Ethal Walters v. Ajit Datt — 1985 DIGILAW 646 (ALL)

JUDGMENT : H.N. SETH, J. 1. Controversy in this testamentary suit concerns the estate of late Smt. Maud Flora Datt wife of late Sri E.E. Datt, who died issueless and intestate at Allahabad on 5-12-1980. 2. On May 5, 1981 Smt. Ethel Walters, sister of the deceased Smt. Maud Flora Datt (hereinafter described as Maud Datt) presented a petition (Testamentary Case No. 7 of J 981) before this Court praying for the grant of Letters of Administration in respect of the estate of the deceased, specified in Annexure-1 to the petition. According to her, Smt. Maud Datt had, apart from the Petitioner, left behind three brothers, two real and two half sisters as her next of kins. She came to know that Sri Ajit Datt, son of Sri E.E. Datt's brother Archibal Datt, had, claiming himself to be the adopted son of Smt. Maud Datt and her husband E.E. Datt, filed a suit in the Court of Munslf ChaiJ, Allahabad (Suit No. 898 of 1980)(Ajit Datt v. Snail Sirdar) praying for a mandatory injunction restraining the Defendants of that suit from changing or altering the shape of one of the properties comprised in the estate of the deceased, Smt. Maud Datt. According to the Petitioner there is no provision for adoption either in the Christian Law or in the Indian Succession Act and the alleged adoption of Ajit Datt by E.E. Datt and Smt. Maud Datt is absolutely invalid, and that she being the next of the kin of the deceased, is entitled to maintain the petition for the relief claimed by her. The Petitioner also requested that notice of the petition be issued not only to the next of the kins named by her but also to four others including Sri Ajit Datt who, according to her were, in the circumstances of the case, proper parties in these proceedings. 3. Smt. Asba Sircar, described in the petition as one of the proper parties, filed a counter affidavit (paper No. A-6) accepting the claim of the Petitioner. She, however, claimed that one of the properties mentioned in Annexure-1 to the petition, namely, the Fixed Deposit Receipt No. (?) for a sum of Rs. 10,000/-, was held jointly by her and Smt. Maud Datt; the amount due under that receipt was payable to either of them or to the survivor. She, however, claimed that one of the properties mentioned in Annexure-1 to the petition, namely, the Fixed Deposit Receipt No. (?) for a sum of Rs. 10,000/-, was held jointly by her and Smt. Maud Datt; the amount due under that receipt was payable to either of them or to the survivor. According to her, said property belonged to her and could not be made the subject matter of these testamentary proceedings. 4. Sri Ajit Datt put in a caveat and also filed a counter affidavit (paper No. A-8). In that affidavit he contended that soon after his birth he was adopted by and baptised as the son of Sri E.E. Datt and Smt. Maud Datt in accordance with the custom of adoption prevailing amongst Indian Christians and in the family of late Sri E.E. Datt and Smt. Maud Datt. He contended that the said custom is not contrary to the principles of Christianity. In paragraph 11 of his objections Ajit Datt went on to assert that his grandfather late Rai Saheb Jeewan Datt owned considerable property and the family had a custom whereby succession was in accordance with the Hindu Law and daughter got no share in their father's property. His ancestors were originally Hindus residents of undivided Punjab and were governed by Mitak-sbara School of Hindu law and the law and custom both recognised adoption of male child. The family, after conversion, carried along with them their ancestral customary law in the secular aspects and the conversion to Christianity merely resulted in change in mode of worship. He, therefore, contended that in his presence, that is in the presence of the son of Smt. Maud Datt, the Petitioner who is merely her sister, is not entitled to take out the Letters of Administration in respect of the estate left by the deceased. 5. In her rejoinder affidavit (paper No. A-10) Petitioner E. Walters asserted that the law of the country does not recognise any notion of adoption amongst Christians. She denied that any such custom of adoption existed either amongst Indian Christians or in the family of late Sri E.E. Datt. 5. In her rejoinder affidavit (paper No. A-10) Petitioner E. Walters asserted that the law of the country does not recognise any notion of adoption amongst Christians. She denied that any such custom of adoption existed either amongst Indian Christians or in the family of late Sri E.E. Datt. According to her, Sri Ajit Datt was, never adopted by Sri E.E. Datt and Smt. Maud Datt and that she being one of the heirs and legal representatives of the deceased in accordance with the provisions contained in the Indian Succession Act, is entitled to take out the Letters of Administration sought for by her. The Petitioner also stated that the sum of Rs. 10,000/- under the fixed deposit receipt standing jointly in the names of Smt. Maud Datt and Asha Sircar has, as per conditions of deposit, been rightly paid over to Smt. Asha Sircar. She has thus conceded to the objection in this regard raised by Smt. Asha Sircar. 6. Dr. Smt. D.M. Khan, a sister of the Petitioner, who was arrayed as opposite party No. 1, addressed a letter (paper No. A-12) to the Deputy Registrar of the Court informing him that soon after his birth at Kamla Nehru Hospital, the son of Sri and Smt. Archibald Datt was taken in adoption by Sri and Smt. E.E. Datt as their own son in her presence and that Ajit Datt was their son for all religious and spiritual aspects as there was an hon'ble and gentlemanly agreement between Sri Archibald Datt and his wife Smt. Neera Datt on the one hand and Sri E.E. Datt and his wife Smt. Maud Datt (deceased) on the other. Thus Sri Ajit Datt was the only heir of the deceased and that she did not want to contest and enjoy the right of a claimant of movable and immovable properties left by Smt. Maud Datt. 7. As there was a contest, the proceedings in Testamentary Case No. 7 of 1981 were converted into a suit and these proceedings were re-numbered as Testamentary Suit No. 1 of 1983. The Court then, on the basis of the pleadings of the parties framed following four issues in the case: 1. Whether Sri Ajit Datt was adopted by Sri E.E. Datt under the Christian Law? 2. Whether Sri Ajit Datt subsequently renounced his alleged adoption? 