RAWALPINDI DISTRICT :
** Answers to Questions Nos. 33 to 36.-
"The reply given by Hindus and Bhabras to this is that the adoptive father can give what share he pleases to his adopted son but this reply must be received with caution. '
The raply. by .all tribes who admit the custom of adoption is that the adopted son will inherit the whole estate of the adoptive father, but Muhammadans in Rawalpindi add that at the time of adoption it is usual to fix the share to which the adopted son will succeed. In the absence of such provision, the adopted son will take the whole. The. reply to this is that an adoptee father can do what he pleases with acquired property, but can only dispose of ancestral property with the consent of his relatives. In Kahuta, custom supplies the Gakhars with no reply. Elsewhere all tribes alleging a custom of adoption reply that no distinction is made between acquired and ancestral property. The adopted son will inherit all propertyof whatever kind.
The Gakhars of Kahuta have no custom to guide them. All others alleging a custom of adoption reply that an adopted Son' having' become by adoption a son with full rights, he and the after-born natural Son will share equally.
The general reply of Hindus is that the adopted son in such cases retains his rights over the estate of his natural father, but in the village of Kuri the reply was that he only does so in case his natural father has no other sons.
The Bhabras give the same reply as the Hindus of Kuri. Hindus reply that the adopted son will not succeed to the property of his natural father if the natural father has other sons. Muhammadans say that an adopted son loses all rights in his natural father's property even if he has no brothers, but the instances do not support this statement."
Answers to Questions Nos. 85 and 86.-
"All tribes admitting adoption throughout, except pathans of Guriani, reply that the adopted son Cannot inherit from his natural father as son. If his father die without other issue he will inherit such share if any as he is entitled to by his place in the family as Son of his adoptive father.
The Pathans of Guriani zail, however, state that if his natural father die without other descendants, he will inherit also as his son, while in respect to the property of any other member of the family he ranks only as son of his adoptive father. They quote the instance of Nazir Mu-hammad Khan of Guriani who was adopted by Meharban Khan; his real father, Mubarak Khan died, without other sons surviving and Nazir Muhammad Khan inherited his property, and a suit against him was dismissed.
Note.- The case is an old one, being cited in Riwaj-i-am of 1879.
Brahmans and Jats throughout, Ahirs, Biloches, pathans of Guriani zail and Hindu Rajputs of Jhajjar, agree that the son inherits pari passu from his adoptive father with any natural sons born after the adoption. A boy of another tribe cannot be adopted.
Hindus and Muhammadan Rajputs of Gohana and Rohtak and Pathans of Gohana state that if natural sons are born after the adoption the adopted Son loses his right to inherit from his adoptive father, but reverts to his position as son of his own natural father
99 P. R. 1909-Jats of the Rohtak District. A custom of collateral succession in adoptive father's family, by adopted son or his heirs, exists.
** Answers to Questions Nos. 13 and 14.-
Awans.-An adopter Son retains all his rights to inherit from his natural father.
Hindus .-If the natural father die without other sons, the adopted son inherits from natural father; but if the -natural father have other sons, the adopted son does not inherit from his father.
"Awans.-An adopted son inherits from his adoptive father the share of the property gifted to him in writing by the adoptive father. Should a natural son be born after the adoption the adoption is cancelled.
Note.-Among Musalmans a so-called adoption is really a conditional gift.
Hindus.-An adopted son inherits from his adoptive father exactly as if he were a natural son. and shares as a son with natural legitimate sons subsequently born to the adoptive father."
Answers to Questions Nos. 74 and 75.-
"If the adopted son is the only son of his natural father. he succeeds to the property of his natural father as well as to that of his adoptive father and can succeed to the property of the collaterals of his natural father just as if he had not been given in adoption, If he is not the only Son he cannot succeed to the property of his natural father.An adopted son will inherit from his adoptive father exactly as if he were a natural son. He will share as a son equally with natural legitimate sons subsequently born to the adoptive father according to the pagvand system. He succeeds to the property of the collaterals of his adoptive father as if he were a legitimate son."
Right of an adopted son to succeed in his natural family.
49 P. R. 1912- Bajwa jats. The general presumption is that a person adopted in the customary manner in the Punjab as an heir does not thereby ordinarily lose his rights to succeed to property in his natural family, at least as against collaterals. The adopted son who had received half of the land in suit by inheritance from his natural father even before his adoption, could not lose by adoption property to which he had already succeeded.
