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Essentials of a valid adoption.

The essential requirements or the validity of an adoption are the factum of adoption and (b) Its vacuity. No adoption can be recognized as valid until the boy has been adopted in fact. Similarly, even if it is proved that a boy was actually adopted, but it appears that adoption was not valid by custom, the adoption is liable to be set aside at the instance of the persons competent to contest.

Factum of adoption-intention to adopt.

The two elements which are essential to constitute the factum of' adoption are (i) an intention to appoint an heir, and (ii) an act is associated.

As has already been observed, adoption under customary law in the Punjab is quite distinct from adoption under Hindu Law. Adoption under custom is no more than a customary appointment of an heir, and con-squatty religious rites are not necessary to constitute a valid adoption even among Hindu of non-agricultural classes. The really important thing is the unequivocal insertion and treatment.

Where power to adopt is admitted, all that is necessary to constitute an adoption is the clear expression of an intention on the adoptive father's part to adopt the boy concerned as his son, and a sufficient manifestation of that intention (1). Thus one of the essential requirements for the validity of an adoption is that it should be made public.

And this can be effected either by a formal declaration before the clansmen, or by a written declaration, either preceded or followed by some treatment consistent with a deliberate appointment, Or by a long course of treatment "evidencing an unequivocal intention to appoint the specified person as heir" (2).

In a case where the adoptee lived and served the adoption for many years; was separated from his own brothers and had not taken a share of the land left by his natural father; had been treated by the adoptor as his son and had performed the funeral obsequies of the adoptor on his death; the Court held that under the circumstances the adoption was valid though there was no ceremony at the time ()f the adoption (3). Where an adoptor took adoptee when three months old, and adoptee lived with him for 40 years till his death cultivating his land and being supported by him, it was held sufficient to constitute a valid adoption (4). In a case relating to Ghorewaha Rajputs of Jullundur District, taking of brother's son at early age, bringing him up and keeping him and his wife at home, even without any formal declaration, was held sufficient for adoption (5). An unequivocal declaration of intention, coupled with previous and subsequent treatment would be sufficient to prove valid adoption (6).

What is essential for adoption is some unequivocal declaration of the appointment which may be manifested by a formal declaration before the brotherhood, by a written declaration or by a long course of treatment. The performance of ceremonies is not essential (7).

The adoptor made a statement in Court alleging the appointment or adoption in question. The next day he celebrated the marriage of the boy as his son thereafter he looked after his education and allowed the boy to describe himself as hi$ adopted son or appointed heir, and the boy lived with him as his son; held, that it was immaterial whether there was or was not a gathering of the brotherhood at the time (ibid).

Deed of adoption with proof of intention to adopt held sufficient to prove a valid adoption.

A declaration by deed when it is coupled with previous and sub sequent treatment, is also sufficient to establish adoption. In a case relating to Muhammadans of Tahsil Dasuya, Hoshiarpur District, adoptee was brought up from infancy by adoptor and married by him. A deed was executed in 1872, stating the adoptor regarded him as a son and desired he should succeed. In 1873 mutation was effected but possession was not given. There was no evidence of revocation. Adoption was held proved (1). Similarly, in a case re1ating to Muhammadan Arains of Tahsil Nakodar, testamentary disposition shortly before adoptor's death and long course of treatment showing intention, proved a valid adoption (2). Residence for 15 years, association in cultivation and marriage, and declaration shortly before death, also have been held to constitute fact of valid adoption (3). In 15 P. R. 1881, intention to adopt an heir was inferred from (i) the adopted son being treated as an heir, (ii) by his living with the adoptor, (iii) on the adaptor's death continuing to live with his widow and (it) being recorded in the revenue papers as an adopted son.

In the following cases also fact of adoption was held to be proved-

98 P. R. 1883- Ghori Pathans of Sialkot District. Adoptor lived with adoptee and his natural father for 12 years, and later executed deed of appointment 28 days before death.

27 P. R. 1884- Gil Jats, Ferozepur District. Adoptee, adoptor's brother's daughter's- son, brought up by adopt or, and formally adopted in presence of a number of persons. Deed was publicly drawn up.

