Punjab-Haryana High Court
Maya Ram vs Jai Narain on 26 August, 1988
Equivalent citations: AIR1989P&H202, AIR 1989 PUNJAB AND HARYANA 202, (1989) 1 CURLJ(CCR) 222, (1989) MARRILJ 147, (1989) 1 HINDULR 352, (1989) 95 PUN LR 225
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT V. Ramaswami, C.J.
1. The plaintiff is the appellant. He filed a suit for declaration that the registered adoption deed dt. June 16, 1970 executed by him adopting the defendant, respondent herein, is illegal and not binding on the plaintiff. Two of the main contentions raised by the plaintiff were (i) that the execution of the document was vitiated by fraud and misrepresentation and (ii) the defendant who was a married man with a three years old child at the time of adoption, could not have been adopted by the plaintiff.
2. The factum of adoption, is not in dispute. On the first question the concurrent finding of the Courts below is that there is no evidence of any misrepresentation or fraud and that the reigstered adoption deed is not vitiated by any fraud or misrepresentation. On the second question, the trial Court was of the view that though there is evidence of custom to show that there was no restriction of age for the person to be adopted and even after marriage a person can be adopted but the custom is that no person who has a son can be adopted. However, in appeal the learned Additional District Judge, Rohatak, held that the evidence of custom showed that the adoption of a married person with a child or children is permitted. He was further of the view that even if it is to be answered that the custom only permitted adoption of a married person but not adoption of a married person with a child or children, that portion of the custom which did not recognise adoption of a married person with a child is no longer in force in view of Sub-section (4) read with Section 10 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act'). In that view he allowed the appeal, set aside the judgment and decree of the trial Court and ultimately dismissed the suit of the plaintiff.
3. In this appeal, the only point for consideration is whether in the presence of the entries in the Rawaj-i-am which is marked as P2 in this case, that a person having a son cannot be adopted, the view of the lower appellate Court was justified in law. The parties are Himdu Jats and applicability of the Act 78/1956 to them is not in dispute. The adoption having taken place in the year 1970 after the Act came into force, the same will have to be in conformity with the provisions of the Act. Section 5 of the Act provides that no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in Chap. (II) of that enactment and that any adoption made in contravention of the said provisions shall be void. Section 4 provides for the overriding effect of the Act and states that in respect of any matter dealt to in the Act, any custom or usage which have the force of law immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act save as otherwise expressly provided in the Act itself. Section 10 specifically deals with the qualifications of the person who may be adopted. Therefore, any custom or usage which was in force could not be invoked as against the provisions of Section 10. However, we find in Clauses (iii) and (iv) of Section 10, the custom or usage applicable to the parties is prescribed to the extent mentioned therein and those clauses read as follows : --
"10. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely : --
(i) to (ii) xx xx xx
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption".
Section 3, Clause (a) of the Act defines 'custom' and 'usage' as signifying any rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area, tribe, community, group or family. Exhibit P2 which is a copy of the Rewaj-iam of Tehsil Rohtak for the year 1909-10 refers to certain customs amongst Jats and states that there is no restriction of age for the person to be adopted and even after the marriage a person can be adopted but no person who has a son can be adopted. The later portion of the answer given in this case that no person who has a son can be adopted, was considered as not binding and only indicatory and not mandatory, on the ground that that was not in answer to a direct question by the Settlement Officer and it was not safe to rely upon the same to hold the invalidity of the adoption. Certain other direct authorities were also relied upon in support of the contention that adoption of a married person with children is also valid.
4. It is a well settled proposition in this part of the country that if the revenue authorities have not put a direct question on the point from the person from whom custom was ascertained it is not safe to make any presumption in favour of the custom to which the entry relates. Vide Chuhar Singh v. Ram Chand, (1957) 59 Pun LR 263. A similar view was also expressed by Justice Tek Chand in Jowala v. Dewan Singh, AIR 1936 Lah 237, wherein with reference to the entries in Riwaj-i-am, the learned Judge observed after referring to certain earlier judgments that the entry is only indicatory and not mandatory. The Supreme Court in Hem Singh v. Harnam Singh, AIR 1954 SC 581, with regard to entries in the Riwaj-i-am had made the following observations: --
"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 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 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 to be held to be directory and adoptions made in disregard of them are not invalid".
This Court in Data Ram v. Teja Singh, (1959) 61 Pun LR 857 : (AIR 1959 Punj 428), observed that in the matter of choice, the regulation or custom should not generally speaking be "considered mandatory.
5. There are certain decisions also which have directly held that a married man with children may be adopted. Reference may be made to Chandra v. Akbar, No. 49, 1909 Punjab Record 162, wherein it was held that among Lohars of Tehsil Amritsar the adoption at the age of 26 of a married man, with children was held not invalid by custom. Again in the same volume No. 95, 1909 Punjab Record 472 in another case relating to Jains of Delhi, it was held that a married man with children may be adopted.
6. In the Digest of Customary Law for the Punjab by Sir W. H. Rattingan at page 228, para 36 in relation to adoption it is stated that there are no restrictions as regards the age or the degree of relationship of the person to be appointed (adopted) and some of the authorities cited there have held adoption of married men with children as valid custom.
7. Since these decisions do not relate to Hindu Jats, it is not safe to rely on them to prove custom among them. But the above discussion clearly shows that there was a definite custom among the Hindu Jats of adopting married men irrespective of their age. The evidence or the reports do not, however, conclusively establish that there was or was not a custom among Hindu Jats of adopting married man with child or children. In the light of this position on custom let us examine the provisions of the Hindu Adoptions and Maintenance Act, 1956.
8. As already noticed, no adoption shall be made after the commencement of the Act By a Hindu except in accordance with the provisions contained in Chapter II. Section 6 provides that no adoption shall be valid unless amongst the other requisites mentioned the person adopted is capable of being taken in adoption. Section 10 states that no person shall be capable of being taken in adoption unless the conditions mentioned therein are fulfilled. If the conditions are fulfilled, there is no other disqualification for a person being taken in adoption. In other words, the conditions referred to in that section are exhaustive and we cannot import any other or further condition for the validity of adoption. Section 4 gives the provisions of the Act an overriding effect by stating that save as otherwise expressly provided in the Act, any custom or usage as part of Hindu Law in force immediately before the commencement of the Act shall cease to have effect with respect of to any matter for which provision is made in the Act. Provision having been made in the Act prescribing conditions to be fulfilled by a person to be capable of being taken in adoption, the custom relating to the same shall cease to have any effect. Conditions Nos. 3 and 4 in Section 10, however, provide that those conditions shall apply 'unless there is a custom or usage applicable to the parties which permits person who is married' and 'persons who have completed the age of 15 years' being taken in adoption. Thus, though generally under Section 4, custom shall cease to have any effect but by virtue of specific provision in conditions Nos. 3 and 4 of Section 10, if there is a custom permitting a person above the age of 15 years and a person who has been married being taken in adoption that shall continue to be in force.
9. Whatever doubt there may be regarding the custom permitting adoption of married man with children, as already stated, there is no doubt and it is well settled law in this part of the country that there was a definite and recognised custom among Hindu Jats of adopting married men irrespective of their age. This will, therefore, squarely come within the excepted custom provided in conditions Nos. 3 and 4 of Section 10 and, therefore, adoption in this case was quite legal and valid.
10. In the result second appeal fails and it is hereby dismissed. There will, however, be no order as to costs.