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An agnate generally preferred though not the nearest agnate.

Ludhiana District.

*** Answer to Question No. 58.-

"Rajputs, both Hindus and Muhammadans. and Labanas of Ludhiana Tahsil say that they have no custom of adoption. All other tribes are agreed’ that if there is a male lineal descendant there can be no adoption but the presence of a daughter's son is never a bar to adoption.

In the following cases custom or adoption was found to exist.

43 P. R. 1830- Muhamdnadan Manj Rajputs of Tahsil Jagraon,

79 P. R. 1 882- Jats of Tahsil Samrala,

15 P. R. 1883- Gllariwal Jats of Mauza Alalughir, Ludhiana District.

9 P. R. 1893- Hindu Gharewal Jats of Ludhiana District.

94 P. R. 1893- Dhaliwal Jats of Ludhiana District.

56 P. R. 1908- Jats of Mauza Lehal, Ludhiana District.

In the following cases custom of adoption was not found to exist :-

124 P. R. 1886- Muhammadan Ghorewaha Rajputs.

34 P. R. 1894- Mohammedan Manj Rajputs of Tehsil Ludhiana

C. A. 697 of 1879- Rajputs of Ludhiana District; but see 110 P. R. 1919 in which it was held that among Ghorewaha Rajputs of the Garshankar Tehsil, District Hoshiarpur, the adoption of a dauther’s son by a deceased sonless proprietor was valid by custom, inspite of the last Riwaj-i-am entry to the contrary.

Mianwala District

*Answer to Question No. 1, Section VI.-

“All Musalmans except Chief of Kalabagh.

The custom of adopting a son does not exist.

Chief of Kalabagh.

The Malik of Kalabagh maintains that the Chief can adopt a son if he has no son of his own body.

Note:- Adoptions have taken place among the Musalmans, but the right of an adopted son to succeed has so far been successfully contested by the collaterals.

Montgomery District (Pakpattan and Dipalpur Tahsils).

**Answer to Question No. 84.-

"(1) Rajput Wattus, Sayyads, Pathans, Rajput Jot's of Tahsil Pakpattan, Arains, Jat Musalmans, Rajput Musalmons, Rajput Wattu", Kambojs and Jat Sikhs of Tahsil Dipalpur.- There is no custom of adoption.

Exception :-Kaml:ojs of Tahsil Dipalrur. There was ugly one man Chamba Ram by name in the village Mancharian who adopted Mahl Ram and the latter received all property.

Among Jat Sikhs of Tahsil Dipalpur only one man Mangal Singh, son of Ram Singh of Chak No.3, adopted pala Singh.

(2) Sayyads of Tahsil Dipalpur.- The Sayyads of Hujra and Tahsil Dipalpur state that their adoption should be by registered deed and should be witnessed in writing by the selected men of the brotherhood. Oral adoption is not recognised. Other Sayyads state that It can be oral. There is no difference between adoption and appointment of an heir.

(3) Mahtams, Khatris, Aroras of Tahsil Dipalpur, Khatris, Aroras, Jat Sikhs, Kamboj, Mahtam.s, Chishtis, Arains .and hans of Pakpattan.-Adoption is recogmsed and shoul dbe in writing and if it is in writing it does not differ from an appointment of an heir.

Multan District.

*Answer to Question No. 84.-

"All Muhammadans admit that they have no custom of adoption or appointment of an heir. Among Hindus adoption is recognised. It may be either verbal or written. If verbal, It should take place ill the presence of the panchayat."

* Answer to question No. 85.-

"All Hindus say that subject to answer to Question 86 there can be no adoption in the presence of the male lineal descendant but that the. presence of a daughter's son is no bar to adoption."

Muzafargarh District.

