As has already been noted, the institution of adoption occupies a unique place under Hindu Law. It severs the adopted son from the family of his birth, transplants him into the adoptive family and puts him on the same footing as a son born in the latter family. This is the essence of the term as understood in Hindu Law. A mere customary adoption does not involve the transplanting of the heir from one family to another. and the adoptee cannot be regarded as a formally adopted son under Hindu Law. In the south-east part of the province adoption under Hindu Law is commonly practiced. Customary adoption of an heir is almost unknown in the districts which formed part of the old Delhi territory. Where, therefore, adoption is proved to have taken place amongst Jats of the Gurgaon District, it was held that the presumption was that the adoption was a formal one (1).
In the Hissar District which is part of the old Delhi territory, an adoption under Customary Law is not the appointment of an heir as understood in the Punjab but is a full adoption having the same effect as in Hindu Law, though all the essentials for a valid adoption required in Hindu Law need not exist in the customary adoption (2).
It was observed by Jai Lal, J. in Surjan Chaudhri v. Tegh Bahadur Singh (3)-"Now it is well recognized that in the province a member of an agriculturist tribe can by custom, instead of formally adopting a son, appoint an heir to him, that such an heir does not possess the rights of unadopted son but merely succeeds to the estate of the person appointing him; he is not transplanted to the family of the appointer nor does he lose his rights in the natural family. The relationship between the appointer and the appointee is therefore of a personal character as the latter does not ordinarily succeed collaterally in the family of the appointer. See Mela Singh v. Gurdas (4). Among the non-agricultural tribes, however, the adoption must be of a formal character under the Hindu Law and the custom of appointment of an heir does not prevail. In some respects however the dictates of the Mitakshara Law requisite for a valid adoption are not observed and particularly the prohibition against the adoption of a daughter's or sister's son is not always observed.
"In the Rohtak District even among the agricultural tribes the adoption of a son is of a formal character and the institution of the customary appointment of an heir with its legal consequences as in the Central Punjab does not ordinarily exist. The son so adopted is transplanted from his natural father's family to the family of the adoptor and has an the rights of a dattaka son under the Mitakshara Law. At the same time the adoption does not necessarily take place with all the formalities laid down and the conditions imposed by the Mitakshara Law."
In Mansa v. Surra (5), a case relating to the Jats of the Rohtak District, it was held that in the Rohtak District, in common with other parts of the old Delhi territory, adoption when effected is of a formal nature and not the more customary appointment of an heir such as is usually met with in the Punjab proper and the adopted son merges in his new family. Tha same view was taken in Mst. Dhopan v. Sohan (1) and also in Kirpa v. Rali Datt (2).
A sonless proprietor of land in the central and eastern parts of the Punjab mar appoint one of his kinsmen to succeed him as his heir.
(4) Existence of the custom of adoption in the Punjab.
The practice of adoption is widely distributed among the agricultural tribes in the province, but is not universal. The onus of proving that such a power of appointment is not customary amongst Hindu Jats, or Mohammedan Jats converted from Hinduism, in the central and eastern districts of the Punjab, lies on the person alleging it (3).
As the adoption of an agnate is allowed by Hindu Law as well as by the custom prevailing generally amongst Hindus in this province, the initial onus of proving that the custom of adoption does not exist at all in the parties' tribe should be laid on the party so denying the existence (4).
But if the entry in the Riwaj-i-am is against adoption in the particular tribe and locality, there is an initial presumption that the custom of adoption does not exist, and the onus of the rebuttal would be on the party asserting the existence of the custom (5).
See also in this connection 92 P. R. 1879 (Hindu Jats of Hoshiarpur); 15 P. R. 1883 (Gariwal Jats of Ludhiana); 96 P. R. 1883 (Dudhwal Jats of Amritsar); 98 P. R. 1883 (Ghori Pathans of Sialkot); 115 P.R. 1919 (Nohal Rajputs of Tahsil Fazilka): 1923, 72 I. C.305 (Mohammedan Bhatti Rajputs of Hoshiarpur), and 124 P. R. 1886 and No. 40 P. R. 1891, to the same effect.