3. The Court then, on the basis of the pleadings of the parties framed following four issues in the case: 1. Whether Sri Ajit Datt was adopted by Sri E.E. Datt under the Christian Law? 2. Whether Sri Ajit Datt subsequently renounced his alleged adoption? 3. Whether any person through adoption under Christian law can claim to be the heir of the deceased? 4. To what relief is the Plaintiff entitled? 8. In the instant case right to obtain Letters of Administration of the estate left by Smt. Maud Datt is governed by Section 210 of the Indian Succession Act. Inasmuch as the deceased was not survived by her husband, the case is covered by Clause (c) of Section 219 which lays down that in such oases the administration of the estate is to be committed to the person or persons who would be beneficially entitled to the estate according to the rules of distribution of an intestate's estate. The case of the Petitioner is that inasmuch as the deceased was not survived by her husband or any lineal descendant or father or mother, she being the sister of the deceased, was beneficially entitled to the estate according to the rules of distribution of intestate's estate laid down in Section 47 of the Indian Succession Act. The contention of Sri Ajit Datt, on the other hand, is that as he was the adopted son of Smt. Maud Datt, he was entitled to succeed to the estate left by her in accordance with the custom prevailing amongst the Indian Christians as also in the family to which Smt. Maud Datt belonged and that the Petitioner was not beneficially entitled to the estate left by the deceased. He further contended that having been adopted by Smt. Maud Datt as a son, he was in the position of her son and was u/s 37 of the Indian Succession Act entitled to succeed to her estate in preference to the Petitioner who was merely a sister of the deceased. 9. It will thus be seen that the crucial controversy to be resolved in this case is regarding the right of Ajit Datt to succeed to the properties left by Smt. Maud Datt. 10. 9. It will thus be seen that the crucial controversy to be resolved in this case is regarding the right of Ajit Datt to succeed to the properties left by Smt. Maud Datt. 10. Whereas according to the Petitioner succession to an Indian Christian dying intestate is governed by the provisions contained in the Indian Succession Act, the case of Ajit Datt is that in his case such succession is governed by the custom prevalent in the family to which he belonged. In support of his submission that in the instant case succession is not governed by the provisions of Indian Succession Act, learned Counsel appearing for Ajit Datt invited attention of the Court to Section 29 of the Indian Succession Act which runs thus: 29. Application of this part- 1. This part shall not apply to any intestacy occurring before the first date of January, 1866 or to the properties of any Hindu, Mohammaden, Budhist, Sikh or Jain. 2. Save as provided in Sub-section (1) or by any other law for the time being in force, the provisions of this part shall constitute the law of India in all cases of intestacy. and urged that the expression "any other law for the time being in force" used in Sub-section (2) quoted above, embraces within its ambit not only statutory law but the customary law applicable to concerned parties. Accordingly, In case the Petitioner is, as claimed by him, able to substantiate that there is a custom governing intestate succession in the family to which Sri E.E. Datt and Smt. Maud Datt belonged, succession to Smt. Maud Datt will be governed by the custom and not by the provisions contained in Indian Succession Act. The rules governing distribution of estate will have to be culled out in the light of such custom and in this regard rules for distribution of estate contained in the Indian Succession Act would not at all be relevant. 11. The rules governing distribution of estate will have to be culled out in the light of such custom and in this regard rules for distribution of estate contained in the Indian Succession Act would not at all be relevant. 11. In order to substantiate the plea that the custom for intestate succession prevailing in Sri E.E. Datt's family is to be equated with the expression " law for the time being in force " used in Section 29(2) of the Indian Succession Act and that the rule of succession contained in the Indian Succession Act stands excluded, learned Counsel appearing for Ajit Datt relied upon the provisions contained in Section 5 of the Punjab Laws Act (act 4 of 1872) and corresponding provision contained in Section 27 of the North West Province Regulation (7 of 1901) which stipulate- Questions regarding inheritance, dower, adoption, guardianship, minority, bastarday, family relations, will, legacies, partition, or any religious usage or institution, the rule of decision shall be; (a) any custom or any body or class of persons which is not contrary to justice equity and good conscience, and has not been declared to be void by any competent authority; (b) the Mohammendan law in cases where the parties are Mohammedans and the Hindu law in cases where the parties' are Hindus, except in so far as such law has not been altered or abolished by legislative enactment or is opposed to the provisions of this Act, or his been modified by any such custom as is referred to in the preceding clause of this Section. And contended that aforementioned enactment gives, subject to any subsequent legislative on the subject of inheritance, adoption, etc., legislative recognition to custom of any body or class of persons which is not contrary to justice, equity and good conscience or which