Right of an adopted son to succeed to his adoptive father.
A. I. R. 1935 Lah. 385- Arains. An adopted son is treated as a natural son and shares equally with the natural son his adoptive father's inheritance. As Soon as the natural Son dies his property as it were goes back to his father, and as the adopted son is the legitimate heir of his adoptive father, it automatically devolves on him. Hence the adopted son succeeds in preference to collateral of adopted father.
Right of an adopted son to succeed collaterally in his adoptive family.
4 P. R. 1906- Chima Jats of Tahsil Daska. An adopted son is entitled to succeed to the estate of his adoptive father's collaterals in the same manner and to the same extent as a natural son of such adoptive father would succeed. Over-ruled in 50 P. R. 1908.
50 P. R. 1908- Chima Jats of Tahsil Daska. The onus lay on the adopted son to establish a right to succeed collaterally in the family of the adoptive father which was not discharged. 4 P. R. 1906 over ruled.
61 P. R. 1909- Kang Jats of Tahsil Daska. The adopted son on whom the onus rested, failed to prove a custom under which he could inherit to the collaterals of his adoptive father.
On the death of the appointed heir his male issue succeeds, and in default of such issue his widow takes his estate on the usual life-interest and if he leaves no widow the property goes to the male collaterals of the appointer if the estate consists of property over which the appointer had only a restricted power of disposal. "We see no reason for holding that the daughter of an appointed heir would be in a better position than the daughter of a natural son. Ordinarily, a daughter is excluded by near collaterals.-per Scott Smith and Fforde, J.J .(1)
The widow of an adopted son dying sonless, has a right to a life interest in the property until her death or re-marriage (2). In the case of Bhular Jots of Lahore District, it was held that the heirs of an adoptee under custom diving without issue were his natural heirs not the heirs of his adoptive father, to both property derived from his natural and adoptive fathers even where the adoptee was of another got (3).
The customary appointment of an heir in the Punjab merely creates a personal relationship between the appointer and the appointee, and unlike a person adopted in the Dattaka form of Hindu Law, a son adopted under the Customary Law is not transplanted into the family of the "adopter ." It follows, therefore, that the son of an appointed heir cannot be regarded as the grandson of the appointer; and there being no relationship between the two, neither of them can inherit the property of the other. If the appointed heir dies in the life-time of the appointer, the existence of the former's son would not debar the latter from appointing another heir, and it clear that the second appointed heir would succeed to the estate of the appointer." The conclusion arrived at was that .'the son of an appointed heir acquires no right of inheritance to the appointer i.e., in the event of the appointed heir having predeceased the appointer (4).
"It is only where the land is ancestral of the appointer and the collaterals that the estate, on the appointee dying sonless, reverts to the appointer's collaterals; for in this latter case the appointer had only a limited power of disposal over the property and his collaterals had a residuary reversionary right in it. But the rule of reversion has no application where the property was self-acquired of the appointer and his power of disposal over it was absolute" (3). In this case the land in dispute belonged to One jhanda Singh, a Kang Jot of Mauza Borewal in the Amritsar District, and on his death descended to Lachman Singh, his daughter's son, who had been duly appointed as the heir of Jhanda Singh. On the death of Laxhman Singh his daughters entered into possessive of the land. Plaintiffs, who were the collaterals cf jhanda Singh (adopter), in the next degree, sued the daughter of Lachman Singh (adoptee), alleging that the land was their ancestral property and on Lachman Singh dying sonless it reverted to them. The plaintiffs, however, failed to prove that the land was ancestral. Held, that the land being non-ancestral of the plaintiffs and Jhanda Singh (adopter), it was taken by Lachman Singh (adoptee) as his absolute property and on the latter's death, it would descend to his daughters and the plaintiffs, as tile collaterals of Jhanda Singh (adopter) had no right to claim it.