98 P. R. 1884- Badhal Jats, Ludhiana District. Execution of registered deed, adoptee being step-son born in adoptor's house, brought up by him; no publicity at time.

86P. R. I 885- Registration of deed and treatment for several years as adopted son.

38 P. R. 1890- Dhariwal Jats of Ferozepur District. Where the adoptive parent undoubtedly brought up and treated as his son and grandson both his stepson and the son of stepson and appointed the latter as his heir by a formal deed, when he was between 20 and 25 years of age, and the adopted person was a Dhariwal Jat and collateral, the adoption was held valid by custom.

 

4 P. R. l89Z- Tak Jats of D~lhi District (old). Executing and registering a deed reciting the adoption, and gifting him his land, and also making some sort of declaration before the brotherhood. accompanied by home .simple ceremonies giving publicity to the intention to make him his heir, followed by treatment as a son, though only for a short time up to the death of the adopted, proved a valid custom.

9 P. R. l893- Educution of deed, accompanied by 10 years' affectionate treatment. No residence and no revocation. The adoption is not invalid merely because the brotherhood had not been assembled to witness the execution of the deed. :-

3 P. R. 1901- Dhawan Katris, Ferozepur District. An unequivocal declaration deed, and subsequent treatment. No ceremonies.

79 P. R. 1901- Acharya Brahmins of Tahsil Dera, Kangra District. Declaration by deed and l' years' previous residence, helping in business and being maintained. No ceremonies.

116 P. R. 1901- Hindu Jats, Garsllankar Tahsil, Hosbiarpur District; Brought up from childhood; registered deed. marriage by adoptor.

67 P. R. 1902- Sandhu Jats of Tahsil Kasur, Lahore District. Where a deceased had publicly acknowledged a person as his adopted son before the society of his village and the latter's betrothal had taken place in the house of the adoptive father, held that the adoption was made sufficiently public,' although a deed reciting the adoption was executed only shortly before the death of the adoptive father.

40 P. R. 1905- The execution of the deed of adoption, coupled with the adoptor's clear statement in Court and continuous subsequent treatment was held sufficient to constitute a valid adoption, where adoption prevailed in the tribe to which the parties belonged and the adoptee was a proper person to be adopted under Customary Law. The assembling of the brotherhood and the issuing of a notice to reversioners, for the sake of publication of the adoption, is unnecessary, where sufficient publicity is other- wise given to it, e.g., by registration of the deed.

69 P. R. 1905- Hindu Jats of Dasuya Tahsil, Hoshiarpur District. Execution of deed, evidence of factum and clear declaration in:Court.

An entry in the Riwaj-am recognizing the existence of a certain customary right and mentioning some Instances In Its support, was not a mere theoretical opinion on a hypotical case put by the settlement authorities. but a statement of the prevailing practice based on a knowledge of existing facts and as such it had a considerable evidential value."

1 P. L. R. 1906- Registered (deed, evidence of factual. Mere fact adoptee bad described himself in deeds as son of his natural father insufficient to discredit.

42P. R.1911- Previous treatment of the boy as adopted Son is not a sine qua non and What is necessary is the clear expression of an intention on the part of the adoptive father to adopt the boy concerned as his son, and that intention is sufficiently manifested by the execution and registration of the deed of adoption coupled with a clear declaration in Court and subsequent treatment as adopted Son. Proof of subsequent; treatment, however. cannot be reasonably demanded where the adoption is immediately challenged b) suit.

78 P. L. R.1912- Execution of deed and 13 months' treatment as Son held sufficient to constitute a valid adoption.

22 P. R. 1913- Randbawa Jats of Atnritsar District. Execution of a deed of adoption before the brotherhood was sufficient and the registration of it was sufficient publicity of adoption. and the non-perfofnlance of other ceremonies was immaterial.

102 P. R.1913 P. C.- Agarwal Banias of Zira, Ferozepur District. The general rules of Hindu Law as to adoption do not apply, and by the custom applicable to the Agarwal Banias of Zira an unequivocal declaration by the adopting father that a boy has been adopted and the subsequent treatment of that boyas the adopted son is sufficient to constitute a valid adoption. No ceremonies are necessary.