has not been declared to be void by a court of law and enjoins upon the courts of law to decide the dispute arising before it in accordance with such custom. Accordingly, if Ajit Datt succeeds in establishing that the custom set up by him, it would have the force of law and succession to Smt. Maud Datt's estate would be governed by such custom and not by the provisions contained in the Indian Succession Act. 12. Accordingly, if Ajit Datt succeeds in establishing that the custom set up by him, it would have the force of law and succession to Smt. Maud Datt's estate would be governed by such custom and not by the provisions contained in the Indian Succession Act. 12. I am afraid that the reliance placed by the learned Counsel on the provisions of Section 5 of the Punjab tows Act (Act 4 of 1872) and the provisions of Section 27 of the North West Province Regulations (7 of 1901) is absolutely misplaced. These two enactments merely enjoin upon the civil courts located within the respective territories to which they apply, to decide the causes coming up before them in the manner laid down therein. These provisions do not regulate the proceedings in civil courts now lying within the territorial limits of the State of Uttar Pradesh. The corresponding provision concerning the manner in which the causes coming up before the civil courts located in the State of Uttar Pradesh is contained in Section 37 of the Bengal, Agra and Assam Civil Courts Act 1887 which runs thus: Section 37 : Certain decision to be according to personal law. (1) where in any suit or other proceeding it is necessary for a civil court to decide any question regarding succession, inheritance, marriage, or caste or any religious usage or institution, the Mobammaden Law in cases where the parties are Mohammedan, and the Hindu Law in cases where the parties are Hindu, shall form the rule of decision except in so far as such law has by legislative enactment been altered or abolished. (2) In cases not provided for by Sub-section (1) or by any other law for the time being in force, the court shall act according to justice, equity and good conscience. According to this section the civil courts governed by the Bengal, Agra and Assam Civil Courts Act, have to decide all questions concerning Indian Christians in accordance with same law which is for the time being in force and if there be no such law in existence then in accordance with the principles of justice, equity and good conscience. According to this section the civil courts governed by the Bengal, Agra and Assam Civil Courts Act, have to decide all questions concerning Indian Christians in accordance with same law which is for the time being in force and if there be no such law in existence then in accordance with the principles of justice, equity and good conscience. It has to be kept in mind that the section makes a clear distinction between the requirement to decide a cause in accordance with the law for the time being in force and that in absence of such law to decide the same in accordance with the Principles of justice, equity and good conscience. In the context principles of justice, equity and good conscience are not to be equated with the expression "laws for the time being in force. 13. It may be that the learned Counsel is right in contending that Section 5 of the Punjab Laws Act and Section 27 of the North West Province Regulations, give legislative recognition to the customs regarding adoption, inheritance, etc. prevailing in a particular class or community and that such customs may be considered to be laws in force in the area to which those enactments apply but then those enactments are not at all relevant while considering the cases arising in the area to which the Bengal, Agra and Assam Civil Courts Act applies. Section 37 of the Bengal, Agra and Assam Civil Courts act does not permit the civil courts in this State to base their decisions on the basis of any custom prevailing amongst Indian Christians except in so far as those customs may be looked into for determining the rule of justice, equity and good conscience in causes which the courts in the State are required to decide in accordance with such rule. Viewed in this light, any custom pertaining to succession, Inheritance, adoption, etc. Viewed in this light, any custom pertaining to succession, Inheritance, adoption, etc. prevailing amongst the Indian Christians in territories governed by the Bengal, Agra and Assam Civil Courts Act cannot be regarded as a law for the time being in force as contemplated by Section 29(2) of the Indian Succession Act and despite any such custom prevailing in any section of the Christian community in the Slate, the intestate succession in respect of their properties is to be governed by the provisions contained in the Indian Succession Act and for that purpose any custom or rule of justice, equity and good conscience would be Irrelevant. 14. Learned Counsel appearing for Ajit Datt placed strong reliance in the case of Nabu Jan v. Poushi Moni (1948) 54 CWN 2 DR 14, wherein learned Judges of the Calcutta High Court distinguished the decisions of various courts rendered under the Indian Succession Act, 1865 to (he effect that after enactment of that legislation Succession in respect of converts to Christian religion was governed by that Act alone and held that in the matter of succession customary law of Gharo Christians would prevail over the provisions contained in the Indian Succession Act. In this case the learned Judges of the Calcutta High Court proceeded on the assumption that with regard to succession there existed a custom amongst the Gharo Christians and non Christians alike which had the force of law. The circumstances in which such custom had been recognised as having legal force was neither adverted to nor considered by the learned Judges of the Calcutta High Court. It is not known whether the civil courts in Ghare Mills are governed by the provisions of the Bengal, Agra and Assam Civil Courts Act or by any other regulation containing provisions similar to the Punjab Laws Act (Act 4 of 1872) and North West Province Regulation (7 of 1901) giving legal recognition to such customs concerning succession, inheritance, adoption etc. in these circumstances, I am, on the basis of Nabu Jan's case (supra) unable to hold that any custom prevailing in any section of Christians would override the rule of succession laid down in Indian Succession Act, 1925. 