In Mst. Indar Kaur v. Hari Singh (1) one Hanuman Singh was adopted by one Kisher Singh and, after the .death of Kishen Singh's widow succeeded to his ancestral land. He himself died leaving two widow's Mst Ram Kaur and Mst. Bishen Kaur, Mst. Ind Kaur. daughter of Mst, Ram Kaur and no son. Mst. Ram Kaur made a gift of part of the land to Mst. lnd Kaur; and a collateral In the third degree of Kishen Singh brought a suit’ claiming. a declaration that the gift will not affect his reversionary rights. He was given a decree and, On second appeal, tile sole question for decision was whether, in the absence of a son, the land held by a nominated heir passed to his daughters reverted to the collaterals of the donor. It was observed-'The question therefore being whether tile transaction resembles more closely a gift or a true adoption the answer must be, I think, that, for all practical purposes, it is a gift and if a gift, the succession must be governed by the same rule as would govern a gift can see no valid reason wily this nominated heir who does not enjoy all tile privileges of son, could not, in this matter of the succession of his daughter, be more favorably treated than a true son. A resumption of what has once been gifted is repugnant to all and though such resumption does take place on the total extinction of the line of tile nominated heir, his daughter being as truly his child as his son ai1d the reversioner being no relation, she must, I think, succeed as the child of the stranger to whom a portion of the ancestral property has been given",
Again, it has been held in Mehr Das v. Munshi Ram (2) that in the case of ancestral property inherited by a person who has been appointed an heir under the Customary Law such property reverts to the heirs of tile adoptive father on the death of the appointed heir without (male) lineal descendants. Although in some respects "Chela" occupies the same position as a son, his position is not like that of an appointed heir, and all the Customary Law rules relating to the succession to the estate of an appointed heir do not apply.
The son of an appointee, whether born before or after the appointment of his father, is incompetent to contest an alienation by his father of the property received from the appointer. Property, whether ancestral or self- acquired of the appointer, received by the appointed heir, cannot be regarded as ancestral qua the latter's sons. But if it once descends to or comes into the hands of the appointee's son, then it would be ancestral qua the grandson (3).
Where by a will the testator bequeaths his property to his adopted son subject to the life-interest of his widow and the adopted son dies during the widow's life-time leaving behind him a son, a heritable vested interest is created in favour of the legatee on the testator's death and his Son is the rightful successor to the property after widow's death (4).
89 P. R. 1885- Jats. The contest was between the brother of the adopted son, and brothers of the adopter, Them former was given preference.
147 P. R. 1889- Khatris of Rawalpindi (Hindu Law). The adoptive mother succeeds in respect to adoptive father's estate in preference to natural mother.
21 P. R. 1890- Among agriculturist Brahmans of the Amritsar District, there was no well established custom under which in the event of an adopted son dying childless, the property which he has inherited from the person who appointed him passes (after the widow's life-interest has determined) to his own collateral heirs. In the absence of any general custom applicable to the case, or any special custom proved to govern it, the Hindu Law must be followed and accordingly the right of the heir of the adoptive parent would be superior to that of the natural heir of the childless adopted son.
12 P. R. 1892 (F. B.)- There is no general custom prevalent in the Punjab by which the collateral heirs in the natural family of a man who has been adopted under a customary adoption, succeed, in default of his lineal heirs, to the property which he acquired, or inherited. By virtue of his adoption. Applying the true principles of succession as laid down in 4 P. R. 1891 [F. B.], to the case of adopted sons, or donees, who have left no lineal heirs, it is clear that the estate would be treated as ascending to the person from whom the adopted son or donee derived his title; if that person left no male lineal descendants, the estate would ascend still higher in his line, until an ancestor was found, who had held the estate and had left descendants. Accordingly, the collaterals of the donor or adopter have an undoubted right to succeed in preference to the collaterals of the donee, or adopted son, who have really no right of successes at all. Distinguished in 1921, 2 Lah. 284.
72 P. R.1893- Gil Jats, Moga Tahsil. '3 The estate of a proprietor dying without male issue whose father was an adopted son, devolved upon the heirs of the adoptive father and not upon the natural heirs of the adopted son. The general presumption is against the right of the collateral heirs in the natural line to succeed to the property which the deceased and his father inherited by virtue of the adoption, which was a customary appointment of an heir common among agriculturist Jats of the Province.
25 P. R. 1901- Jats of Jullunder District. The property inherited by an adopted son by virtue of his adoption descends, in default
88 P. R. 1906 of the adoptee's lineal heirs, to the collaterals of his adoptive father. But the devolution of the self-acquired property of the adopted son is not affected by adoption and it goes to the members of his natural father' family.
