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Adoption of daughter's son under Hindu law as modified by custom in the Punjab.

The doctrine of the strict Hindu Law prohibiting the adoption of a daughter's or sister's son, based on the theory that no one can be adopted whose mother the adopter could not have legally married, has been considerably weakened in the Punjab by custom which generally favours such adoptions. In Roshan Lal v. Samar Nath (3) it was held that among high caste non-agricultural Hindu residents in towns in the punjab, such as Khatris of Amritsar, the strict rule of the Hindu Law of Mitakshara that a daughter's son cannot be adopted has been varied and a daughter's son can be validly adopted.. Such an adoption has the full effect of a formal adoption under Hindu Law and the adopted son severs his connection with his natural family and becomes the male lineal descendant. of the adoptive father.

See notes under para. infra.

(14)      Adoption of a sister's son.

The first reported decision of the Chief Court is probably 31 P. R; . 1873, a case relating to the Jats of Jullundur District, in which it was held that the adoption of a sister's son was invalid according to the custom prevailing among them. The correctness of this finding was however doubted in 50 P. R. 1874 (bottom of p. 185). The adoption of a sister's son was upheld in P. R. 1867 and 50 P. R. 1875. In 172 P. R. 1883 it was laid down that according to the general custom of the Punjab adoption a sister's son was not invalid among Hindu Jats of Ambala District, and onus was placed on the objectors to prove that such adoptions were invalid. In 62 P. R. 1888 Rattigan, J. observed-"We think it must be taken that the decisions of this Court have laid down the principle, based upon what judicial experience had found to be the general custom of the agriculturists in the Punjab, that appointments of the kind (sister's son) now disputed are to be presumed valid, and that the onus lies on those who assert the contrary to prove their allegation. We have no hesitation ourselves in subscribing to this general doctrine which we think is in entire accord with the prevailing custom of the agricultural tribes in this province."

According to the Full Bench decision in Raila v. Budha (50 P. R. 1893), the initial presumption, however, is against the validity of the appointment of a daughter's or sister's son, and the burden of proof at the outset rests on the persons asserting its validity." This view was endorsed by Roe, C. J. in Khaira v. Pir Baksh (1) wherein he observed:-"There is certainly a strong initial presumption against the validity of the adoption of a sister's son."

In 1924, 6 Lah. 52, the learned judges, in upholding the validity of the adoption of a sister's son amongst the Hindu Jats of the Rohtak District, in the absence of near agnates, observed as follows on para. 37 of Rattigan's Digest of Customary Law-" The latter portion of this propositions based upon two rulings, 50 P. R. 1893 [F. B.] and 39 P. R. 1897; but these decisions lay down that when a sonless agriculturist asserts that he is competent to adopt a daughter's son or other non-agnate in the presence of near agnates irrespective of their assent the presumption at the outset is against the power. In the present instance we are not concerned with near agnates but with distant agnates of the ninth degree.

(15)      Adoption of an only son or an eldest son.

Ordinarily it is no valid objection to an appointed heir that he is the eldest or only son of his natural father (2).

The burden of proving that an only son cannot be adopted under the Punjab Custom lies on him who asserts it (3).

The case of Gil Jats of Ferozepur District is an exception to the rule and amongst them such an adoption is not permissible (4).

See the authorities quoted under each district in the following pages.

AMBALA DISTRICT

*Answer to Question No. 59-

"1887- The general sense of the replies is that an adoption must, if possible, be from the near collaterals. Failing them, a daughter's son or sister's son may be chosen, but with these exceptions Hindu tribes rarely adopt except from their own got, and no tribes recognize adoption from an outside tribe. Mohammedans in general pay less attention to got than Hindus. Numerous cases are, however, quoted by Jats of Rupar where the adopted son belonged to a different family or got, and in Naraingarh an instance is given of the adoption of an outsider in preference to a collateral being upheld by legal decision. This is a good instance of the difficulties surrounding the whole question of adoption. The general feeling of the country is clear enough, but the customs are not sharply defined, and the intricacies of the law open out a wide field for useless litigation.

1918-In practice the order of succession is followed and only near collaterals are adopted  failing  them a daughter's or sister's son may be chosen. Breaches of this rule are very rare and must be treated as exceptions to custom.

Collaterals.

A. I. R. 1935 Lah. 939-           Jats of the Ambala District. Adoption must, if possible, be from the near collaterals Nephew.

95 P. R. 1889-                         Sainis of Rupar Tahsil. The adoption by a childless proprietor of his nephew is valid. Wife's relatives. .