78 P. L. R. 1914- Agricultural Brahmins of Kangra District. Unequivocal declaration accompanied by treatmentas a son held sufficient for valid adoption. No ceremonies are necessary.

A. I. R. 1923 Lah. 523 - All that is neeessary to constitute an adoption

.=6 Lah. L. J. 39 is the clear expression Qf an intention on the

A. I. R. 1949 adoptive father's part to adopt the boy concerned

E. P. 342 = as his son, and a sufficient manifestation of that

51 P. L. R. 70 intention is the execution of the deed of adoption coupled with a clear declaration in Court and continuous subsequent treatment as adopted son.

" See also A. I. R. 1923 Lah. 497=77 I. C. 473; 1921, 60 I. C. 448 to the same effect.

A. 1. R. 1949 E. P. 156- Registered deed of adoption coupled with previous or subsequent treatment as son constitutes sufficient evidence of adoption.

Mere execution and registration of deed without proof of intention to adopt not held sufficient to prove a valid adoption.

64 P. R. l879- Hindu Jats of Tahsil Nakodar, Jullundur District. Execution of deed in anticipation of death without proof of previous appointment not held sufficient to constitute a valid adoption.

Gil Jats or Jullundur District. Mere execution

C. A. 1059 of 1880 and registration of deed a few days before and

C. A. 610 of 188} in contemplation of death, no previous intention

72 P. R. 1882 to adopt having been manifested, not sufficient to prove adoption.

170 P. R. 1882- Mauza Budhsinghwala, Lahore District. Mere execution of deed

98 P. R. 1883- The appointment by will shortly before death or the mere execution and registration of a deed of adoption by a person at the time in full possession of his senses, is not sufficient in all cases for the effectual of a customary heir.

4 P. R. 1884- Sindhu Jats of Tahsil Kasur. Mere execution of deed of gift not mentioning that the child has been brought up as son or intended to adopt, is not sufficient to prove adoption. Regular adoption deed is however not necessary if there is proof of treatment as son.

154 P. R. 1884- The mere existence of a registered deed is not sufficient to constitute an adoption and the adoption must have been public, and the potention to adopt have been made manifest.

124 P. R. l886- Muharnmadan Ghorewaha Rajputs of Ludhiana District. Taking relative into house and bringing up as son, and declaring him to be adopted by executing deed shortly before death, not sufficient for proving adoption.

28 P. R. 1887- Bhindar Jats of Gujranwala District. A childless and very old man shortly before death executed and registered a deed of adoption of a very distant relative who lived in a neighboring village It was held that adoption was not proved.

98 P. R. 1892-- Jaj Jats of the Hoshiarpur Tahsil. Where a childless proprietor in his old age executed a deed of gift of his ancestral property in favor of a stepson reciting there in that he had adopted him and also given possession of the property gifted, the said stepson being of middle age and a stranger of ghairkaum and there being no proof that any previous ceremony of adoption has taken place, the deed could not be supported as a valid deed of adoption or gift.

12 P. R. 1893- Manhas Rajputs, Hoshiarpur and Kangra Districts. Mere paper adoption is not sufficient.

94 P. R. 1893- Dhaliwal Jats, Gurdaspur District. The execution of a deed of adoption is one of the recognized methods of giving publicity to the fact of the adoption, and might be sufficient to support an actual adoption even in a case where no long course of treatment, previous to the execution of the dead, has been shown to have taken place provided that there is proof, e.g., in the shape of subsequent treatment that the real intention of the writer was to adopt a son and not merely to appoint an heir by will. But where the execution of the deed of adoption is neither preceded nor followed by any treatment of the adoptee as a son, the adoption cannot be upheld as valid by custom.

142 P. R. l893- Sindhu Jats of Moga Tahsil, Ferozepur District. ." Adoption by deed alone by an old man without issue to the prejudice of his presumptive heirs, could not be recognized by custom as valid.

112 P. R. 1894- A deed of adoption had been executed and registered but the adoption was not publicly made, there being no assemblage of the brotherhood, and the distribution of sweetmeats. The recitals in the deed that all ceremonies had been performed was taken as false. It was held that a secret paper adoption of this nature could not be looked upon as sufficient even in the case of a boy who could be validly adopted by custom.