** Answer to Question No. 83.-

All Muhammadans state that they have no qust9m of adoption or appointment of ao heir. Among the Hindu of Alipur adoption is recognised. It should be written and registered. The person adopted has the same rights as if he were the son of the adopter. Among the Hindus of Leiah and Kot Adu adoption is recognised, though it is not a general custom. There have been some-instances of it. It may be either verbal or written. The adopted person has no claim to his real father’s property but perform) the duties of a son to his adopter. The heir is one who may succeed to the property of the adopter in addition to that of his father, and is recognized as the person who performs for the adopter the rights which a Son bound to perform; an adopted person is bound to perform all the duties of a son for the adopter. The Hindus of Muzaffargarh assert that the custom of adoption is not recogaised among them. There has been only one instance in the last Settlement wherein one Diwan Naubat Ram of Rangpur adopted Tota Ram, Khatri, age 32 years, who was his wife's brother. There had been no other instance after that.

Peshawar District.

"A man may not adopt unless he is without son, son's son and son's son's son. The existence of a daughter's son is not a bar to adoption, but in that case it may be exercised only in favour of the nearest heir. If a man's male issue are irreligious, made paralyzed or leprous he may adopt in their place. A man who has adopted one son may not adopt another unless the first fails of the purpose for which he was adopted' if the failure is due to the fault of the first adopted son he retains rights in respect of his adoptive father's property and cease to be regarded as adopted, but otherwise he retains his position, and has a claim to maintenance, but not to a share in the inheritance. Bachelors, widows and blind, important and am man may adopt. Ascetics may adopt, but only from among their disciples. No special custom is known to exist in regard to adoption by women. A man may not give in adoption his only son, his eldest son or his brother. A boy can only be adopted before his beard has appeared, but he may be adopted after ... or investiture with the sacred cord in his own family. A man must ad pt the nearest of his relatives suitable for the purpose if the relative is willing. If all the spindles fail he may adopt other persons, e.g., a sister's son.. He cannot adopt a person of another caste or religion, but is not bound to make the selection from his own kaum or zat. The order of reference for adoption is brothers, brother's male discordant, uncles, their male descendants, and so on throughout the whole range of collaterals, but the adopted must be younger in age than the adopter. There is nothing to prevent the adoption of a boy whose mother the adopter might not have married provided the adoption is otherwise permissible. The essential part of the ceremony of adoption is the observance of the same formalities as are performed on the birth of a natural son. Usually a Brahman is sent for who recites the appropriate formulae in the presence of the parties, and the relatives of the person adopted. The adopted is seated in the lap of his adoptive father, and is dressed in new cloths. A present is given to the Brahman who officiates Adoption is not constituted merely by. the elder of two man arranging the marriage of the younger. There is no distinction in consequences, or in the nature of the relationship created, between the dataka and kritrimir forms of adoption. The latter term is understood to signify an adoption in which only the principals themselves, are consenting parties, e. g., in case of the parents of the adopted being did. In all circumstances an adopted person forfeits the right to inherit from his natural father. N;) instance is known of the birth of a natural legitimate son to a man who had already made an adoption. In such a cast occurred it would be decided according to the Shastras. The Sllastric rule in this matter is disputed, but it is certain that the adopted son would receive some share of his adoptive father's inheritance, and would not be restricted to bare maintenance. The permanent residence of a son-in-law with his father-in-law does not in any way alter his position as regards the estate either of his own father or of his father –in- law (1).

RawaIpindi District.

*Answer Question. 30.- .

"The Hindus answer that only men can adopt, an1 that it is necessary to adoption for the adoptive father to accept the boy in presence of his relatives, and to bring him up in his own house in every respect as his own legitimate son. The rights of the boy will be the same as if he were the natural legitimste son of bis adoptive father.

The answers of Muhammldan tribes in the different tahsils are contradictory. Gakhars in all tahsils reply that a man. may adopt but a woman may not. No ceremonies are absolutely necessary, but it is usual to assemble the brotherhood, and a deed of adoption is sometimes drawa up. Ferozal Gakhars in Tahsil Gujar Khan, however, deny the existence of any custom of adoption. In reply to Question Gakhars of all kinds and all tahsils denied the existence of any custom of adoption whatever.