58 P. L. R. 1901- A, B, C Were brothers. A and B were childless. C had a daughter, who had two sons D and E. A adopted E who died childless. Held, D succeeded E in preference to collaterals of A.
79 P. L. R. 1902- Under Hindu Law, when a person has been adopted. his heir must be sought in the adoptive family. Natural col1aterals have no right to succeed.
117 P. R.1906- 0n the death of an adopted Son or donee, without male lineal descendants, the estate held by the deceased as the adopted son or donee, would revert to the adoptive father or donor, and then descends to the male lineal descendants of the latter, if any, and if there were none such, then to the male lineal descendants of the common ancestor.
53 P. W .R. 1908- In Hindu Law under the Kritrima form, and in customary adoptions there is no change in the appointee's family. and the adoptive father's collaterals can-not succeed to acquired property left by such an adopted son.
27 P. R. 1914- The principle of reversion to the heirs of the donor or appointer is limited to the property over which he had not unrestricted power of disposition. Accordingly the collaterals of the donor or appointer had no right to succession to the property which was not ancestral in the hands of the appointed heir on the latter's death without lineal descendants.
71 P. L. R. 1915- In case of an appointee dying childless and leaving no widow, the acquired property of the appointer goes to the appointee's collaterals, but the ancestral property goes to the latter's male collaterals.
C. A. 2250 of 1916- The reversionary heirs of the adopter cannot succeed to the land of the adoptee on latter's death without descendants where the land is not ancestral qua themselves.
See also 1932, 13 Lah.589 and 1928, 111 I. C. 712 to the same effect.
ADOPTION UNDER HINDU LAW AS
MODIFIED BY CUSTOM
As has already been observed on pages 528 to 532, in the Punjab adoption under Customary Law, is different from adoption under Hindu Law in many respects. "The essence of the Hindu adoption being true sonship, all the rules regarding it are intended to give effect to this idea
The person adopted must be a mere infant; his mother must be a person whom the adopter could have married; there is a formal transfer of the patria potest as from the natural to the adoptive father; there is the same religious ceremony as at the birth of a s)n; in short, the only difference between the adopted and the natural son is the one which cannot be obliterated-the birth itself."
But in the Punjab even among the non-agricultural twice-born classes the strict Hindu Law has been modified by custom to a certain extent. For instance, in this Province adoptions of a daughter's or sister's son are common among the Jats. and this laxity has spread even to Brahmins. and to the orthodox Hindu inhabitants of towns, such as Delhi (1).
So also. in the Punjab. and especially in the old Delhi territory. The adoption of a married man. Though prohibited by strict Hindu Law. is valid, even among Brahmins. by Hindu Law as modified by custom (2).
According to the law of the Mitakshara. as recognized by the School of Benares. an orphan cannot be adopted. But amongst Hindus of the Dhusars caste (though not an agricultural class) such adoptions are valid by custom. The argument adopted by the Privy Council was’ like this: "Adoptions which would be invalid if not permitted by that 'customary law are by that customary law permitted, a~ for example. a brother can be adopted a daughter's son can be adopted, there is no limit as to the age of the person who may be adopted, a married man who has had children may be adopted, and a guardian may give a boy in adoption (3)." In 1935 57 All. 494 (P. C.), their Lordships, in upholding as valid under custom, the adoption of an orphan among Hindu Jats of Ballbgarh formerly in the Delhi District. observed that the conditions of adoption under the Mitakshara Law were completely superseded by the customary law.
Sister’s or daughter’s son.
The force of the doctrine of the strict Hindu Law prohibiting the adoption.of a daughter's or sister's son (which' doctrine is based on the theory that no one can be adopted whose mother, the adopter, could not have been legally married) has been considerably weakened by custom. which generally favours such adoptions. In Gopi Chand v. Mst. Mallan (4), a case relating to the Aroras or Lahore, it was observed that the adoption of a daughter's son propounded by the plaintiff being one which was prohibited by the personal law of the parties and opposed to the general agricultural custom of the Province. the presumption must be against entirely its validity.
These remarks, however. must. be received with caution, especially in view of the fact that in the Punjab. generally speaking, even the higher castes which follow Hindu Law would appear to be exempt from many of the restrictions which it imposes.