25 P. R. 1896- Where the parties were Naru Rajputs of Hoshiarpur District, and it was found that deeds of adoption had been executed by sonless proprietors, containing false recitals of previous adoption with usual ceremonies and treatment as son of the alleged adoptee, and the adopters had died within a month after the execution of the deeds, held, that counterfeit adoptions of this nature consisting only of a document executed in anticipation of approaching death amounted to a mere nomination of a successor in the nature of a bequest, and mere deeds of adoption not followed or preceded by any treatment as a son, could not be recognized as valid by custom.

67 P. R. 1901- Kathana Gujars of Gujarat District. The mere registration of a deed not perfected by other acts is ordinarily insufficient to constitute a valid adoption.

29 P. W. R. 1907- Jats of Batala Tahsil, Gurdaspur District. Mere execution of deed and admission in suit to contest Riwaj-i-am requiring feast, not held sufficient to constitute a valid adoption.

82 P. L. R. 1911- Existence of enmity between adopter and collaterals demands strong proof that adoption should not merely be a paper one. Where there is a deed only, no credible evidence of treatment, and adopter dies in few months after deed Without further declaration, adoption is not proved.

42 P. L. R. 1913 - Registered deed; declaration in Court and. At mutation that adoption effected, followed by written deed filed in Court that there had been no adoption but former deed merely executed to defeat reversionary. No evidence of treatment. Fact of adoption not held proved.

1. L. R. 1923, 4 Lah. 356- Where there is a deed of adoption, but it is found that the adoption was a mere paper transaction and that the boy was never actually adopted, the adoption deed (specially when it makes no mention of any gift) cannot be treated as a deed of gift in favour of the boy

A.I. R. 1930 Lah. 1072- Where a deed executed and registered by

130 I. C. 51 the alleged adoptive father purports to recite the fact of adoption. although no doubt the execution and registration of the deed constituted sufficient publicity of the fact of adoption, in order to entitle the person mentioned in the deed as the adopted son, it is essential for the adopted son to show that after the registration of the deed there has been continuous subsequent treatment of himself by the adoptive father as the adopted son of the latter.

A.I. R. 1946 Lah. 305- There must be a clear declaration of an

48 P. L. R. 1034 intention to adopt the boy `concerned as a son and the execution of a deed of adoption with the continuous subsequent treatment as an adopted Son is a sufficient manifestation of that intention. Where this continuous subsequent treatment as an adopted son is lacking, the mere execution and registration of a deed of adoption is not enough. In the absence of proof of adoption a deed of adoption is no more than a mere paper transaction.

In the following cases also fact of adoption was held proved-

111 P. R. 1868- Adoptee lived with and served adopter for many years, was separated from his own brothers, had taken no share in his natural father's estate, had been treated as a son, and performed kiriakarm, but there was no ceremony.

5 P. R. l874- Adoptor took adoptee when three months old and adoptee lived with him for 40 years till his death, cultivating his land and being supported by him.

77 P. R. l878- Aroras of Lahore City. Evidence of bringing up from six years of age, marriage and investiture with janeo by adopter, general repute and admission by widow.

71 P. R. l880- Ghorewaha Rajputs of jullundur District. Taking of brother's son at early age, bringing him up, and keeping him and his wife at his home. No formal declaration.

51 P. R. l881- Treatment by adopter and successor, adoptee living with him, and on his death living with the widow. Record of adoption in Settlement-Records.

In the following cases fact of adoption was not held proved-

103 P. R. l880- In all cases the point to determine is whether there was an intention to appoint an heir, and if that intention has been manifested in the manner regulated by the custom applicable to the parties concerned, it is immaterial if the adaptor dies soon after.

36 P. R. 1884- Agricultural Brahmins of Rohtak District. Mere declaration before settlement authorities that an adoption had taken place, and an expression of desire to mutate.

102 P. R. l884- Where the alleged adaptor took the alleged adoptee (his sister's son) to reside with him, the fact, which under ordinary circumstances might raise a presumption in favour of adoption, raised no such presumption when the-:father and mother of the adoptee also lived with the adoptor, there being no evidence'; of an unmistakable declaration of intention.

