In the Punjab adoption under Customary Law is different from adoption under Hindu law in many respects. "The latter is founded on a spiritual idea, varying from the belief that a son is necessary to save a man's soul from the "Hell called Pat," to the very natural feeling of regret that your line should become extinct; that there should be no one to represent you in the family gatherings and offer the pind. The essence of the Hindu adoption being true son ship, 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 adoptor could have married; there is a formal transfer of the patria potestas from the natural to the adoptive father; there is the same religious ceremony as at the birth of a son: in short, the only difference between the adopted and the natural son is the one which cannot be obliterated-the birth itself.
Although adoption is, speaking generally, not recognized by tribes of Mohammedan origin, but is recognized by tribes of Hindu origin, whether they have remained Hindus or become Mohammedans or Sikhs, it has, as already remarked, no connection with the adoption of the Hindu Law. No doubt in some purely Hindu tribes, it may be usual to call in the Brahmins on the occasion of an adoption as on other important occasions of domestic life, and the Brahmins may employ some fragments of Hindu ceremonial. The answer of some of the tribes that the child adopted must be under a certain age may also be founded on some vague ideas of Hindu Law. But it is probably correct to say that there is not a single tribe or section of a tribe in which any religious ceremony, or any limit as to age is really essential to the validity of an adoption. 1 am of course speaking of agricultural tribes, and not of the Hindus of towns, who may very possibly really follow the Hindu Law. The foundation of the customary adoption is not any idea of the spiritual benefits of sonship, but the practical benefit that will accrue to a sonless man from Saving some one to live with him and keep him company and help him to manage his land. In return for this benefit he offers the right of succession to his land. But the bestowal of this right necessarily involves the loss, at any rate to some of the agnates, of their own rights, and the admission of the adopted son as a member of the tribe or community. We should therefore expect to find that the Tribal Law (1) limits the persons from whom the adopted son may be taken; (2) insists on a public announcement of the fact of the adoption. This is exactly what we find laid down in the Riwaj-i-ams.
As regards the second point, we find that, whilst some of the answers describe certain ceremonies or formalities as usual, they generally add that they are not absolutely necessary. But the answers, one and all, say that there must be a public announcement of the adoption to the assembled brotherhood. No doubt, in early times, before the establishment of a regular judicial machinery, the "assembled brotherhood" acted as a Court of Justice. If the person to be adopted were not already a member of their body they would decide whether he should be admitted or not. If he were already a member, they would decide the objections of the nearer heirs whose rights were interfered with by the adoption. Now that objections to an adoption can only be decided by the Civil Courts on a suit by persons directly interested, one of the objects of the assembling of the brotherhood bas passed away; it is still usual to assemble it, and it may still exercise some influence by persuading the parties immediately concerned not to go contrary to tribal custom, or feeling, either in making or opposing an adoption. But the second object, that of giving the person whose interests are affected. due notice of the fact of the adoption, and thus enabling them to object to it either before the brotherhood or before the Courts. still remains. It may not be absolutely necessary that there should be formal calling together of the brotherhood for this purpose at a given time and place. but it is essential that there should be a definite act done by the person adopting intended to constitute the adoption finally and that this act should be proclaimed in such a way that all interested in it may know it. It follows from this that a mere "continued course of treatment", however valuable it may be .to corroborate other evidence, does not of itself either constitute or prove adoption (1).
The leading case on the subject of adoption is as reported in Raila v. Budha (2). It was observed by Sir Meredyth Plowden there in- "It is a common feature of Customary Law throughout the province that no individual, whether or not he has male issue. is under ordinary circumstances competent by his own sole act to prevent the devolution of ancestral land in accordance with the rules of inheritance, that is, upon his male descendants in the male line. If any, or failing them, upon his agnate kinsmen in order of proximity. The exercise of any power, which would affect the operation of these rules to the detriment of the natural successor to ancestral land. is liable to be controlled by them whether the act done be a partition or a gift or sale or mortgage otherwise than for necessity.
What then is the power of adoption, and does it form an exception to the general rule. which gives the warisan ek jaddi or the karabatian-that is to say the agnate kinsmen, or at least, the near agnate kinsmen-a power of control over dispositions of ancestral land made by a sonless owner to their detriment?
The power to adopt is a power in a sonless man, not merely to take a male person whether of his own genealogical family, or of another and to treat him as a son, but also to constitute an heir, in lieu of a son. that is to enable a person who is not a son to succeed to ancestral land held by the adoptor as if he were his son.
The power of adoption, when validly exercised, has precisely the same effect as regards the warisan ek jaddi or presumptive heirs, as a valid transfer of the adoptor's land by gift to the adopted son would have; it operates in fact as a transfer of his land but a transfer taking effect after the death of the donor instead of in his life-time.
The power to adopt is valued by the landholding tribes in the Punjab, as it appears, not for the sake of any supposed spiritual benefit, but on more practical grounds,' because it enables a sonless man to secure for himself a companion who shall be a fellow worker, and a support in old age, and to make provision for him in return for his services. It is to be expected that this power, as it is capable of being exercised to divert the devolution of ancestral land from its ordinary course, should be as jealously guarded, in the interest of the presumptive heirs, as other similar powers, and I think it is unquestionable that, speaking generally.it is so guarded.”