Sayyads make the same reply as Gakhars. but in Abdulla Shah versus Kaim ,s'hah (No. 86, Punjab Record, 1894), the Chief Court held that by custom among Sayyads of Rawalpindi Tahsil the adoption of a daughter's son who was also a grand-nephew of the adopter, was invalid, and the case for adoption is certainly weaker in the other tahsils than in Rawalpindi.

In Kahuta Tahsil Janjuas and all other Muhammadan tribe., except Gakhars, reply that they have not custom of adoption.

In Murree, Sattis, Dhanials and Khetwals state that the custom of adoption is unknown, but Dhanials in Rawalpindi Tahsil admit the custom.

Dhunds admit the custom, but also say that the two instances quoted are the only cases which have occurred and refer only to Dhund Malals. There can be little doubt that in the hills at least adoption in not a general custom which would be acquiesced in by the disappointed collaterals or supported by tribal feeling. The conspicuous example of Raja Mansabdar's son has no doubt influenced the replies.

In Tahsils Rawalpindi and Gujar Khan, Awans reply that a man, but not a woman, can adopt; that adoption is performed before the brotherhood usually at a marriage, and that no religious ceremonies are necessary. But the people who gave these replies were able to cite only one instance of adoption. Gujars made the samt' replies as Awans, but cited no instances. The examples given below are the result of enquiries from revenueoflicials and revenue papers.

All other Muhammadan tribes deny the custom of adoption.

Hindus reply as at last Settlement. The brotherhood is entertained and the like placed on the boy's forehead.

The replies of the various Mohammedan tribes are given for what they are worth. At host, with the support of the instances quoted and collected, they show only a strong tendency to assimilate from the Hindus a very convenient custom. They do not prove, nor does the experience of the revenue officers of this Settlement support the existence of a well- established and general custom of adoption in any Mohammedan tribe. The very tribes which allege a custom of adoption have often no custom to guide them in replying to the immediately succeeding questions, which refer to rights which must often come under dispute in any tribe recognizing adoption. In the very common case where a sonless proprietor wishes to secure- the succession to his property for his son-in- law to the exclusion of collaterals encouragers had not to adoption but wills and alienations of various kinds. Of the instances quoted those contested in Civil Courts apparently resulted in the defeat of the adopted son, and the others will probably affect very small areas or seem to have been acquiesced in by the collaterals for family or other reasons.”

Rohtak District.

Answer to Question No. 73.-

"All tribes throughout, except Sheikhs of Jhajjar outside Guriani Zail, who say they have no custom of adoption give the same reply, that the presence of a son, son's son, or son's son s son is a bar to adoption but the presence of a daughter's son or lower descendant is no bar.”

Shahpur District.

Answer to Question No. I, Section VI.-

"Awans and Hindus.

"If a man have a son, or a son's son, or a son's son's sun, he cannot adopt. A daughter's son is no bar to the right of adoption.

Note.-All the Musalman tribes. except the Awans. Tiwanas and Pathans. say that no instance of adoption has occurred, and except among the A wans the custom of adoption may be said not to exist among Musalmans. Even among the Awans it is not common, and where adoption does occur. it is more a form of gift than of adoption properly so called. Among Hindus an adopted son is called Putrela. The usual expression for adopt" is putr banana make a son.

Sialkot District.

* Answer to Question No. 62.-

"Adoption is applied to the adoption of a child who is no longer an infant in arms. The term god lena is applied to the adoption of an infant in arms. Both imply the nomination of an heir for purposes of inheritance or succession. There is no difference and the custom is prevalent among all tribes."

98 P. R. 1883- Ghori Pathans of Mauza Gurian, Sialkot District. Custom of adoption is recognised.

63 P. R. 1911- Qureshis of Nianipuri, Sialkot District. Custom of adoption exists.

130 P. R. 1884- Kashmiri Sheikhs of Sialkot District. Custom of adoption does not exist.

Sirsa District (old)-

"No Musalman tribe except the Rains has any well-defined custom of adoption and indeed there is hardly any instance of it. What adoptions have taken place have had no clear legal effect "(1).