C. A. 896 of l887 - Boal Jats; Ludhiana District. Where a person

= 101 P. R. 1889 has been brought up in another's house, has been married in his family and managed 'his land, there must be a manifested intention on the part of the Owner that such person is to be his heir and in that case only adoption will be valid: -

73 P. R. 1894 (P. B.)- There can be no adoption known to the law, whether the parties be governed by Hindu Law or by Customary Law, unless the alleged adoptor has manifested an intention to, exercise his power to adopt, and in every valid adoption there, must be some external and visible act or series of acts done by the adoptor or under express authority from him, which act or series of acts give effect to his intention.

59 P. R, l895- Chuhan Rajputs of Chakwal Tahsil, Jhelum Distrist, The circumstances of the donee's living with the donor and managing his affairs in his latter days and rendering him service, and the donor's treating him as a son and performing his marriage was explained on other grounds and did not prove that the done was an appointed heir.

3 P. R. 1908- Sarsut Brahmins of Gurdaspur. Being brought home by an uncle when an orphan, educated, married and treated as a son, but no expression of intention to adopt.

82 P. L. R. 1911- The enmity between the adoptor and his collaterals

9 I, C. 268 is an evidence of a very strong motive for the adoptor to injure the collaterals and a strict proof of the genuineness of adoption is required. Where there is no evidence of the treatment of the adoptee as a son and the adoptor died a few months after the execution of the deed of adoption, held that The factom of adoption is not established.

Ceremonies of adoption-whether formal 'giving and receiving absolutely necessary.

It is beyond question that, according to the law of the Mitakrhara, the 'giving and receiving' are absolutely necessary; they are the operative part of the ceremony being that part of it which transfers the boy from one family into another (1). Nowhere in the Punjab can it be said that religious rites are necessary to constitute a valid adoption even among Hindus of non-agricultural classes (2).

Even from the point of view of strict Hindu Law the Datta Homan ceremony is not essential (3). It was observed in A. I. R. 1916 Lah.347 (34 I. C. 478), a case relating to the Khatris of Lahore City-

"As to the necessity for ceremonies, even according to Hindu Law the essential and operative portion of the ceremony is the giving and accepting and in the Punjab where the strict Hindu Law ceremonies are rarely observed in their entirety, the giving and accepting of a child in adoption is all the ceremony that is essential."

In a case where the parties were Aroras of Lahore and governed by their personal law and not by agricultural custom, the court said-" As regards the factum of adoption, there is not one single witness who states that there was a formal giving and taking of the child. We are quite prepared to concede that an elaborate religious ceremony is quite unnecessary, at any rate, in the Punjab, for a valid adoption, .but we are equally satisfied that there must be a formal giving and taking of the child to be adopted" (4).

Similarly, it was observed in 271 P. L. R. 1913-"Though the family concerned (in this case) is a high caste Brahmin family they have as a fact been much affected by custom in regard to their observance of strict Hindu Law. There is no doubt whatever that by Punjab Custom the adoption In question is perfectly valid and we do not see why it should not be considered equally valid under Hindu Law as generally understood in this part of the country."

In 117 P. R. 1918 (a case of Sarsut Brahmins of Delhi), the court said-

“No doubt in the Punjab the performance of an elaborate ritual or religious ceremony is quite unnecessary to the validity of an adoption; but we know of no authority for the view that mere treatment unaccompanied by a formal giving and taking of the child to be adopted, satisfies the conditions necessary to a legal adoption.

In 1930, 11 Lah. 503, where the parties were Aggarwals of Panipat and governed by the Hindu Law, Bhide, observed-"It is well settled that the physical act of "giving and receiving" is absolutely necessary in order to constitute a valid adoption. It is of the essence of adoption and the law does not accept any substitute for it

It is well settled that a customary adoption in the Punjab requires no religious ceremonies to complete it being a purely secular institution (1). According to the notions prevailing among Punjab agriculturists, adoption is in no sense connected with religion and partakes more of the character which the assumed the. later Roman Law as a simple. Normans herds mstltutlo, that is to say, It is more or less a public Institution; by a sonless owner of land of a person to succeed him as his heir (2).