It was further remarked in Indar Singh v. Mst. Gurdevi (3)- Generally speaking, it is as true to-day as in 1893, when Sir H. M.Plowden expressed the Same view in Ralla v. Budha (50 P. R. 1893). That among agricultural tribes and according to the Riwaj-i-ams adoption is founded on no idea of spiritual benefit, which is the underlying principle In Hindu Law, but on the practIcal benefIt of companionship and assistance.”
As observed. in Rattigall's Digest of Cutomary law (l2 Edition, p. 173), according to the notion privilege amongst agriculturists adoption is in no sense connected with religion, and partakes more of the character which the .act assumed. In the late Roman Law as a simple nominis heralds institution : that is to say, Into a more or less public institution by a sonless owner of land of a person to succeed him as his heir (I). It is therefore more correct to speak of the personal relation thus formed as the" appointment of an heir" rather than as an adoption " a term which has a history of its own, and which suggests features altogether wanting in the ordinary customary appointment of an heir with which was are familiar in agricultural communities in the Punjab. We accordingly find that history here again repeats itself, and as in Rome, so in Punjab village communities, the institution of an heir is no doubt a mere substitution for adoption, the effect of which is to very the succession in the instituted heir from the death of the testator or appointer.'
The nature of customary appointment of an heir is well explained in 34 P. R. 1883 by Rattigan, J. in the following words-
I have no hesitation in saying that in the strict sense adoption is rarely, if ever, met with amongst purely agricultural tribes. The religious element, for instance, which forms the keystone of the true Aryan notion of adoption fields no equivalent expression amongst such tribes a fact which is easily explainable. In the village system in this province a common religion does not constitute the bonds of association between the various tribes, which often well within the boundaries of the village area. There is no community of worship between them, indicating either the fact or symbol of kinship, and thus when a childless proprietor takes a kinsman’s or a daughters son to live with him, with the intention of appointing him as heir, such an appointment is not ordinarily followed by the relinquishment of the natural family, as a formal initiation into that of the new family. 111 the Punjab village system community of property rather than community of religion, is the basis of association. That the importance of leaving a male heir to succeed to his estate should, however, be felt as keenly by the childless Jat as by the sonless Brahmin is only natural, but the expedient which he resorts to, in order to supply what nature has denied to him, is one that is older than the power forestation. It is not in short, by a formal affiliation of a son through the efficacy of a religious ritual, but by the .appointment of an heir who wi.1l succeed to his right. that the Jat supplies the want of a natural heir A mere personal relation is at most created. It is but a natural outcome of this that the person so appointed should not be deemed entitled to succeed to the collateral relatives of the deceased appointer. On the other hand he should not ordinarily lose his right of succession in his natural family. For the same reason there are no restrictions as to the age of the person appointed, for he does not, like a true adopted son, simulate a natural son, and lastly an appointed heir does not become in capacitated from marrying females of the appointer's family, whom, as a real or adopted son, he could not marry.
Similarly, it was observed by Rivaz, J. in Fateh Muhammad v. Mst. Jiwan (l)- "
‘All I wish to point out is that, as ..I understand the customary adoption" recognized in the Punjab, the term used is almost a misnomer, and the so. called "adoption" is nothing more than a "more appointment of an heir," within the meaning of the Full Bench ruling, even though certain simple ceremonies and formalities have taken place in making the appointment, such ceremonies and formalities being one of the customary methods of giving publicity to, or an unequivocal manifestation of the fact of appointment, and not in any way rendering the. "adoption" liable to be described a5 "formal," or other than a mere appointment of an heir. The customary or quasi-adoption is equally unconnected with the religious character recognized by the Hindu law, and is without the essential requisites of a true adoption, whether there is a mere course of treatment confirmed by a registered deed, or whether the brotherhood are, when the boy is first taken over by the appointer, assemble and feasted, and a ' public declaration made to them that the boy will succeed as heir.
" In Inam Das v. Rukan Khan (2), a case relating to Musalman Naru Rajputs of Hoshiarpur District, one S. executed and registered a deed in which he declared that A was his adopted son, and that he had, adopted him sometime previously with the usual ceremonies, and had always treated him a son. S died about a month after the execution of this deed. It was remarked-" The statement contained in the deed ejected by S that by custom and Mohammedan Law a sonless and wifeless man could not attain salvation, shows that it was made up by some person who had some vague notions regarding the connection bet- when adoption and religion, but was not aware of the fact that Muham- midans do not share true views of pious Hindus regarding the efficacy or a son to save his father's soul from perdition. The statement in the deeds are such as are usually made in deeds of adoption especially in those executed by Hindus. They clearly emanated from the brain of the writer, and there is no reason to believe that there is any truth in them."
An adoption of the nature recognized under the Hindu Law is an unknown thing among the agriculturists. An adoption among the agriculturists simply operates as an appointment of an heir (3). Where it was distinctly alleged by the plaintiffs themselves in plaint that their family was governed b agricultural custom are members of the predominant agricultural tribes of the district settled ill rural life owning extensive lands, and admittedly live on agriculture, they must be presumed to be governed by such custom. In such a case, in case of adoption, there can be no presumption that in the absence of evidence, the adoption must be considered to be One under Hindu Law (4).