Among the non-agricultural tribes in the Punjab, the adoption must be of a formal. Character under the Hindu Law, and the custom of appointment of an heir does not prevail. In practice, however, the full dictates of the Mitakshara Law requisite for a valid adoption are not observed and particularly that prohibition against the adoption of a daughter's or a sister's son is not. always observed (5). Where the adoption of a daughter's son is permitted. such a son has all the rights of a Dattaka son (6).
The following judicial decisions may be studied with advantage:-
Adoption of a daughter's son held valid.
No. 1227 of 1874- Brahmans of Pehoa. Karnal District.
72 P. R. I 878- Khatris of Ferozepur District.
64 P. R. 1883- Khatris of Amritsar District.
149 P. R. 1883- Brahmans of Panjzati status in Amritsar.
162 P. R. 1883- Khatris of Jul1undur District. -
57 P. R. 1886- Khatris of Ferozepur District.
1916, 34 I. C. 478- Khatris of Lahore City.
1918. 48 I. C. 767- Kashmiri Brabmins. The adoption of a (Oudh) daughter's son is common and recognized by the community as valid.
1920,2 Lah. 69- Khatris of the town of Amritsar. Such adoption
A. I. R. 1937 Lah. 626- has the ful1 effect of a valid adoption.
1921, 3 Lah. L. J. 461- Mohyal Brahmins, Jhelum District. The adoption of a daughter's son is of course pro habited by strict Hindu Law, but custom under which the Brahmans in the Punjab made such adoption is not uncommon.
1921 2 Lah. 167- Brahmans of Amritsar District. Adoption of a daughter's son held valid.
1923, 4 Lab. 434- Rai Brahmans of Rawalpindi Di.trict.
1924, 5 Lah.134- Bhitwaria Brahmins of village Beri, Rohtak . District. Hindu Law bas been varied by custom so as to allow the adoption of a daughter'. Son.
1930 128 I. C. 52- Bunjani Brahmins, Amritsar City. Adoption of a daughter's son is valid.
1930, 133 I. C. 785- Among Joins the adoption of a daughter's son
(Al1ahabad) is not invalid.
"Among Joins adoption is not associated with any particular religious sanctity, but is a purely secular matter. It fol1ows that there can be no prohibition against adopting a daughter’s son."
1931, 13 Lab. 126- Koisths of Rohtak. Adoption of a daughter's son is valid. Where the Hindu Law is Thus varied by custom so as to al1ow the adoption of a daughter's son among the non-agricultural twice-born classes, the adoptee acquires al1 the rights of an adopted son as in Dottaka form.
See also 113 P. L. R. 1908 and 1929, 120 I. C. S in which it was laid down that under Hindu Law the adoption of a daughter's Son could not be in the Dattaka form. The correct view, however, appears to be as stated in 1931,13 Lah. 126.
1934, 153 I. C. 974 - Brahmins of Hissar District. Adoption of a ' daughter’s son is valid.
Adoption of sister's son held valid.
24 P. R. 1900- Khatris of Ambala District. Adoption of sister's son held valid.
79 P. R. 1901- Acharya Brahmins, Kangra District. See also the Comments on this case in 106 P. R. 1918.
86 P. R. 1904- Brahmins of villnge Chiragh, Delhi Province.
1910,9 I. C. 36- Non-agriculturist Khatris. Adoption of a sister's-son held valid.
16 P. L. R. 1911- Among non-agricultural Khatris, the adoption of a sister's son is not invalid, inasmuch as strict Hindu Law does not apply to them.
88 P. R. 1912- Among non-agricultural Banias, Delhi District, adoption of a sister's son is valid. "That in the south -east Punjab such adoptions are often recognized is quite certain."
Other miscellaneous cases.
1924,S Lah. 500(P. C.)- Kashmiri Brahmins. The adoption of a
Brother’s son, aged seventeen, who had then been Invested with the sacred thread, was held valid by custom applicable to the parties.
1921, 49 Cal. 120 (P. C.)- According to the law of the Mitakshara an orphan cannot be adopted, but amongst Hindus of the Dhusars caste (though not agricultural class) such adoptions are valid by custom.