15. in these circumstances, I am, on the basis of Nabu Jan's case (supra) unable to hold that any custom prevailing in any section of Christians would override the rule of succession laid down in Indian Succession Act, 1925. 15. In this connection my attention was also invited to a decision of the Supreme Court in the case of Anthony Swami v. N.R. Channaswami AIR 1970 SG 223 in which the court was called upon to consider the question as to whether the doctrine of pious obligation was applicable to Vannia Tamil Christians of Chittur Tehsil in Kerala, who were, in respect of succession, inheritance etc. by custom governed by Mitakshara School of Hindu Law. In this case the controversy was not as to whether succession of Vannia Tamil Christian was to be governed by the custom prevailing in such community or by the Indian Succession Act. In paragraph 6 of the judgment the learned Judge of the Supreme Court pointed out that such a practice had been recognised in a number of cases spread over a long period and that it had also received legislative recognition by Section 2(2) of the Cochin Christian Succession Act (6 of 1897) which provided that nothing contained therein was deemed to affect succession to the property of the Vannia Tamil Christian of Chittur Taluk, who followed Hindu Law. The controversy before the Court was whether doctrine of pious obligation which was claimed to be a purely religious doctrine pertaining to Hinuds would also be applicable to such Christians who were in the matter of succession and inheritance governed by the Hindu Law. In this connection the Court concluded thus: for the reason already given, we are of opinion that the doctrine of pious obligation is not merely a religious doctrine but has passed into realm of law. It is an integral part of Mitakshara school of Hindu Law wherein the sons from the very moment of their birth acquire along with their father an interest in the joint property. The doctrine is in consonance with justice, equity and good conscience, and is not opposed to any principle of Christianity. It is for this reason it follows that the High Court is right in its conclusion that the doctrine of pious obligation is applicable to the community of Tamil Vannia Christian of Chittu District. The doctrine is in consonance with justice, equity and good conscience, and is not opposed to any principle of Christianity. It is for this reason it follows that the High Court is right in its conclusion that the doctrine of pious obligation is applicable to the community of Tamil Vannia Christian of Chittu District. In Anthony Swami's case (supra) the custom regarding succession amongst Vannia Tamil Christians had been endowed with legal efficacy and as such nothing contained in that decision runs counter to the view on the subject expressed by me above. Secondly, the Supreme Court applied the doctrine of pious obligation to Vannia Tamil Christians not on the ground of custom or customary law but on the ground that such practice prevailing in the community was perfectly in accordance with the principles of justice, equity and good conscience. I have already explained that applicability of the principles of justice, equity and good conscience cannot, for purposes of Section 29 of the Indian Succession Act, 1925 be treated or regarded as a law for the time being in force. 16. In view of the aforesaid discussion, I am clearly of opinion that so far as the State of Uttar Pradesh is concerned intestate succession of Indian Christians is governed by the provisions contained in the Indian Succession Act, 1928, and any custom prevalent in the State in this regard, would for purposes of succession be irrelevant. 17. Main question, therefore, that arises for consideration in this case is whether according to the rules of Succession and distribution of property if an intestate as laid down in the Indian Succession Act, a person, who has been adopted by the deceased for being brought up as a eon, is entitled to the property of the deceased. Part IV of the Indian Succession Act deals with the subject matter of consanguinity which expression has, for the purpose of the Act, been equated with the expression Kindred and has been defined by Section 24 of the Act thus: Kindred or consanguinity is the connection or relation of person descended from the same stock or common ancestor. Such connection or relationship (Consanguinity of Kindred) is of the types namely, 1. Such connection or relationship (Consanguinity of Kindred) is of the types namely, 1. Lineal consanguinity i.e. the relationship that subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grand father, great grand father and so upwards in the direct ascending line or between a man and his son, grand son, great grand son and so downwards in direct descending line--Section 23 and (2) callateral consanguinity i.e. relationship that subsists between two persons who are descended from same stock or ancestor but neither of whom is descended in a direct line from the other--Section 27. 