Case: Salig Ram Vs. Munshi Ram And Another

21, that where, as in the present case, the Riwaj-i-am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it."As females are not concerned in this case, the entries in the riwaj-i-am of Amritsar district in 1865, if they conflict with para. 48 of Rattigans Digest, should prevail. On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata. The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj-i-am of Amritsar district of 1865 as laying down the correct custom and therefore para. 48 of the Digest by Rattigan would still prevail. In this connection the High Court relied on Majja Singh v. Ram Singh, 43 Pun Re1879. That was however a case of jats and not of Brahmins and the person who was adopted in that case was an only son. That case would not therefore necessarily override the custom so far as it applies to Brahmins. In any case the position is made clear by the Manual of Customary Law prepared in 1911-12 by Mr. Craik. The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son. The High Court however, pointed out that the Brahmis and Khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again complied and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.5. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865. 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural fathers family as recorded in 1911-12.This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911-12that a son given away in adoption succeeded in the family of his natural father if he had no brother-though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12.The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.6. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the life time of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi Ram who would be representing his father. The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could not be held that there were two sons of Nanak Chand living at the time of his death, one of whom in the guise of Munshi Ram was adopted away. We cannot accept this argument: and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigans Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para, 48 can Munshi Ram succeed to the property of Nanak Chand.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is not dispute before us that para. 48 applies in the case of adoptionappears that in 1865 the riwaj-i-am of Amritsar district stated that "An adopted son will not be a co-sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural fathersHigh Court however, pointed out that the Brahmis and Khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again complied and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.5. The position as it emerges from a comparison of the entries in the riwaj-i-am of 1865. 1911-12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that a son given away in adoption was excluded altogether from succeeding in his natural fathers family as recorded in 1911-12.This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911-12that a son given away in adoption succeeded in the family of his natural father if he had no brother-though the High Court did not notice this part of the answer in the riwaj-i-am of 1911-12.The conclusion therefore at which we arrive is that amongst Brahmins and Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.6. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the life time of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi Ram who would be representing hiscannot accept this argument: and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigans Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para, 48 can Munshi Ram succeed to the property of Nanak Chand.