Under Mohammedan Law an adoption cannot be made, and even if it be made, it can carry no right of inheritance. Mohammedan Tribes. "It may be further observed that, even if an adoption by a Mohammedan was permissible by any valid custom in the Punjab, the Chief Court found that it bad not been proved that the parties to the suit (Sheikh Ansaris of Jullundur District) belonged to a family to which the Punjab agricultural or other similar restrictive customs must be presumed to apply" (6).
In a case. relating to Mohammedan Bhatti Rajputs of Dasuya Tahsil (7), it was observed art. 35 of rattigan’s digest explains the position generally as regards Mohammedan agriculturists in the Central and Eastern Punjab. It is clear that amongst the purer Mohammedan tribes, especially those residing in the North,. Western district, the influence of their religion has been more marked, but in the Central Punjab, Mohammedan agriculturists as a on hole have retained the custom of adoption. This is more especially the case with regard to Mohammedan Jats converted from Hinduism. and Sir William Rattigan definitely places the onus of disproving the existence of the custom among such Jats on the man who denies it. The position with regard to Mohammedan Rajputs is not so strongly established. but even amongst them in this area of the Province (e.g., Hoshiarpur District), the more general practice is clearly to recognize the right of adoption. Counsel urges that unless it can be shown by instances that Bhatti Rajputs have adopted the custom, the evidence of its existence among other Mohammedan Rajputs is of no value. With this contention I cannot agree for it appears to me that tile Mohammedan Rajputs of this area must be taken as a whole and it is clearly established by the many instances given by Mr. Humpphries in his Riwaj-i-am as well as by the reported cases amongst Ghorewaha and other Rajputs quoted in article 35 of Rattigan's Digest that the Custom clearly exists amongst Mohammedan Rajputs in this tract."
Amongst the purer Mohammedan tribes, especially amongst those residing in the North -Western districts of the Province, the influence of their religion, which does not recognize adoption as conferring any right of inheritance, his given rise to a disposition, which has become more marked in the Course of the more recent settlement operations, to challenge the power of a sonless proprietor to make any appointment resting the succession in a person other than the lawful heir, in whose favor, of course, no appointment is necessary (1).
Custom of adoption was recognized amongst Qureshis of District Lyallpur (2). In the Punjab the customary adoptions are not adoptions in the ordinary sense but are really appointments of heirs. No particular ceremony is necessary for an adoption and if a gift is made to such son it is valid. Even if a gift is not made he will succeed on the death of the person who appointed him as his heir (3).
The custom of adoption does not prevail among Mohammedan tribes of Hazara District (4).
Answer to Question No. 53.-
" The present replies show that all tribes are opposed to adoption in the abstract and in any case the presence of a son, grandson or great- grandson is a bar to adoption. This is never so with the dohta though the dohta himself may be adopted if there are no near collaterals. In practice there is very little difference between adoption and gift."
120 P. R. 1884- Mohammedan Bhatti Multanis of Ambala. Customary adoption was found not to exist in any form, except perhaps of a Khana-damad.
40 P. R. 1891- Mohammedan Chuhan Rajputs of Mauza Golra, Ambala Tahsil. These Rajputs recognize no custom of adoption.
* Answer to Question No. 77.-
In the Riwaj-i-am of 1865 all the tribes now consulted are recorded to have answered that the custom of adoption prevailed, with the exception of Dogars, who denied its existence. Now the Dogars admit its existence but of the other tribes a few refuse, to accept the correctness of their old answer. The main tribes that refuse to acknowledge the existence of custom of adoption are as follows :-
Tarn Tarn Tahsil-
(2) All the Gil Jats with .a few exceptions; Bhatti Rajputs of Sipariwind, Pathans of Vadala Viram.
(3) Gil Jats with the exception of those of Lashkari Nangal, Pathan Nangal Jagdeo and Abu Said, Awans, Muhammadan China Jats, Rajputs of Manj, Afghans of Lalla, Bul Jats of Gujjarpura, Bhatti Rajputs of Bohlian. Those tribes, who admit the existence of the custom, state that any sonless proprietor may adopt a son.
141 P. R. 1894 Panzati Arains of Amritsar City.
** Answer to Question Nos. 30 to 36.
"Questions 30 to 36 inclusive were formulated at last Settlement, when the present Rawalpindi District was included in the enquiries. As far as this district is concerned, the custom of adoption is practically non-existent.