18. Chapter II of part of the Indian Succession Act deals with the rule of intestate succession in cases other than those of parses. Section 32 which finds place in the said chapter lays down that the property of an intestate shall devolve upon the wife or husband, or upon those who are of the kindred of the deceased in the order and according to the rules contained in the said chapter. Sections 33 - 48 of the Act lay down the rule of devolution of the property of the deceased to wife, husband and other kindreds in various contingencies stipulated therein. Section 34 of the Act provides for the contingency where the deceased dies leaving behind no widow and lays down that in such cases, property shall go to his lineal descendant. In the context, the expression 'lineal' used in section clearly means a person who is connected with the deceased by way of, lineal consanguinity as his descendant in the direct line. Now a person who has been adopted by the deceased for being brought up as his/her son is certainly not a person who is descended from such deceased. The lineal consanguinity contemplated by Section 23 of the Act is the real consanguinity and not the notional or fictional consanguinity. The adopted son continues to be the descendant in the direct line of his natural father. The lineal consanguinity contemplated by Section 23 of the Act is the real consanguinity and not the notional or fictional consanguinity. The adopted son continues to be the descendant in the direct line of his natural father. Accordingly when Section 37 of the Act provides that where the Intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children, it clearly envisages that such children, whether male or female, who are the lineal descendant of the deceased and are as such his kindred. Thus the word children in Section 37 of the Act will not cover the case of an adopted child who cannot be described as lineal descendant of the person adopting him. 19. In taking the view that adoption of a child for being brought up as a son does not bring about consanguinity or kindred of the person adopting him, I draw inspiration from the Division Bench decision of this Court in the case of Ranbir Karam Singh Vs. Jogindra Chandra Bhattacharji and Others, AIR 1940 All 134 wherein the learned Judges, after quoting the provisions of Sections 5, 23, 24, 25, 26 and 29(2) of the Indian Succession Act, observed thus: It will thus be noticed that there is absolutely no mention of adoption as creating any kind of relationship whatsoever. Learned Counsel for Ajit Datt then referred me to the provisions contained in Section 3 of the Indian Divorce Act which recognises that prohibited degree of consanguinity can be of two types. 1. natural and 2. legal. Relying upon a decision of a Full Bench of the Calcutta High Court in this case of Lopez v. Lopes 12 Cla 706, he urged that the consanguinity created by adoption is to be regarded as legal consanguinity. It may be so for purposes of the Indian Divorce Act, but then in view of the provisions of the Succession Act, as explained above, I do not think it permissible to import the concept of prohibited degree of legal consanguinity in the expression as defined in the Indian Succession Act. 20. It may be so for purposes of the Indian Divorce Act, but then in view of the provisions of the Succession Act, as explained above, I do not think it permissible to import the concept of prohibited degree of legal consanguinity in the expression as defined in the Indian Succession Act. 20. In the result, I conclude that right to succeed to the properties left by Smt. Maud Datt is governed not by the alleged custom set up by Ajit Datt but is governed by the provisions contained in the Indian Succession Act. Further under the provisions of Indian Succession Act, a child adopted by a person for being brought up as a son, does not inherit the properties left by him. 21. Even though aforementioned discussion is sufficient to dispose of the controversy involved in the suit, I would in view of the fact that this judgment is open to appeal, proceed to consider other aspects of the case, on which submissions were made by learned Counsel for the parties as well. 22. Learned Counsel appearing for Ajit Datt contended that originally the ancestors of Sri E.E. Datt were Hindus who haled from Punjab. They were in the matter of succession governed by the Mitakshara School of Hindu Law. After their conversion to Christianity, they, in the matter of succession, continued to be governed by the same rule. Accordingly after Sri E.E. Datt adopted Ajit Datt as his son, Ajit Datt become, in accordance with the rule of succession under the Mitakshara, entitled to succeed to the estate of Smt. Maud Datt, (wife of E.E. Datt). In substance the submission is that despite conversion to Christianity the family to which Sri E.E. Datt belonged continued to be, in the matter of succession, governed by the law which was applicable to it prior to its conversion. 23. So far as this submission is concerned, it stands concluded against Ajit Datt by a Division Bench decision of this Court in the case of Ranbir Karam Singh Vs. Jogindra Chandra Bhattacharji and Others, AIR 1940 All 134 wherein the Defendant claimed the right to succeed to the estate left by Mrs. Surendra Helen Karam Singh, widow of Karam Singh, as per adopted son. Jogindra Chandra Bhattacharji and Others, AIR 1940 All 134 wherein the Defendant claimed the right to succeed to the estate left by Mrs. Surendra Helen Karam Singh, widow of Karam Singh, as per adopted son. It was urged that prior to his conversion to Christianity, Karam Singh was a khatri by caste and as such was, In the matter of succession, governed by the customary law envisaging adoption as prevailing in Oujranwala district. The Defendant claimed that even after conversion to Christianity, the family of Raram Singh continued to be governed by the same custom. While repelling this submission, the learned Judges constituting the Bench relied upon the observations made by the Privy Council in the case of Kamawati v. Digbijal Singh (1922) 9 AIR PC 14 : 64 All. 525 and observed thus: But even accepting these allegations for the sake of argument as true, the question still remains is, whether it can be held that even after Mr Karam Singh was converted to Christianity he continued to be governed by the customs prevailing among the Khatris of the district Gujaraawala. It seems to us that the argument that succession to the estate of an Indian Christian can be governed by the rules applying to the community to which he belonged before his conversion to Christianity is not sound.... 