SECTION III

WHO MAY BE ADOPTED

36. Who may be adopted

There are no restrictions as 'regards the age or the degree of relationship of the person be adopted to be appointed.

37. Daughter’s or sister’s son

(a) A daughter's or a sister's son amongst Hindu non-agriculturists, is generally daughter s or sister’s son. ' recoiled as a proper person to appointed.

(b) But amongst agriculturists, especially in the eastern districts of the Punjab, such appointments are not now favoured, unless made with the consent of the agnates; and under a full bench decision of the Cheif Court (No. 50 P.R. 1893), they are to be presumed to be invalid (No. 39 P - R. 1897).

38. Only son

It is no valid objection to an appointed heir that he is the eldest or only son of his natural father.

(5) An agnate generally preferred, though not the nearest agnate.

"As observed by Sir H, M. Plowden in the judgment already quoted (50 P. R. 1893), as adoption is only one mode of diverting the succession, we should expect to find it as jealously restricted as other modes of alienation, and, as a rule, we do so find it. The general restriction throughout the Province amongst the tribes which recognize adoption, is that the person adopted must be one of the agnatic heirs (warisan yak jaddi). Most of the Riwaj-i-oms say "the nearer his relationship the better" and some lay it down as a positive rule that a more remote cannot be adopted in the presence of a nearer suitable agnate (I).

But it has since been judicially held that the provisions in the Riwaj-i-ams which point to the advisability of adopting from amongst near collaterals are nothing more than advisory; they are not mandatory (2).

In Jiwan Singh v. Pal Singh (3) it has been held that among Randhawa Jats of Amritsar District the adoption of a collateral, related to the adopter in the 9th degree, and of about 16 years of age was valid by custom, in the presence of nearer collaterals. In Sant Singh v. Mula (4) it was held that by custom among Jats of the Gujranwala District; the adoption of a distant collateral (9th or 10th degree) admittedly descended from common ancestor and, residing in' the' same village was not shown to be invalid in the presence of nearer agnates. It was observed-"The general' though not the universal principle held by 'the Jats and kindred tribes' in the Punjab is undoubtedly’ that a man may appoint an heir from amongst the descendants 'of a common ancestor and that he need not necessarily appoint the nearest collaterals.”

If a custom of adoption be proved to exist under which a collateral may be appointed as customary heir, the onus lies on the party asserting ,that there is any restriction operating to control the appointer in his selection (1)

Held, that among Hindu agricultural Rajputs of the Gurgaon Disuict as stated in the Riwaj-i-am and supported by instances, a widow can, without any permission, adopt one of her husband's relatives as her husband's heir. Held, further, that having regard to the other evidence on the record and in the absence of any instances directly bearing on the point, the condition laid down in the Riwaj-i-am under the question, who may be adopted viz., that the adopted person should be of a lower generation than the person adopting, must be taken to be merely indicatory and not mandatory. "We deduce that the provision in the Riwaj-i-am referred to the above means no more than that when it is a question of adopting a distant male relative it is fitting that endeavor be made to select one in a lower generation than that of the adopter (2)."

An entry in a Riwaj-i-am as to the person who can be adopted is only indicatory and not mandatory. An adoption of a collateral in the fourth degree among Jats of Mauza Hussainpur, Tahsil Nakodar. Jullundur District, is valid even though near collaterals are alive (3).

(6) Adoption of stranger or person of different got.

Generally a person of a different got cannot be adopted and the onus, therefore, of proving that a person of a different got could be adopted lies on the person asserting it (4).

Held, in Moman v. Mst. Dhanni (5) that the general custom is against the validity of the adoption of a stranger and the onus probandi resting on the adopted child (the illegitimate son of the widow of a brother to 'establish the validity of adoption by custom among Jats of Tahsil Fatehabad, District Hissar, had not been discharged.

There is no special custom among Sansi Jats of the Gujranwala Tahsil by which a daughter's son can be adopted unless he is a collateral or is of the same got as the adopter (6).