The questions have therefore been dealt with collectively and the examples of adoption which have come to light have been tabulated, details being stated when ascertained. The actual practice is shown in each individual case, but these cases cannot be said to give any authority for the existence of any custom. Muhammadans, broadly speaking, do not recognize adoption while Hindus follow the ordinary rules. The latter are not sufficiently numerous in this district to justify detailed discussion under each question."
** Answer to Question No. 77.-
Any childless person may adopt a son, except that among certain Muhammadan families who follow Muhammadan Law, the custom of adopting a son does not exist."
Dera Ghazi Khan District.
* Answer to Question No. 53.-
"The custom of adoption does not exist among the Muhammadan tribes of the district, and they do not recognize it (though exceptions occur, without being governed by any rules prescribing who may and who may not be adopted). The custom is not general even among the Hindus of the district, and no one may adopt a son in the presence of his own son, grandson, or great-grandson. The presence of a daughter's son is considered to be a bar in Rajanpur but not in Saghar and Dera. Jampur Tahsil does not recognize any adoption.
Dera Ismail Khan District.
"Adoption is not recognized as an established custom by any of the Muhammadan tribes of the District and the onus of proving that a right to Inheritance as against agnates could be based on adoption would be on him who alleged it" (1).
79 P. R. 1895- Akhund Sheikhs (Sayyads) of Dera Ismail Khan District do not recognize custom of adoption.
** Answer to Question No. 65.-
"If there are male lineal descendants, there can be no adoption. The presence of a daughter's son is no bar to an adoption being made.
The following tribes say they have no custom of adoption:-
Chishtis, Pathans, Dogars, Sayyads (except in Moga), Rajputs of Fazilka and Muktsar and Bhatti, Tur and Joya Rajputs in Ferozepur, and also those other than Waraich in Moga, Muhammadan Jats in Muktsar and Fazilka, Wattus and Bodlas. In the 11 Bhaike villages of Nathana, the Siddhus say they have no custom of adoption, while the Mahtams and Gujjars of Ferozepur, Arains of Moga and Bagri Jats state that no cases are known, and the Moghals content themselves with saying that there is no general custom.
Note.-Adoption seems to be distinctly rare among all tribes in the Muktsar and Fazilka Tahsils and also among the Jata of the Nathana ilaqa".
102 P. R. 1884- Sayyads of Ferozepur District. Adoption is recognized.
3 P. R. 1901- Dhawan Khatris of Ferozepur. Adoption recognized.
102 P. R. 1913 P. C.- Aggarwal Banias of Zira. Adoption recognized.
71 P, R. 1908- Kilchi Moghals of Mudki in Ferozepur District. Custom of adoption is not recognized.
115 P. R. 1919- Hindu Mohal Rajputs of Fazilka Tahsil. Adoption not recognized.
* Answer to Question No. 61.- -
"A boy under five years of' age is taken into the lap above that age is adopted. Tile latter is more resorted to though Chattas (Tahsil Wazlra- bad). Jat Dhillon. Chahal and Dhotar tribes (Tahsil GujranWala) and all tribes (T lhsils Hafizabad Khangah Dogras and Snarakpur), save Khatris. Aroras. Hindu Jat Bawre,' Hanjra and Arains (Tahsil Sharakpur). Assert that the Custom of adoption and taking into the lap is unknown among them.”
*. Answer to Question No. 91.-
(a) There is no custom of adoption among all Musalman tribes of all three tahsils of the District.
(b) Among Hindus a man if his male issue is not able to perform the ful1eral or other religious ceremonies or account of .leaving his own religion, he may adopt a son though Barita of Surkpur says there is no custom among the Minhas Rajputs.
Note.-Even among the Muhammadan cases of adoption occur but the mutation is sanctioned by consent. If the heirs object, the Custom is as above, but really a Custom to the contrary is gradually growing up.
Custom of adoption was found to exist among-
24 P. R. 1879- Varaich Jats of Gujrat District
109 P. R. 1885- Rathar Kashmiris of a polak in absence of malo heirs. Custom of adoption was found not to exist among-
15 P. R. 1880- Varaich Jats of mauza Shadiwal.
8 P. R. 1891- Mohammadan Kathana Gujars of Khatian Tahsil.
35 P. R. 1896- Moh1mmadan Khokhars of Gujrat District.
85 P. R. 1804- The reason why the system of adoption is not recognised in the Gujrat District is that there the institution of khana-damadi generally prevails.