120 P. R. 1884-                       Multan Bhatti Muhammadan Rajputs. By custom a proprietor cannot adopt his wife's kinsman to the exclusion of his grand-nephews.

156 P. R. 1890-                       Raibala Jats of Rupar Tahsil. The onus lay on the defendants to establish the validity of a brother-in-law's son's adoption and that they had failed to discharge it.  Daughter's son-adoption valid..

26 P. R. I 872-             Hindu Jats of Ambala District.

129 P. R. 1882-                       Sikh Jats of Kharar Tahsil.

51 P. R. 1903-                         Hindu Zargars of Ambala City. Hindu Law applied.

93 P. R. 1909 (P. C.)-             Hindu Jats of Ambala District.

A. I. R. 1922 Lah. 234 -          Dhanoi Jats distinguished in 1924, 5 Lah.

= 2 Lah. 346 519.     

Daughter's son-adoption invalid.

40 P. R. 1891-                         Muhammadan Chauhan Rajputs of Mauza Golra.

18 P. R. 1899-                         Jats of Mauza Thaona, Tahsil Rupar. Relied on in 1924, 5 Lah.519.

1924, 5 Lah. 5l9-                     Hindu Jats, Ambala District. Adoption of a 1925 Lah. 243 daughter's son is not valid in the presence or collaterals (5th degree). 1921, 2 Lah. 346 distinguished.

 

Sister's son-adoption valid.

35 P. R. 1874-             Hindu Rajputs of Ambala Diatrict.

172 P. R. 1883-           Hindu Jats, in presence of 2nd cousin.

62 P. R. 1888-             Dhariwal Jats, Tahsil Rupar.

24 P. R. 1900-             Khatris of Mauz1 Kawari, Tahsil Pipli.

AMRITSAR DISTRICT

*Answers to Questions Nos. 83 to 86.

"All tribes- -

All the three persons [(i) only son, (ii) eldest son, (iii) brother] are eligible for adoption and there is no restriction.

In the 1865 Riwaj-i-am all the tribes now consulted stated that the person adopted must not be more than 15 years of age. Following that answer the majority of the persons now questioned say that the age of the adopted son must not exceed 12 years. But in rea1ity there is no limit as. to age, and a man of 35 years was adopted by one Gunda Singh, Man, of Amritsar Tahsil.

The tonsure, investiture with the sacred thread, or pahol of the son makes no difference.

The person adopted must be selected from collaterals, the nearer collaterals being given a preference to the remoter. If there are no collaterals, the selection may be made of a person of the same got and tribe as the adopter himself, except as in answer 85.

A daughter's or sister's son is not eligible for adoption except amongst Dhillon Jats of Tarn Taran and Mughals of all the three Tahsils. Otherwise there is no restriction amongst any of the tribes.

Adoption of only son.

19 P. R. I 872-             Adoption by maternal grand-father in the time of the Sikh rule held valid.

43 P. R. 1879-             Jats of Mauza Tira Ka1an Ajnala Tahsil. An on1y son was adopted by his uncle.

Adoption of collaterals.

101 P. W. R, 1906-     Hindu Jats of Gulwali. By custom no restriction as regards the degree of relationship of the adopted person is shown.

10 P. R. 1908-             Khalsa Jats, By custom a sonless proprietor is competent to adopt a more distant collateral to the exclusion of nearer ones.

22 P. R. 1913-             Randhawa Jats, Amritsar Tahsil. The adoption by a registered deed of a collateral (9th degree) who was of 16 years of age is valid in the presence of nearer collaterals,

Distant married collaterals.

49 P. R. 1909-             Lohars of Tahsil. By custom the adoption of a married man of the age of 26 years and who has children is not valid Step-son.

122 P. R. 1894-           Aulakh Jats, Ajnala Tahsil. .A childless proprietor made a gift in favour of his step-son. The collaterals (7th degree) contested it. It was alleged that the step-son was adopted by a deed. The adoption was not publicly made. Adoption was no held proved.

 

Daughter's son-adoption valid.

50 P. R. 1879-             Kalals of Jandiala, Amritsar District.

64 P. R. l883-              Kapur Khatris of Amritsar.

5 P. R. 1885-               Gil Jats, Amritsar District; but see 33 P. R.

2 P. W. R. 1907

85 P. R. 1907              Dhillon Jats, Amritsar District.

.86 P. R. 1907

1920, 2 Lah. 69 -         Khatris of Amritsar Town.