It was remarked in Jehnu v. Saud agar (3)-"If in any case we observed that the parties to the adoption were punctilious as to the observance of ceremonies prescribed by the, Hindu ritual, we should give this fact all due weight in deciding whether the consequences in accordance with the custom of the parties were in accordance with the rules of Hindu Law; but for the rest we are disposed to think that the distinction rests on no basis of fact or principle, and that it is altogether opposed to the spirit of the institution of adoption as it prevails in this Province, one feature of which is the little heed it gives to the observance of ceremonies." In Jivan singh v. Pal Singh (4), a case relating to Randhawa Jat of Amritsar District, the execution of a deed of adoption before the brotherhood and the registration of it were held sufficient publicity of adoption, and the non-performance of other ceremonies was considered immaterial. Similarly, it was observed by Bhide, J. in Phool Singh v. Tota (5) :-"The adoption has been held to be invalid only owing to absence of certain ceremonies required under the special custom of the Rohtak District. According to the general custom of the province it might have been valid."

In the Punjab these customary adoptions are not adoptions in the ordinary sense but are really appointments of heirs: so no particular ceremony is necessary for adoption (6).

The appointment of an heir is not invalidated simply by reason of publicity not having been given to the fact, provided it is made in some unequivocal and customary manner (7). Nor is it invalidated by the non- performance of ceremonies. The following authorities in support of this proposition may be read with advantage-

37 P. R. l868- Disregard of rules of strict Hindu Law will not invalidate adoption. Kritrima form. Ambala District.

111 P. R. 1868- Absence of ceremonies will not invalidate adoption.

9 P. R. 1880- Bhular Jats of Lahore .District. No ceremonies necessary.

96 P. R. 1883- Dudwal Jats of Mauza Garhi, Amritsar Tahsil. The onus lay on the plaintiffs to establish some special custom of their tribe that adoptions should not be valid without ceremonies.

4 P. R. 1884- Sindhu Jats of Tahsil Kasur. No ceremonies

102 P. R. 1884- By custom a Sayyad of Ferozepur District can appoint a child of tender years to be his heir. especially his daughter's son. No particular ceremony is required to give validity to such an adoption.

138 P. R. 1894- In the Punjab little heed is paid to ceremonies.

40 P. R. 1905- Hindu Jats of Gurdaspur District. Among agricultural tribes where the right of adoption is admitted or is found to prevail, and where the person selected is a proper person to be adopted the execution and registration of a deed of adoption coupled with the adoptor's continuous previous and subsequent treatment is sufficient to constitute by custom such an adoption valid, even without proof of any other formalities.

78 P. L. R. 1912- Agriculturist Brahmins of Kangra District.

= 14 I. C. 479 Elaborate ceremonies are not necessary. An unequivocal intention to adopt with treatment as such is sufficient. The age of adoptee is immaterial.

22 P. R. 1913- Randhawa Jats, Amritsar District. Ceremonies not necessary.

A. I. R. 1939 Lah.62- Sara sub-caste of the Jat tribe in village

=41 P. L. R. 387= Hans, Tahsil Jagraon. District Ludhiana,

182 I. C. 576 no special formalities are considered necessary in cases of adoption but a mere declaration of adoption and general treatment as a son are considered sufficient. Where there is a deed of adoption which was later followed by a gift of land to the adoptee, this is sufficient compliance with what is required by the customary law.

Where a special ceremony is stated to be incumbent, person alleging such must prove same (1).

Where power to adopt is admitted, and expression of intention is evidenced by a deed, the onus is on persons denying to prove that to exercise such power it must be exercised in a particular way (2).

It may be doubted whether the kritima form prevails or ever has prevailed in the Punjab generally. The feature of the kritima form is that the adoptee's consent to his adoption is necessary, and it must be given in the lifetime of the adopting father; consequently it is the form by which adults are adopted. Adoption of adults being common in the Punjab, and not being admissible under the the Dattaka form, It has .been merged that the kritima form prevails here, whereas the truth probably is that neither form prevails, and that adoptions among agriculturists are generally informal and customary adoptions (3).

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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