Case: Hem Singh And Another Vs. Harnam Singh And Another

2. The two appellants are admittedly the first cousins of the respondents Harnam Singh and belong to village Gillanwali, Tahsil Batala, District Gurdaspur. Gurmej Singh respondent 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 Garmej Singh was invalid and could not affect the reversionary rights of the appellants after the death of Harnam Singh .The appellants case was that under the Customary Law of Gurdaspur District applicable to the Gill Jats of village Gillanwali, Harnam Singh could only adopt acollateral" 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 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 conclusion on a decision of Tek Chand J. in - Jowala v. Dewan Singh, AIR 1936 Lah 237 (A) and the Privy Council decision in Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132   (B).

Court's reasoning:
3. The first question regarding the factum of adoption need not detain us long. The deed of adoption exhibit (D1) recites that Harnam Singh had no male issue who could perform his kirya 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 enjoying all rights of a son. He had executed a formal document in his favour in order to put an end to any disputes 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 ofexpression near collaterals is not defined by the custom. The relevant answer which we have underlined. (here into ) 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 much 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 mandatory. 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 mayappears 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.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 premptory 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 ones kinsmen should not be lost sight of.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 adoptor 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 Customary Law in the Punjab, adoption is secular in character, the object being to appoint as 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.