A. I. R. 1921 Lah. 147-Brahmins of Amritsar District.

=2 Lah. 167

1935,16 Lah. 1007-                 Dhillon Jats, Tarn Taran Tahsil Amritsar

=A. I. R. 1936 Lah. 261           District.

A. I. R. 1937 Lah. 626-           Khattris of Amritsar daughter's Son can be validly adopted. Such an adoption has the full effect of a formal adoption under Hindu Law and the adopted son severs his Connection with his natural family and becomes the male lineal descendant of the adoptive father.

 

Daughter's son-adoption invalid.

38 P. R. 1896-                         Randhawa Jats, Amritsar District.

33 P. R. .I 900-                        Gil Jats of Amritsar District. -

A. I. R. 1931 Lah. 216-           Dhillon Jats of Amritsar Tahsil. Distinguished in 1935,

= 128 I. C. 310                        16 Lab. 1007, a case relating to Dhillon Jots in Tarn Taran Tahsil, in which adoption of daughter’s son was held valid.

Sister's. son adoption valid.

83 P. R. 1867-                         Hindu Jats of Amritsar District.

1 P. R. 1875 (F. B.)-                Sindhu Jats of Amritsar District.

51 P. R. 1881-                         Sikh Jats of Amritsar District.

57 P. R. 1881-                         Jats of Sohe1 got; sister's grandson.

149 P. R. 1883-                       Panzati Brahmins of Amritsar. City; relied on in

1921 ,2 lah ,67.

14 P. R. 1884-                         Gil Jats of Tahsil Ajna1a.

120 P. R. 1885-                       Parwa1 Jats; sister's grandson. See also 1923, 76

I.C 256 for criticism on this case

61 P. R.1894-                          Sohel Jats of Tahsil Ajnala.

Sister's son-adoption invalid.

98 P. R. 1895-            Muhammadan Ghumman Jats, Tarn Taran Tahsil,

A. I. R. 1935 Lah. 875-           Chinna Jats, :Tarn Taran Tahsil. Brother's daughter’s son.

43 P. R. 1886-                         Tung Jats of Amritsar District. The- onus -lay on the plaintiff-who had failed to establish that by custom the adoption of a brother's daughter's only son is invalid.

DERA GHAZI KHAN DISTRICT

*Answers to Questions Nos. 57 to 59

"The Hindus of Rajanpur Tahsil say that neither of the three may  be given. Those of the Dera Tahsil, who are the only other people in the district who admit custom, make an exception in favour of the eldest son.

The Hindus of Dera and Rajanpur, who alone admit the custom, say that there is no limit in respect of the age of the adopted son, but he is usually a minor.

Among Hindus relatives have the preference in the order of their relationship to the adoptive father, but there is difference between the Hindus of Dera and those of Rajanpur (the only Hindus who admit the custom) that the former adopt only in  their got, while the latter have no such limitation."

As before, with the exception that the Dera Hindus do not necessarily adopt within their got, but may adopt within the tribe, i.e., Dakhna, Utradhi, etc. The Muhammadan tribes do not now admit the custom.

DELHI DISTRICT

Answers to Questions Nos. 83 to 86- .

"All tribes-

"No man can give his only son in adoption. If there be more sons than one, anyone of them can be given. There is no rules to whether the elder or younger son should be given in adoption. A brother can be given in adoption by his own brother, but cannot be adopted by his own brother.

There is no age limit for the adoption of a son, but the age of the adopted son should be less than that of the adoptive father. A boy can be adopted even after tonsure or investiture with the sacred cord or among Mohammedans, after circumcision.

The person adopted should be of the same family with the adopter or with the adopting widow's husband.. Failing that, a person first from the same got and then from the same tribe with the adopter should be selected for adoption. A person of different tribe cannot be taken in adoption.

There is no rule prohibiting the adoption of a son of a woman whom the adopter could not have married, such as his sister's son or his daughter son, but a preference is shown to make collaterals related through males.

Adoption of only son.

18 P. R. l870-              Hindus. By custom tile adoption of an only son is valid.

Adoption of collaterals.

39 P. R. 1890-             Dogra Jats, Delhi Tahsil. The adoption of a remote collateral in the presence of a more nearly related one than the defendant was not opposed to custom.

4 P. R. 1892-               Hindu Tank Jats, Sonepat Tahsil. By custom a  sonless proprietor was competent to appoint one of  his collaterals as an heir to the exclusion of other col1aterals.