Where the general rule of custom as regards adoption is that a person outside the got of the adopter cannot be adopted, it is open to a person to prove that a stranger could also be adopted under certain circumstances. Among the Jats of Jullundur District, the general rule of custom is that a person outside the got of the adopter cannot be adopted (7). It was remarked in this case-"In Rattigan's Digest of Customary Law para 35, remark at p. 69, Ed. 10, it is stated that at any rate for the eastern and central Districts of the Punjab the general custom is against the adoption of a person of a different got."

Among Toor Rajputs (Mohammadans) of the Lahore District, the person adopted must be selected from collaterals, the nearer collaterals being given a preference to the remoter, .and if there are no collaterals the selection may be made from the same got and tribe as the adopter himself, except that a daughter's son or a sister's son is not eligible-(l)

The rule of Customary Law prohibiting the adoption or a stranger does not apply in the case of parties governed by Hindu Law (2).

(7) Adoption of a step-son.

A step-son who is is not of the same got as the adopter cannot thus be validly adopted. A sonless Arain of Jullundur City cannot by custom validly adopt his step-son who is not of his got (3). In matters of adoption a pichlag son is in no better a position than a stranger (4).

But the appointment of a pichlag who is also a collateral may not be invalid. Thus among Sikh Jats of Gurdaspur District the appointment of a pichlag who is also a collateral in the 4th or 5th degree is not invalid (5).

Held, that the onus of proving that the adoption of a stranger viz., the illegitimate son of a brother's widow is valid by custom among Hindu Jats of Bangroon, Tahsil Fatehabad, District Hissar, rests on the adopted son, and that this onus had not been discharged in the present case (6).

(8) Adoption of a brother.

The general tendency is to restrict the right of adoption to son’s person in the line of agnatic succession, though the rule is not absolute, Land the onus of proving that a particular collateral cannot be adopted is on the person denying it.

Held, that the onus of proof that the adoption of a brother among Hindu Jats of Ludhiana District, is not valid by custom, lies on the party asserting the invalidity of such adoption. Such adoption is not invalid. The adoption of a brother does not infringe the basic principle underlying the customary appointment of an heir as it involves no alienation of ancestral land to a person standing outside the agnatic group (7). It was observed in this case-"There is some authority against the appellants in 44 P. R. 1913 and 205 P.L.R. 1913, where it has been held that if a custom of adoption be proved to exist under which a collateral may be appointed as customary heir, the onus lies on the party asserting that there is any restriction operating to control the appointer in his selection. We are not, therefore, satisfied that the onus was wrongly laid.

See 1921, 49 Cal. 120, where the Privy Council remarked that under the Customary Law a brother can be adopted.

(9) Adoption of nephew or grand-nephew.

Similarly, adoption of a nephew or a grand-nephew is generally valid. Among Muhammadan Bhatti Rajputs of the Dasuya Tahsil in the Hoshiarpur District, a sonless proprietor is entitled by custom to adopt his brother's son (8). The adoption of a brother's grandson is valid by custom among Muhammadan Naru Rajputs of Hoshiarpur Tahsil (9).

(10) Restriction as regards the age or the adoptee.

Generally there is no restriction under the customary rule as regards the age of the person to be appointed. The general principle held by the Jats and kindred tribes in the Punjab is undoubtedly that the age of the adopted son is immaterial (I). Para 36 of Rattigans Digest of Customary Law lays down that "there are no restrictions as regards the age or the degree of relationship of the person to be appointed." The followingauthorities may be found in support of the general rule prevailing:-