See also 81 P. R. 1892.79 P. R.. 1893, 102 P. R. 1893. 140 P. R.1893, .104 P.R. 189.1 wherein it is held that there is no custom of adoption or appointment of an heir among the Mohammedan tribes of the Gujrat District.
*** Answer to Question No.1, Section II-A.-
"None having male lineal descendants can adopt. A daughter's Son is no bar.
The following tribes state that the custom of adoption does not exist among them:
Pathankot.- Labanas, Sainis, Muhammadan Rajputs, Gujars, Sayyads, Hindus and Muhammadan Jats.
Shakargarh.- Muhammadan Rajputs, Arains, Labanas and Mallahs.
Batala .- Sayyads.
Gurdaspur.- Harnis, Gujars, Mallahs, Hindu and Muhammadan Rajputs, Pathans, Moghals, Sayyads, Lohar Tarkhani, and Kakkezais.
The Brahmans of the Pathankot Tahsil also deny the existence of the custom, but they add that if an adoption is ever made, it should be made with the consent of the immediate heirs.
The following tribes, while admitting that the custom at present exists, wish to give up for the future:
Shakargarh.- Hindu and Muhammadan Jats, Katal and Lalotra gots of Hindu Rajputs.
The Hindu Rajputs of the Pathankot Tahsil state that the custom should be abolished, and in case this be not possible the consent of the immediate reversionary heirs should be made essential.
A. I. R. 1934 Lah. 830- Sainis of village Sharif Chak, Pathankot
=155 I. C. l020 Tahsil. The custom of adoption held did not exist in 1928. Where the adoption takes place in 1928 the entries in the Riwaj-i-ams in 1913 and not those in Riwaj-i-ams of 1865 and 1893 must govern the case.
*Answer to Question No. I-Part II-Section II.-
"If a man have a son, or a son's son or a son's son's son he cannot adopt. A daughter's son is no bar to the right of adoption. (All tribes which have the custom of adoption.)
Note.- The following tribes do not seem to have the custom of. adoption Beloch, Sayyad, Sheikh, Mughal, Pathan, Musalman Gaurwa, Fakir.
"Adoption is unknown among the Muhammadan population of the district. Two or three cases have occurred lately among the Turnis of the Haripur plain: but they are quite exceptional, and stand by themselves. Adoptions occasionally take place among the Hindus " (1).
**Answer to Question No. 73-
"A man who has no male lineal descendants can adopt; but if he has such descendant, he cannot. The presence of a daughter's son or lower descendant is no bar."
*Answer to Question No. 61.-
"Rajputs of Tahsil Garhshankar, Gujjars of Tahsil Hoshiarpur and Garhshankar, pathans, Dogars, Sayyads and Sheikhs state that among them there is no custom authorizing adoption. Among other tribes generally a man can only adopt if he has no lineal male descendants, but, the presence or a daughter's son is no bar to an adoption. Mahtons follow the general rule, but do not look on the custom with favour ."
Remarks.-1. Adoption here means the customary appointment of an heir' as opposed to a formal adoption by a Hindu according to the formalities prescribed in the Dharamshastar. The effects of the latter form of adoption are quite different from those of the former and too must not be confused.
2. The answers to the remaining questions on the subject of adoption only concern those tribes among whom the custom exists.
3. As many of the illustrations concern more than one question they have mostly been given together here and in subsequent questions references to the relevant illustrations will be given.
4. The denial by Rajputs of the Garhshankar Tahsil and by Sheikh as to the custom of adoption is not borne out by the exceptions quoted.
70 P. R. 1878- Muhammadans of Mauza Tanda, Tahsil Dasuya. Custom of adoption is recognized. .
138 P. R. I894- Hindu Rajputs of Tahsil Una. Custom of adoption recognized.
72 I. C. 305- Muhammadan Bhatti Rajputs; adoption of brother's son held valid.
I. L. R. 5 Lah. 409- Hindu Rajputs of Salohan got of Mauza Saloh in Una Tahsil. Custom of adoption found to exist.
105 P. R. 1891- Muhammadan Gujjars of Hoshiarpur District. No custom of adoption prevails among them.
13 P. R. 1894 - Hindu Ladu Rajputs of Tahsil Una do not recognize custom of adoption.
A. I. R. 1949 E. P. 156- Dadwal Rajputs of Hoshiarpur District. Custom of adoption is recognized.
* Answer to Question No. 85.-
All Muhammadans.-The custom of adoption or appointment of a heir does not exist.