1935, 57 All. 494 (P. C.)- Under the Mitakshara law the adoption of an orphan is admittedly invalid. But among Hindu Jats of Ballabhgarh (formerly in the Delhi District), the adoption of an orphan was held valid by custom. It was observed-"This makes it clear that the conditions of adoption under the Mitakshara law are completely superseded by the customary law, and there is no reason for excluding an orphan under the latter.
1920,45 Bom. 754- Among Jains in Western India, the adoption of an orphan has been held to be valid by custom.
See also 1936, 59 Mad. 1064.
Adoption under Hindu Law-"Giving and taking" essential.
"As has already been observed, in the Punjab it is not requisite for the validity of an adoption, even among parties governed by Hindu Law, that it should be accompanied by all the rites of strict Hindu Law (1). Thus it has been held that among the Aggarwal Banias of Zira, Ferozepur District, the general rules of Hindu Law as to adoptions do not apply and by custom applicable to them an unequivocal declaration by the adopting father that a boy has been adopted and the subsequent treatment of that boy as the adopted son, is sufficient to constitute a valid adoption (2).
"But according to Hindu Law the essential and operative portion of the ceremony is the giving and the 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 (1 )."
It was observed in Gopi Chand v. Mst. Malan (2), a case relating to Aroras of Lahore District-"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,"
Act of "giving and taking" is the essence of adoption under the Hindu Law and no substitute can be accepted (3). So also, though among Sudras no ceremonies are necessary for a valid adoption, still it is necessary to prove that there was a "giving and taking" of the child in adoption (4).
See also 65 P. R. 1916 and 117 P. R. 1918 to the same effect.
As remarked by Sir Meredyth Plowden in Ralla v. Budha (5)-'tile power of adoption, when validly exercised, has precisely tae same effect as regards the Warisan ek Jaddi or presumptive heirs, as a valid transfer of the adopter's land by gift to the adopted son would have; it operates in fact as transfer of his land, but a transfer taking effect after the death of the donor instead of in his life-time.' Again, it was observed by Sir Charles Roe-"I have already remarked that, speaking generally, a gift as under- stood by Customary Law is merely the means by which the tribes who do not recognized adoption eo nomine. permit under certain circumstances a sonless man to divert the succession to his estate from the natural heirs in favour of some near relative who has rendered, or is expected to render, service, and who would be adopted, if adoption 'Were recognized. It is, however, by no means infrequent to find even in tribes which recognized adoption, gifts made in ratification of an adoption usually, I fear, of a pretended one. It is indeed the most common mode of attempting to evade the Customary Law, which restricts the power of selection and insists most strongly on a public act of adoption, for the sonless man to execute a deed of gift, in which a previous adoption is falsely recited. It thus happens that in most of the cases which have come before the court the customs regulating adoption and gifts have had to be considered together . The remarks of Sir Meredyth Plowden, S. J., already quoted (See 50 P. R, 1893) show that the custom with regard to all alienations of ancestral property (except for necessity) rests on the same general principle, that the holder for the time being cannot by his own voluntary act. under whatever form he may clothe his act, whether he calls it an adoption, a gift, or a distribution, or a sale, divert the succession from his natural heirs without their consent. And just as in the case of an adoption the Customary Law insists on a definite public act of adoption in the presence of, or with full notice to. the brotherhood or at any rate the agnates interested, so also in the case of gifts it insists on a delivery of possession (1),"
"The questions of adoption and gift are in the minds of the people mixed up together. It is true that it is said that gifts must always be accompanied by possession. but this does not mean. and the courts have not interpreted it as meaning, that the donor must at once relinquish all interests in the gifted property. It is only intended that. as in adoption. there should be some definite, irrevocable act, creating a fresh interest in the estate; and possession is considered to be sufficiently given if the donee is taken by the donor to reside with him or joined with him in the management of the property, The reasons for gift and adoption are the same; the custom regarding the two are practically the same, and whenever the validity of a gift or an adoption is in question, the answer under both head should be read together. It may in fact be said that where alienation in favour of a person who is not the natural heir is allowed, the Hindu tribes call the transaction an adoption and the Mohammedan tribes call it
a gift (2),..