51 P. R. 1867 - Agriculturist tribes of Ferozepur District.

37 P.R.18681

57 P. R. 1872 Mahtams and all Rajputs of Jullundur District.

43 P. R. 1879- Jats of Amritsar and generally.

58 P. R. 1879- Muhammadan Arains of Tahsil Nekodar, Jullundhur District.

34 P. R. 1883- Arains generally.

96 P. R. 1833 - Dudwal Jats of Mauza Garh:, Amritsar District.

172 P. R. 1883- Hindu Jats of Ambala District.

24 P. R. 1884- Jats of Tahsil Tarn Taran, Amritsar District.

95 P. R. 1889- Sainis of Tahsil Rupar; Ambala District.

147 P. R. 1889- Adoption of adults is common in the Punjab.

38 P. R. 1810 - Dhariwal Jats of Ferozepur District; even a man over 20 years of age can be adopted.

9 P. R. 1893- Garwal Jats, Ludhiana District. A married man may be adopted.

40 P. R. 1905- Man who is of age of puberty. can be adopted.

49 P. R.1909- Lohars of Amritsar. A man aged 26, married and with children adopted.

78 P. L. R. 1912- Agricultural Brahmins; Kangra District. A mature man can be adopted.

22 P. R. 1913- Randhawa Jats. Limitation of age in Riwaj-i-am is recommendatory, not mandatory.

44 P. R. 1913- Goraia Jats of Gujranwala District. The general rule-is that age is immaterial. A person aged 35 years adopted.

102 P. R. 1913 (P.C.)-Agarwal Banias of Zira; can adopt married nephews.

See also 3 P. R. 1866; 120 P. R.'1881; 119 P: R. 1882; 15 P. R. 1883; 98 P. R. 1883; 62 P. R. 1888; 4 P. R. 1892; 79 P. ,R. 1901; quoted infra.

It was observed by their Lordships of the Privy Council 1921-49, Cal. 120 that under the Customary Law "a brother can be adopted a daughter’s son can be adopted; there is no limit as to these of be person ,110 may be adopted; a married man who has had children may be adopted; and a guardian may give a boy in adoption.”

Exceptions.

64 P. R. 1883- Kapur Khatris of Amritsar (under Hindu Law).

A named man with family not adoptable.

C. A. 315 of 1888- Sarsut Brahmins, Delhi. After investiture a' man cannot be adopted.

(11) Adoption of an orphan, whether valid under custom.

According to the Mitakshara law, as recognized by the school of Benares, an orphan cannot be adopted (I). In Ramji Das v. Durga Parshad (2), a case relating to the Aggarwal Banias of Delhi, it was held that a Hindu boy could not be validly given in adoption by anyone except his father or mother, and accordingly where an orphan boy was given in adoption by his grand-uncle such adoption by a widow was invalid, even assuming that it was with the express or implied authority of her deceased husband.

It was observed in 1915, 52 Cal. 482 at p. 488-"Admittedly, under the Hindu Law, it is essential to the validity of an adoption that the child should be 'given' to the adopter by the father or, if he be dead, by the mother. No other person has the right, nor can such right be delegated to anybody else, (Maine's Hindu law, para. 132). Consequently, a. boy who has lost both his parents cannot be adopted."

Among Aggarwal Banias of Zira, District Ferozepur, the general rules of adoption under the Hindu Law do not apply, and by the custom applicable to them, the adoption of an orphan and a married man is recognized as valid (3).

Similarly, in matters of adoption Dhlars of Gurgaon, though non- agriculturists, are governed, not by the orthodox Hindu Law, but by the, Punjab Customary Law and there is nothing to prevent the adoption of an orphan among them (4).

About the Jains in Western India, it was observed by Fawcett, J., in 1920 45 Bom. 754 at p. 763-"The Court may legitimately give due weight to the fact that the restriction against the adoption of orphans imposed by Hindu Law would not naturally operate in the case of Jains. That restriction follows from the rule of Hindu Law that only a father or mother can give in adoption and that there must be a giving and taking of the adopted son. But as among the Jains adoption is purely a secular institution the reason for such a restriction disappears; and the ceremony or giving 'and taking may be dispensed with" (5).

The adoption of an orphan by a Hindu blacksmith of village Lohar in the Jullundur District 'was held valid according to custom (6).

There is a custom amongst the Aggarwals of Ambala according to which an orphan can be validly adopted (7).

Under the Customary Law adoption of an orphan is generally not considered invalid.

(12) Adoption of daughter to son.

