adoption deed dated 16.12.1982. The adoption deed was duly proved and exhibited. However, the learned lower appellate Court erred in holding that the adoption and custom were required to be pleaded and proved by leading evidence. The contention of the learned counsel for the appellant is that there is no necessity of pleading the custom, nor there was any necessity to lead evidence to prove the custom, in view of the law laid down by this Court in Amar Singh Vs. Tej Ram and another, AIR 1982 Punjab and Haryana 282, wherein this Court has been pleased to lay down as under: "12. The learned counsel for the plaintiff- respondent has sought to urge that in the absence of the pleading that a person who is above the age of 15 years and married could not be adopted, the evidence regarding the custom to the contrary could not be given. He has, however, argued that the general custom which has been recognised by the Courts becomes the law of the land and it is not necessary to prove it. According to him, in the Punjab, the general custom in the Jats is that a person who is above the age of 15 years and married can be adopted. 13. I find force in the contention of the learned counsel. It is well-settled that if the Courts have recognised the custom in a particular matter for a long R.S.A. No. 123 of 2008 (O&M) -5- time, that is considered to be the law and it is not necessary to prove it. The Courts can take judicial notice of such a custom. In the aforesaid view, I am fortified by the Supreme Court in Ujagar Singh V. Mst. Jeo, AIR 1959 SC 1041. The following observations may be read with advantage (at p. 1045): - "It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved. Under S. 57 of the Evidence Act, however, nothing need be proved of which courts can take judicial notice. Therefore it is said that if there is a custom of which the Courts can take judicial notice, it need not be proved. Now, the circumstances in which the courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Ram Rao v. Raja of Pittapur, 45 Ind App 148 at pp. 154, 155: (AIR 1918 PC 81 at p. 83), in the following words, "When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case". When a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary u/s 57 (1) of the Evidence Act. It appears to us that in the courts in Punjab the expression "general custom" has really been used in this sense, namely, that a custom has by repeated recognition by courts, become entitled to judicial notice as was said in Bawa Singh v. Mt. Taro AIR 1951 Punj 239, and Sukhwant Kaur v. Balwant Singh, AIR 1951 Punj 242." R.S.A. No. 123 of 2008 (O&M) -6- Admittedly, the parties are Jats. It is well- recognised that the Jats in the State of Haryana, which was earlier a part of the erstwhile State of Punjab, are governed by customary law. In para 36 of Rattigan's Digest of Customary Law in the Punjab, it is clearly stated that there are no restrictions as regards the age or the degree of relationship of the person to be adopted. It is also well-settled that a married man having children can be adopted under custom. Reference in this regard may be made to Ramkishore v. Jainarayan, (1992) ILR 49 Cal 120: (AIR 1922 PC 2), wherein it has been observed that under the Customary Law, a brother can be adopted, a daughter's son can be adopted; there is no limit as to the age of the person who may be adopted; a married man who has had children may be adopted; and a guardian may give a boy in adoption. No contrary view has been brought to my notice to the effect that amongst Jats such a person cannot be adopted. Therefore, I am of the opinion that the adoption of Harkesh respondent cannot be challenged on this ground." On the basis of law referred to above, the learned counsel for the appellant contends that the learned Courts below committed an error in non-suiting the appellant by holding, that in absence of pleading of custom, suit filed by him could not succeed. It is also the contention of the learned counsel for the appellant, that the finding recorded by the learned lower appellate Court cannot be sustained as it has ignored the established custom duly recognised by the Courts. The learned lower appellate Court non-suited the appellant by R.S.A. No. 123 of 2008 (O&M) -7- referring to the judgment of this Court in Hari Singh Vs. Bidhi Chand, 1997 MLJ 224 wherein this Court was pleased to hold, that Jats of Tehsil Naraingarh, District Ambala, have no customary right of adoption. In view of this, the learned lower appellate Court was pleased to hold that in absence of pleading and proof of custom, it was not possible to uphold the adoption deed to be valid, though contrary to the Hindu Adoption and Maintenance Act. The learned counsel appearing on behalf of the respondents on the other hand supports the judgment of the learned lower appellate Court by placing reliance on the judgment of the Hon'ble Supreme Court in Bhimashya and others Vs. Smt. Janabi @ Janawwa 2007(3) Civil Court Cases 558, wherein the Hon'ble Supreme Court has been pleased to hold as under : - "6. So far as the question of adoption is concerned, it was held that appellant No. 1 was married to the daughter of Fakirappa. The adoption was claimed to have been made on 28.03.1960 and the adoption deed was registered on 31.03.1960 which was at a time when The Hindu Adoption and Maintenance Act, 1956 (in short 'the Act') was in operation. The defendant No. 1 was more than 15 years of age and, therefore, could not have been adopted and, therefore, his adoption, if any, cannot be recognised in law. Relief was granted in respect of Item No. 3 property. 26. There was no specific plea relating to custom though some vague and indefinite statements have been made in the plaint and that too in a casual manner. No issue was framed and no evidence was R.S.A. No. 123 of 2008 (O&M) -8- laid to prove custom." The learned counsel for the respondents also placed reliance on the judgment of the Hon'ble Supreme Court in Salekh Chand (Dead) by LRs Vs. Satya Gupta and others, 2008(2) Civil Court Cases 604, wherein the Hon'ble Supreme Court was pleased to lay down, that the person who relied upon custom varying the general law, he must plead and prove it and the custom is further required to be established by clear and unambiguous evidence. Reliance was also placed on the Full Bench judgment of the Hon'ble Lahore High Court in Kishan Singh and others Vs. Mt. Shanti and others, AIR 1938 Lahore 299, wherein the Hon'ble Lahore High has been pleased to lay down as under: - "The law to be applied, in relation to the devolution of property, is normally the personal law of the parties; and if a party asserts that the personal law does not apply, the onus is on that party of showing that custom applied, and further he must plead the custom alleged in precise terms and must by evidence establish the custom as pleaded. In many cases the party alleging a custom may by the mere production of the riwaj-i-am be able to give prima facie evidence of the custom alleged and so cast the onus of proof on his opponent, but this circumstance does not obviously affect the universality of the proposition that he who alleges custom must plead and prove it." In view of the judgments relied upon by the learned counsel for the respondents, no fault can be found with the findings recorded by the learned lower appellate Court holding that in absence of pleading and proof of custom, no reliance could be placed on adoption deed, specially when the stand of the plaintiff/appellant himself in the suit was R.S.A. No. 123 of 2008 (O&M) -9- that he was governed by personal law, and the plea of custom was in the alternative. In view of the reasons recorded above, the substantial questions of law are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 11, 2009 R.S.