"In each case a deed of adoption must be construed according to its language and in the light of attendant circumstances; and no hard and fast rule can be laid down on the subject.. In some cases a deed of adoption may well be considered as a deed of gift; while in others, a gift inteuivos may not be contemplated. and the adoptive father’s intention may simply be confined to the appointment of the adopted son as his heir who would, as such heir, succeed to his property after his death. .
In other cases again, the adoptive father, while declaring that he had adopted the particular individual concerned as his son, may at the same time proceed to leave his property to him by way of bequest; and in such cases there is no reason why the deed of adoption should not be construed as one containing a testamentary disposition of property as well (3)..'
In the same case it was observed-"Generally speaking, the rule to be observed. in regard to the validity of adoption is that an adoption. Or the appointment of an heir can be questioned by the presumptive: heirs of an adopter only in cases where a. gift by the latter of the land which would go to the adopted son by virtue of his adoption can be impugned by those heirs. And it follows as a sound corollary from that rule that as a gift of non-ancestral land by a sonless proprietor cannot be questioned by his collaterals who do not trace their descent from a common ancestor who held that land, so an adoption by such proprietor of a non-heir as a son made with a view to enable the latter to succeed to such land is not liable to be contested by them."
In 1923, 4 Lah. 356, the adoption was by a written deed, and the question was, whether it could be treated as a gift where the court found that there had been no adoption in fact. It was remarked by Sir Shadi Lal, C. J.-"Now, it has been held repeatedly, vide, inter alia, 1884,11 Cal. 463 (P. C.) and 1906, 28 All. 488 (P.C.), that, where a deed contains a testamentary disposition in favour of a person believed to be the adopted son, it is a question for consideration whether on the failure of adoption the gift also fails. The court has to decide in each case, after considering the language of the document and the surrounding circumstances, whether the adoption was the reason or motive for making the gift or bequest, or whether the mention of the donee or legatee as an adopted son was merely descriptive of the person to take under the gift or bequest and he was to take the property even though his adoption may not be valid. This is the law with respect to cases where there is an express gift or bequest in favour of an alleged adopted son." 63 P. R. 1912 was distinguished in this case.
The adoption of a son or the appointment of an heir under the Punjab Customary Law is usually intended to make provision for succession to the adoptive father's property after his death, and does not operate as a gift or the property in favour of the adopted son (1).
An adoption operates as a transfer, only differing from gift In that it takes effect after the death of the donor (i. e., the appointer) instead of in his life-time (2). In Ibrahim v. Mat. Sada Bi bi (3) one Gamun (an Arain) affixed his thumb-mark to a deed which after reciting that he had made the plaintiff his appointed heir, described him as his adopted son and declared that he (plaintiff) should succeed on his death to his entire estate. The deed was neither registered nor acted upon, but mutation with possession of two-third of his self-acquired landed property having been effected after the executant's death in favour of the sons of his two brothers, the plaintiff used upon the deed, claiming that though in a previous suit his adoption had been held to be invalid by custom, the deed should have the same effect as a gift of his land by the adoptive father to an adopted son and in the alternative as a testamentary disposition. held, that, assuming that an adoption could be viewed as tantamount to a gift, the deed relied upon could not, for want of registration, be admitted in evidence to prove the gift, and that the oral evidence was equally inadmissible. Held further that the onus lay upon the plaintiff to prove that Gamun ever intended to gift the property to him individually,. i.e., irrespective of his supposed character as an adopted son, and that he had failed to discharge that onus. Held also, that, supposing that deed to be held to be a will, the plaintiff upon whom the onus lay, had failed to prove that the testator had a' 'disposing mind;' -It was remarked in this case. It is true that he land in dispute was the self-acquired property of the deceased, and it has been held in 63 P. R. 1912 that an adopted son, who has obtained possession of non- ancestral land may be allowed to retain it, even though the adoption may be invalid qua the ancestral property. It must, however, be remembered that in the present case the adopted son is not in possession of the estate and that it is he who has brought the suit for the recovery of the property from the heirs of the deceased who have been in possession of it since 1917."
If the property affected by the adoption is non-ancestral (in which no collaterals could possibly have any right of reversion), and the appointed heir has obtained possession, he cannot be turned out at the instance of the collaterals on the ground that the adoption was invalid by custom (1).
The proposition is absolutely clear that the customary appointment of an heir is for all in tents and purposes tantamount to a bequest (2).