All Hindus.-Adoption is recognized. It is generally written, other wise it is proclaimed before the brotherhood find some ceremonies not adoption are performed. Some Hindu tribes from Tahsils jhang and Shorkot assert that the custom of adoption does not exist among them.
The adopted son has the same rights upon his adoptive father as the male lineal issue, and be cannot get his share from the property of his natural father; but one who has been appointed only heir to the property. has a right to get his share from the property of his Natural father as well. An adopted Son is bound to perform religious ceremonies which a natural son would have. An appointed heir has no such obligations."
A. I. R. 1927 Lah. 49- Sayads of Jhang district; no custom of
= 225 I. C. 349. adoption or appointment of heir exists.
* Answer to Question No. 74.-
"All Musalman tribes There is no custom relating to adoption.
Note.-In some cases the Courts have upheld adoptions though cases said to have occurred seem mostly to be really of gift, not of adoption. The Chakwal tribes assert that there have been cases in the past, but there should be no more in future, and that there is no special custom.
Adoption is not much practiced and very few instances can be given: they say the Shastras are followed In the matter. Detailed customs so far as known are stated in the vernacular records."
109 P. R. 1881.- Muhammadans, "Mahr caste, Chakwal Tahsil. Adoption is recognized.
C. A. 213 of 1906- Mughals of Pi1Jd Dadan Khan Tahsil. Adoption recognized.
70 P. R. 1901- Kathana Gujjars, Jhelum District. Custom of adoption i& not recognized.
* Answer to Question No. 61.-
"No one having sons or grandsons or great-grandsons can adopt. The presence of a daughter's son is no bar to adoption.
The following tribes say that custom of adoption does not exist among them:-
Phillaur- Muhammadan Rajputs, Awans and Arains; Jullundur-Muhammadan Rajputs and Lodbi Pathans ;
Nawanshahr- Hindu Rajputs ; and
Nakodar Tahsil- Gujjars, Dogars, Sayyads and Pathana. "
Custom of adoption was recognized in the following cases :-"..
58 P. R. 1872- All Rajputs and especially Mahtams.
108 P. R. 1879- Jats of Dadwar got.
71 P. R. 1880 Ghorewaha Rajputs of Jullundur District
173 P.R. 1883
Custom of adoption was not recognized in the following cases :-
126-P. R. 1912- Sheikh Ansaris of jullunder District; affirming on [P. C.] appeal 1 P.R. [907.
* Answer to Question No 66.- .
"The Brahmins of Palampur Tahsil, Bhojkis of Dehra Tahsil, Jats saini, Ghirths, Bhojkis and Gosainso.f Kangra Tahsil, and Jats of Nurpur. Tehsils state that among them there is no custom authorizing adoption. Among other tribes generally a man can only adopt if he hasno male lineal descendants, but the presence of a daughter's son is no bar to an adoption."
85 P. R. 1888 Agriculturist Brahmins of Kangra District. Custom
78 P. L. R: 1912 jot adoption recognized.
**Answer to Question No. 39.-
The Rajputs of Panipat town cannot adopt a stranger or a daughter’s son but can adopt either an only son or anyone of several brothers. The adoptee must be of a generation younger than the adoptor and generally, but not essentially, 'preference is .given to a near .relative. An oral adoption is valid, but there is a desire to Insist on a written document.
Jats cannot adopt an only son of a stranger in the presence of relatives. Anyone of several possible brothers may be adopted hut not a daughter’s son. A near relative can claim to be adopted in preference to a distant one. Arains have no custom of adoption~ Brahmins can adopt a daughter's son, Rajputs can adopt an only son; but with these exceptions all tribes follow the custom of the Jats."
99 P. R. 1880- Pathans of Mauza NagaI, Tahsil Kaithal. Adoption not recognized.
**** Answer to Question No. 78.-
"Any proprietor who has no male lineal descendant may adopt.
Note.-In 1868 all the tribes are recorded to have admitted adoption. In 1892 the Dogars denied the existence of the custom. but they have now reverted to their previous answer."
5 P. R. 1879- Muhammadan Lohars of Lahore District. Custom of adoption so as to be entitled to succeed to the adoptor not recognized.