Daughter's son-adoption valid.

13 P. R. 1878-             Brahmins of Delhi District.

86 P. R. 1890-             Brahmins of Delhi District. Brother's daughter's son.

Sister's son-adoption valid.

88 P. R. 1912-             Banias of Delhi District. Adoption of a sister'  son is valid.

Sister's son-adoption not valid.

39 P. R. 1897-             Authal Jats of Delhi District, in the presence of collaterals related to the adopter in the third degree.

Brother's daughter's son.

86 P, R, 1904 -            Brahmins of Mluza Chiragh. Adoption of a brother't daughter's son not invalid.

FEROZEPUR DISTRICT

Answer to Question Nos. 71 to 74.-

"The Jats state that there is no objection to the adoption of an only or eldest son, but that a brother cannot be given in adoption. The Gils of Ferozepur, Moga Fazilka and Muktsar state that an only son cannot be given in adoption, but there are instances to the contrary. The Mahtams, Kumhars and Suthars agree with tile majority of the Jats. The Sodhis say an only son cannot be given in adoption, but a brother can be given.

Among the Muhammadan tribes admitting adoption the Sayyads, Rajputs, Gujars, Jats and Arains agree with the answer of the majority of the Sikh Jats, the Nipals however say that there is no restriction on giving a brother in adoption.

Most tribes state that there is no age limit and that they do not follow the custom of investiture with the sacred thread (Janeo).

The Muktsar Arains say he should be under three years of age. Generally the adopted son is minor.

The Jats, Bagri Kumhars and Suthars, Sodhis and Mahtams say that the person adopt  should    selected from among the collateral of the adoptive father and should be of the same tribe and got. Nephews and their sons should be given the preference. There are, however, instance of the adoption of sister's sons who are not of the same got the adoptive father: these are quoted under the next answer.

Most of the Muhammadan tribes. make the game answer: but Muhammadan Jats say adoption from another got is permissible.

The Jats, Bagri Kumhars and Suthars, Sodhis and Mahtams state that a man cannot adopt the son of a man of another tribe whom he could not' have married, neither can be adopt his sister’son his daughter'son. I, however quote a number of instances to the contrary. Sentiment is undoubtedly opposed to such adoptions in the presence of near collaterals,

The only tildes that admit that the daughter's or sister's son can be adopted are Muhammadan .Jats, Nipal and Arains, while Moga Gujars admit the adoption of the daughter's sons but not of  sister's sons.

The Rajputs state that adoption cannot & made from another tribe, apparently implying that if the daughter's son belonged, to the, same tribe as his maternal grandfather , the latter would be at liberty to adopt him.

Adoption of an only son.

33 P. R. l812-              Gill Jats of Moga Tahsil. An only son cannot be adopted.

Adoption of nephew.

115 P. R. 19l9-            Mohal Rajputs, Fazilka Tahsil. Custom of adoption - exists. Nephew adopted.

Adoption of wife’s relatives.

169 P.L.R. 191 I-        Muhammadan Khokar Rajputs.

= 10 1. C. 338             The adoption of a wife's relations or of a stranger is invalid. The power to adopt is confined to Jaddis or to a Nawasa.

3 P. R. 1901-               Dhawan Khatris of Ferozepur City. The adoption of a wife's sister's son was not opposed to custom or Hindu Law.

Adoption of son of a step-son.

38P. R. 1890-              Dhariwal Jats. Adoption of son. Of step-son held valid.

Sistor's son-adoption valid.

50 P. R. 1875 -            Bular Jats of Ferozepur District.

102 P. R. 1884-           Sayyads of Ferozepur District.

Sister's son-adoption not valid.

I P. R. .1898-               Muhammadan Jats. Brother's daughter's son.

27 P. R. 1884-             Gill Jats of Moga Tahsil. Adoption of a brother's daughter's son held valid.

86 P. R. l888-              Sidhu Barar Jats of Muktsar Tahsil. Adoption of a brother's daughter's son held valid.

GUJRANW ALA       DISTRICT

*Answers to Questions Nos. 68 to 71.-

"All tribes admitting adoption-

An only son is rarely given in adoption. An eldest son and brother may be so given. Among Tahsil Wazirabad tribes and Arains (Tahsil Sharakpur) a brother cannot be so given.

A boy under five years only can be taken into the lap.

The adoptive father and the adopted son must belong to the same tribe or got. The person adopted must be a near collateral, a brother and his son having preferential clair us to others. Among Tahsil Wazirabad tribes and Arains (Tahsil Sharakpur) a daughter's son can be adopted, and he need not be of the tribe and got of his adoptive father.