24. In this view of the matter, I am of opinion that it is not open to Ajit Datt to claim that despite conversion to Christianity, the family of Sri E.E. Datt's ancestors continued to be, in the matter of adoption and succession, governed by the Hindu Law, that is, the law which prior to its conversion to Christianity was applicable to the family. 25. Learned Counsel for Ajit Datt relied upon a decision of the Privy Council in the case of Abraham v. Abraham 9 LIA which decision according to him stands approved by the Supreme Court in the case of Anthonyswamy Vs. M.R. Chinnaswamy Koundan by Lrs. and Others, AIR 1970 SC 223 and contended that in case of converts to Christianity from Hinduism it is open to such converts to choose the law by which they would, in the matter of succession, like to be governed. They can, if they like, there to the rules of succession by which they were being governed prior to their conversion. They can, if they like, there to the rules of succession by which they were being governed prior to their conversion. There was thus nothing wrong if the ancestors of E.B. Datt, despite their conversion to Christianity, chose to be governed by the rules of Mltalshara. Mr. and Mrs. E.E. Datt, therefore, were in accordance with the rules of Mitakshara competent to adopt Ajit Datt and Ajit Datt was, as their adopted son, entitled to inherit their properties. 26. The decision of the Privy Council in the case of Abraham v. Abraham (Supra) related to a period prior to enactment of Indian Succession Act, 1865 and Indian Succession Act 1925, when there was no statutory law of succession for Indian Christians. The learned Judges of the Privy Council at page 239 of the report observed thus: Such, then, being the state of the case, so far as the Hindu law is concerned, we must next consider whether there is any other law which determines the rights over the property of a Hindu becoming a convert to Christianity. The lex loci Act clearly does not apply, the parties having ceased to be Hindus in religion ; and looking to the regulations their Lordships think that so far as they prescribed that the Hindu Law shall apply to Hindus and the Mobammendan law to Mohammendans, they must be understood, to refer to Hindus and Mohammendans not by birth merely, but by religion also. They think, therefore, that this case failed to be decided according to the regulations which prescribes that decision shall be according to equity and good conscience. Applying, the, this rule to decision of the case, it seems to their Lordships that the course which appears to have been perused in India in these cases, and to have been adopted in the present case, of referring the decision to the usages of the class to which the convert may have attached himself, and of the family to which be may have belonged, has been most consonant both to equity and good conscience. The profession of Christianity releases the converts from the trammels of Hindu law, but it does not of necessity Involve any change of the right or relation of the convert in matters with which Christianity has no concern, such as his rights and interest. In and his powers over, property. The profession of Christianity releases the converts from the trammels of Hindu law, but it does not of necessity Involve any change of the right or relation of the convert in matters with which Christianity has no concern, such as his rights and interest. In and his powers over, property. The convert though not bound as to much matters either by the Hindu law or by any other positive law may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to the class which as to these matters has adopted and acted upon some of law, or by having himself observed some family usage or custom, and nothing can surely be more just than that the rights and interests in the property, and his powers over it, should be governed by the law which he has adopted, or rules which has observed. It is absolutely clear that aforementioned observations have been made by the Privy Council in the context where there was no law governing the rights over the property of a Hindu becoming a convert to Christianity and the matter bad to be decided as provided by the regulations in accordance with the principles of justice, equity and good conscience. It was in such a case that Privy Council held that nothing could be more just than that the rights and interests of a convert in his property and his powers over it should be governed by the law which he had adopted or the rules which he had observed. Certainly these observations were not intended to, on the ground of justice, equity and good conscience, over-ride statutory provisions. Inasmuch as I have already held that the succession to the property of a person whose ancestors had embraced Christianity is governed by the provisions contained in the Indian Succession Act, 1925, there is no further scope for applying the principles in Abraham's case to the facts of this case on the ground of justice, equity and good conscience, and the submission made by the learned Counsel in this regard is without merit. 27. 27. While proceeding to make his submissions on the assumption that because of the provisions contained in Section 29(2) of the Indian Succession Act, the rule of succession contained in the Act would not apply to a case where succession is governed by some custom, learned Counsel for Ajit Datt submitted that in the instant case there was a custom in the family to which Sri E.E. Datt belonged, as also amongst the Christians owing allegiance to the Church to which he belonged, enabling such person to, like Hindus, adopt sons who acquired the status of natural sons entitled to succeed to their properties. 