Roe has observed in his Tribal Law in the Punjab (p. 33)-"The adoption of a daughter's or sister's son is a violation of the rule of agnatic succession, and also, except ill the case of endogamous tribes of the tribal rule which says that the land must never leave the got or clan. But the violation is not unnatural one, and it is not likely that such an adoption would be objected to by anyone but an agnate whose rights are affected by it. Some tribes still maintain that under no circumstances can such an adoption be made, but it may be said that it would usually be held valid if there were no agnates or if they assented to it. There has never been I any judicial decision to the contrary, nor does anyone but an agnate appear to have contested an adoption of any kind. The answers recorded in the Riwaj-i-ams may be taken generally as saying that a daughter's! or sister's son may be adopted in the absence, or with the consent, of agnates and those which assert that he can be adopted in the preserve of agnates without their consent are very few."

"There was no doubt at the commencement of our rule in the Punjab a very general feeling amongst the officers who sat as Judges in the subordinate Courts that the claims of the daughter's son were founded "on natural justice;" there were also undoubted instances of their adoption in Sikh times and the all-important question whether there was not an assent, express or tacit, of the agnates to the adoption, was overlooked. There was also the general guiding principle of the courts that the Hindu or Muhammadan Law was to be followed unless a special custom modifying or varying it was proved. Enough was already known about customary adoptions for the courts to be able to say that the restriction of Hindu Law did not apply to them and the courts at once concluded that therefore there was no other restriction. All these points are fully brought out by Sir H. M. Plowmen in his exhaustive examination of all the cases which have come before the Chief Court both amongst Hindus and Muhammadans" (I).

The question of adoption of a daughter’s son was fully considered in a Full Bunch Ruling reported as Rolla v. Budha (2). It was observed by Sir H. M. Plowden in that case-"The second important point to which these records testify is that, though the adoption of .a non-agnate, and especially of a daughter’s or. sister’s son, or a son. in-law, may be valid in presence of agnates, It is quite exceptionally so, more particularly In the presence of near agnates.

This general remark holds good equally of Hind us and Mohamm'idans but it is probable at the same time that the adoption of a daughter's son is most likely to be tolerated where the marriage rule of endogamy has been so far established that the descendants of a common male ancestor are allowed to intermarry. that is to say, where the daughter husband may be of the same genealogical family as her father, and need not as in the exogamous got, be of a strange family There appears therefore no reason for supposing that, at any rate in respect to the adoption of nonagnates in the presence of near agnates, the power of adoption forms an exception to the general rule which gives the warisan ek jaddi or the karabatian the right to control acts of a sonless owner of ancestral land detrimental to their presumptive right of succession-

The conclusions were summed up in the following words- "I think therefore we are fully warranted in holdings generally, creed, tribe and locality apart, that when a sonless man. in any landholding group which recognizes a power to adopt. 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 outside is against the power, and in the absence of any admission in the pleadings in a particular case which may qualify the presumption, the form of the issue should be such as to throw the burden of proof on the person asserting the existence of the unqualified power.

"The presumption, it may be added, is merely a general presumption to be made at the outside irrespective of any evidence, much as the Wajib- ul-arz, the Riwaj-I am, or precedents, judicial or non-judicial, which may be forthcoming at a later stage of the case as evidence upon the issue previously framed with reference to the general presumption. That evidence of course mayor may not be such as to shift the original burden on the opposite party, but cannot effect the original form of the issue." The. initial onus may, of course, be discharged by the production of an entry in the Riwaj-i-am (e.g., in favour of the validity of the adoption of a daughter's son and in that case ~he presumption-would arise that such adoption is valid, and the onus would then shift on the opposite party to rebut it (1).

It was remarked in Buta Singh v. Gurmukh Singh (2)-"The ruling (50.P: R. 1893) may have lost some of its force in view of the subsequent decisions of their Lordships of the Privy Council, laying down the principle that the Riwaj-i-am is entitled to great weight as evidence of custom and that the onus lay on the party who seeks to set up a custom contrary to that stated in the Riwaj-i-am. Nevertheless it is still a very valuable and lucid exposition of the general position as regards the custom of adoption in the Province.