In the absence of near collaterals a daughter's son can be adopted, but a sister's son or the relatives of the wife can in no case be adopted However, among Arains {Tahsil Sharakpur) in their absence sister's son can be adopted. Among Tahsil Wazirabad tribes in the absence of near collaterals and daughter's son, his sister's son can be adopted. Among Tahsil Gujranwala Wiraks, Waraichs, Gurayas and Sekhu Jats, Labanas and Rajputs even daughter's Son cannot be adopted.

Custom of adoption does not exist.

A. I. R. 1936 Lah. 67-             There is no custom of adoption among the Awans of Garhi Awanan, Gujranwala District.

Adoption of collaterals.

28 P. R. 1887-                         Bhindar Jats, Gujranwala Tahsil. A childless proprietor who was a very old man executed and registered a few days before his death a deed of adoption in favour of the defendant, a distant relative. Adoption not held valid.

44 P. R. 1913-                         Goraya Jats. A sonless proprietor can adopt a distant collateral, in the presence of nearer collaterals.

Daughter's son-adoption valid.

A. I. R. [934 Lah. 849-            Joia Jats, Hafizabad Tahsil. Adoption of a

=150 I. C. 663                         daughter's son, who is also a collateral, is valid.

Daughter's son-adoption not valid.

A. I. R. 1927 Lab. 593-           Sansi Jats of the Gujranwala Tahsil. There

9 Lah. 1 = 103 I. C. 280          is no special custom by which a daughter's son can be adopted unless he is a collateral or is of the same got as the adopter.

Sister's son-adoption valid.

34 P. R. 1883-                         Arains of Gujranwala District.

16 P. L. R. 1911-                     Non-agriculturists Khatris of Gujranwala, not following strict Hindu Law.

GUJRAT DISTRICT

Answers to Questions Nos. 97 to 100-

"Every man can do so (may give in adoption his only son, his eldest son; or his brother) if his tribe permits adoption.

(a) No limit of age is specified but generally a person is adopted in his boyhood.

(b) The tonsure or investiture with the sacred thread make a no difference.

It is necessary that the person adopted must be related to the person adopting. The nearest relatives or collaterals are given a preference to the more remote. If there are no collaterals the selection may be made of a person of the same got and tribe as the adopter himself. But a daughter'. or sister's son may also be adopted. .

There is no restriction, but a daughter's or sister's son is given preference over remote relatives

Adoption of wife's relatives.

165 P. R. 1884-                       Awans. By custom adoption of a wife's brother's son is now allowed.

104 P. R. 1891-                       Bhatti jats, Kharian Tahsil. Adoption of wife's sister's son held valid.

81 P. R. 1892-                         Kalwal Jats, Kharian Tahsil. Adoption of wife's brother's son is not valid.

Nephew.

2 P. R. 1891-                           Khathana Gujjars, Kharian Tahsil. A sonless . proprietor cannot make a valid gift of his ancestral estate to his nephew whose alleged adoption was not established in the presence of his own brother and other nephew.

Adoption of daughter.

8 P. R. 1888-                           Gujjars. No custom was established by which an adoption or appointment as heir of a daughter was valid.

Daughter's son-adoption valid.

165 P.R. 1884 –                      Awans of Gujrat District.

 Daughter's son-adoption not valid.

15 P:R. l880-                           Varaich Jats, Gujrat District.

67 P. R. 1901-                         Kathana , Gujars of Gujrat District. Without the constent of. collaterals the adoption of, a daughter's son is invalid.

Sister's son- adoption not valid.

84 P. R. 1886 -                        Agriculturist Sayyads of Gujrat District, in presence of nephews.

Sister's 'son adoption not valid.

128 P. R. 1890-                       Lalla Jats of Gujrat District.

92 P. R. 1891-                         Banth jats, the-presence of nephews.

102 P. R. 1893-                       PaswalGujjars

140 P. R.. .l893-                      Sindhu Jats, Tahsil Kharian, in presence of first Cousins.

35 P. R.1896-                          Khokhars, in presence of first cousin, being also cousin’s son

Hon'ble Revenue Minister

Hon'ble Minister-In-Charge
Shri. Gurpreet Singh Kangar

 


 

Special Chief Secretary, Department of Revenue, Rehabilitation and Disaster Mangement
Shri. Karan Bir Singh Sidhu, IAS

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