28. In order to appreciate the submission made by the learned Counsel as also for evaluating the evidence produced on their behalf it will be pertinent to note that the practice of adoption whereunder the adopted child is to be treated on the same footing as the real child of the person adopting, has been prevalent in Hindu Society for centuries and it is recognised by Hindu Law. Whereas in a large number of countries it is of comparative recent origin, in the Muslim countries, it is totally unknown. Amongst Hindus, it is not merely ancient Hindu Law which recognises the practice of adoption but it also has received legislative recognition in Hindu Adoption and Maintenance Act, 1956. However, in this country there is no statutory law which enables the Christians to adopt children so as to give to them the status of real or natural children. The personal law applicable to Christians has been the common law followed in England where under transfer of parental rights and duties in respect of a child to another person and their assumption by such other person is unknown, although in equity it is possible for a relative or a stranger to put himself in loco parent is towards a child by undertaking the office and duties of a father to make a provision for the child so as to assume a fiduciary position in respect of relationship with the child. This neither creates legal relationship nor legal status. This neither creates legal relationship nor legal status. It may be noticed that subsequently the concept of adoption was introduced in England by the Adoption Act, 1926 which was subsequently replaced by the Adoption Act, 1958 but then in this country so far as Christians are concerned, no law has been enacted on the lines either of the Hindu Adoption and Maintenance Act or on that of the England Adoption Acts, 1926 and 1958. In the case of Ranbir Raram Singh (supra), a Division Bench of this Court pointed out that amongst Christians adoption was not a recognised institution in the sense in which it was understood and recognised amongst Hindus aid Hindu Law and observed that it must be remembered that adoption in the technical legal sense is one thing, and the bringing up of a child, even with the intention of ultimately giving one's property to that child, and loosely describing him as having been adopted, is quite another. 29. It is in the light of aforesaid observations that, I will now proceed to consider the question whether Sri Ajit Datt has been able to establish any custom prevailing either in the family to which Sri E.E. Datt belonged, countenancing adoption and like Hindus giving to the adopted child the status of a real child entitling him to succeed to the property of the persons adopting him. In support of his case, Sri Ajit Datt examined as many as six witnesses, namely, RW I Prem Hemlin, RW 2, Dr. (Mrs.) Daisy M. Khan, RW 3 Noreen Datt, DW 4 Father (Rev.) Levi D' souza. DW 5 A.C. Gilbert and DW 6 George Macdonald White. He also produced documents to show that be bad been baptised as the son of Sri E.E. Datt and Smt. Maud Datt and that he was being mentioned and treated as the son of Sri and Smt. E.E. Datt. 30. RW 1 Prem Hemlin, is the son of Smt. Maud Datt's brother. According to him Sri Ajit Datt had been taken in adoption by Smt. Maud Datt when he was about a month or two old and that he was baptised at Deoria. The witness further stated that adoption was a common feature amongst Christians and that such adoption took place in his family as well. According to him, Mrs. According to him Sri Ajit Datt had been taken in adoption by Smt. Maud Datt when he was about a month or two old and that he was baptised at Deoria. The witness further stated that adoption was a common feature amongst Christians and that such adoption took place in his family as well. According to him, Mrs. Dora Simeon (his father's sister) has adopted one George Franklin, who was latter on named as George Simeon. The sister of Dr. M. Khan had taken the daughter of his other sister Noreen Samuel in adoption and Noreen Samuel had after adoption become Noreen Seymour. He also asserted that after the death of Dr. Seymour, Noreen Seymour had inherited the property left by him. In his cross examination, the witness admitted that amongst Christians, adoption did not take place in accordance with Hindu Law and that he did not know if apart from the alleged adoption of Sri Ajit Datt, any other adoption took place in his family. However, towards the end of his evidence, he stated that there is no custom of adoption amongst Christians. 31. RW 2 Dr. (Mrs.) Daisy M. Khan is the eldest sister of Smt. Maud Datt. According to her as Smt. Maud Datt did not have any child, she and her husband E.E. Datt had taken the son of Sri Archibald Datt, brother of E.E. Datt, in adoption and that the said son was got baptised at Deoria by Sri and Smt. E.E. Datt. According to her there had been cases of adoption in the family of her parents as well as in the family of her in-laws. She also made a mention about some such cases. However, in her cross examination, she stated that she did not follow any custom prevalent amongst muslims and that her sister Mrs. Ethel Walters and Maud Datt were staunched Christians. According to her, Maud Datt and her husband also did not follow any custom prevalent amongst Hindus or Muslims. She also stated that she never saw any non-Christian custom or ritual being observed in the family of Smt. Maud Datt or her husband. The witness was unable to state that if there was any custom of adoption amongst christians. 32. RW 3 Smt. Noreen Datt is the real mother of Sri Ajit Datt. She also stated that she never saw any non-Christian custom or ritual being observed in the family of Smt. Maud Datt or her husband. The witness was unable to state that if there was any custom of adoption amongst christians. 