Similarly, it was observed in Ajaib Singh v. Lal Singh {3)-" As a matter of fact, however, the Riwaj-i-ams both of 1865 and the later Riwaj-i-am of 1914 clearly lay down that the adoption of a daughter's son is not valid by custom in two of the three Tahsils of which Amritsar District is .composed. The onus therefore, as rightly pointed out by the learned Distinct Judge, lay on the plaintiff especially in view of the Full Bench ruling cited by him, namely, Rallav. Budha (50 P. R.1893)."

See also 1934, 16 Lah. 214 at p. 226, and 1924 5 Lah. 519 in which the same view has been upheld. '

A.I.R. 1925 Lah.243=55 Lah. 519 related to the adoption of a daughter's son by a sonless Hindu lat proprietor of Tahsil Kharar, Ambala District. It was remarried-"Before 1893 the view of the Punjab Chief Court as expressed in 50 P. R. 1874 was that by the general custom of the Punjab the adoption of a daughter's son was valid, and it was on the basis of that ruling that the adoption of a daughter's son by a Sikh lat of a village in the Kharar Tahsil was declared valid in 129 P.R. 1882. But the theory that there was a general custom in favour of the adoption of a daughter's son was not accepted by a Full Bench of the Chief Court in 50 P. R. 1893 which laid down that the burden of proof. was On the defendants who alleged the adoption of a daughter's son to be valid against the plaintiffs, and that generally-creed, tribe and locality apart-when a sonless man in any land-holding group which recognizes a power to adopt asserts that he is competent to adopt a -daughter's son on other non-agnate in the presence of near agnates, irrespective of their assent, the presumption at the outset is against the power."

Where, however, a sonless proprietor by custom may appoint one of his kinsmen to succeed him as his heir, the adoption of a daughter's son who is also a collateral, is as a rule valid and does not contravene the principle of the agnatic theory. See 1934, 150 I. C. 663=A.I.R. 1934 Lah.849, a case relating to the Jats of Gujr'lnwala District.

The correctness of the rule laid down in 50 P. R. 1893 (F. B.] was contested in 34P. R. 1899,33 P.R. 1900 and 116 P. R. 1901, but. The learned Judge dealing with those cases considered it unnecessary to enter into this matter further. In 48 P. R. 1903 [F. B.] at p. 179 Chatterji, J. remarked that the pronouncement made against the adoption of a daughter's son had not been readily accepted.

The burden of proving that by custom among agricultural tribes of the Punjab the adoption of a daughter's son is valid, is on the person asserting such custom (1). In as much a, the right to adopt a daughter's son is equally opposed to Hindu law and to the General Customary Law throughout the Province, the burden of proving that such a custom exists among a particular tribe is on the party alleging it (2).

In 1922, 4- Lah. 102 a case relating to Hindu Jats of Hoshiarpur District, the learned Judges observed-"'The agricultural tribes of the Hoshiarpur District are not devoted votaries of the agnatic theory and the general custom is so far modified among them that it does not look with

disfavor upon the drifting of ancestral land into the hands of such non- agnate as are related through daughters or sisters."

See also 1926, 96 I. C. 907 at p. 908 in which it has been held that there observations cannot, however I be taken as laying down a general rule that agricultural tribes of the Hoshiarpur District have departed from the agnatic theory.

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

What's New

Regarding Additional Stamp Duty
Notification dated 30-01-2019_regarding amendment in Schedule I-A of Central Act 2 of 1899 : The Indian Stamp (Punjab Amendment) Ordinance, 2019
Pilot launch of Demarcation by using Electronic Total Station in five districts Patiala, SAS Nagar, Ludhiana, Amritsar and Jalandhar.
Launch of Online Registration (NGDRS) as pilot project at Moga and Adampur on 17th November, 2017.
Online Registration (NGDRS) is implemented in all Sub Registrar Offices of 22 Districts of State of Punjab