32. RW 3 Smt. Noreen Datt is the real mother of Sri Ajit Datt. According to her when she was in the family, it was agreed upon by Smt. Maud Datt and her husband Sri E.E. Datt, who were childless that in case she bore a son, he would be brought up by Maud Datt and her husband. Immediately after Ajit was born, he was taken away by Maud Datt and her husband to their home. They got him baptised at Deoria and brought him up as their own son. She also gave instances of adoption by Christians by saying that she herself had been adopted by her uncle and auoty (Phupha and Phuphij who were issueless and that her husband's first cousin Hari Datt had adopted a child Premin Datt who was a leading Advocate at Moradabad. According to her after Ajit Datt had been adopted, her husband had purchased certain properties in the district of Nainital in her name as also in the name of her three sons, namely, Nirmal, Amar and Navin implying thereby that after adoption, Ajit Datt was not being treated as a member of her family. This witness was cross-examined with a view to show that her statement to the effect that immediately after his birth, Ajit Datt was given in adoption by her to Mr. and Mrs. E.E. Datt was not correct, but then it is not necessary for me to advert to the same at this stage. 33. DW 4 Father (Rev.) Levi D souza is the Perish Priest working in St. Joseph Cathedral, Allahabad. He was unable to say whether Hindus converted to Christianity carried their customs of adopting children after becoming Christians. He, however, asserted that during his office as Perish Preist, he had seen several cases of adoption in Christian families but then he could not say whether or not parents who adopted children were Hindu converts. He gave three instances of oases where adoption had taken place in Christian families. He, however, asserted that during his office as Perish Preist, he had seen several cases of adoption in Christian families but then he could not say whether or not parents who adopted children were Hindu converts. He gave three instances of oases where adoption had taken place in Christian families. According to him the practice followed was that after adoption of child, the adopting parents get the child baptised and that so far as he knew baptism was the only ceremony which completed adoption. The witness made the following statement: I cannot say whether there is a custom of adoption or not, but there is a practice of adoption amongst the Christians. 34. DW 5 A.C. Gilbert is Ex Member of Parliament as also Ex-Secretary and President of the Indian Christians Association. According to him there was a practice amongst childless christians couple to adopt a child and to his knowledge, about SO such adoptions had taken place. He stated that 8 or 10 days after Ajit had born, Smt. Maud Datt and Sri E.E. Datt Informed him that they had adopted him. He also proved the attestation made on the will said to have been executed by E.E. Datt wherein Ajit Datt bad been described as Sri E.E. Datt's adopted son. 35. DW 6 George Macdonald White, the Office Assistant-cum-Typist in the Boys High School, Allahabad was produced to prove the entry in the scholar Register pertaining to Ajit Kumar Bahadur Datt wherein the name of Sri E.E. Datt, 23 Albert Koad, Allahabad had been shown in the column of parent/guardian of the student. 36. On behalf of Ajit Datt, reliance was also placed on following documentary evidence: (i) Ext. Rule 1 the last will and testament of Sri E.E. Datt, dated 27th of November, 1959 describing Ajit Datt as his adopted sou. (ii) Ext. Rule 2, affidavit of Prem Hemlin (RW 2) stating that Ajit Datt had been taken in adoption by E.E. Datt and Maud Datt and that a custom prevailed amongst the Christians to adopt children who are to be treated as natural children of the adoptive parents to inherit their properties. (iii) Ext. Rule 3, a postcard dated 1-5-1961 from Norrls Hemlin to Smt. Maud Datt to show that Ajit was being treated as the son of Smt. Maud Datt. (iv) Ext. Rule 4 affidavit of Mrs. Promilla J. Malikarjun. (v) Ext. (iii) Ext. Rule 3, a postcard dated 1-5-1961 from Norrls Hemlin to Smt. Maud Datt to show that Ajit was being treated as the son of Smt. Maud Datt. (iv) Ext. Rule 4 affidavit of Mrs. Promilla J. Malikarjun. (v) Ext. Rule 5, affidavit of Manjula Redcliff, (Respondent No. 4). (vi) Ext. Rule 7, affidavit of D.J. Franklin, (Respondent No. 11), (vii) Ext. Rule 8, affidavit of Mr. Usha Simeon. (viii) Ext. Rule 9, affidavit of Dr. (Mrs.) Daisy Myrtle Khan acknowledging the claim of Ajit Datt to succeed the property of Smt. Maud Datt in the capacity of her adopted son. (ix) Ext. Rule 11, Ext. Rule 12 and Ext. Rule 13-Certificates of baptism, 23-8-1983 from St. Joseph Cathedral, Allahabad disclosing that the person baptised had been adopted by various persons. (x) Ext. Rule 14, certificate of baptism, dated 27-10-1949 showing that Ajit Kumar Bahadur Datt's parents names are Sri E.E. Datt and Smt. Maud Datt, and (xi) Ext. Rule 15, certificate from the Principal of the Boys High School showing father's name of Ajit Kumar Bahadur Datt as E.E. Datt. 37. Plaintiff Mrs. Ethel Walters examined as many as four witnesses, namely, PW 1 Mr. Ethel Walters, herself, PW 2 Rev. Dr. Chacko Joseph, PW 3 Anand Kumar Datt and PW 4 Satyapal Prabhakar. These witnesses were produced to rebut the case of Ajit Datt that he had been taken in adoption by Sri and Smt. E.E. Datt and that after adoption he had been brought up by his adoptive parents as their own son. PW 3 Anand Kumar Datt is a collateral of E.E. Datt. He also deposed that their ancestor hailed from Bengal and not from Punjab as claimed by Ajit Datt. These witnesses also refuted the claim that there was any custom of adoption amongst Christians giving to the adopted child a status of a natural child of the adoptive parents, 38. In support of the case that even after alleged adoption, Ajit Datt was not being treated as the son of Sri E.E. Datt and Smt. Maud Datt, reliance has been placed on following documents: (i) Ext. P. 1, Copy of the entry from the enrolment register of the Allahabad University showing the date of enrolment as 20-1-1967 and the name of Ajit Datt's father has been shown as Sri Archibald Datt. (ii) Ext. P. 1, Copy of the entry from the enrolment register of the Allahabad University showing the date of enrolment as 20-1-1967 and the name of Ajit Datt's father has been shown as Sri Archibald Datt. (ii) Ext. P. 4, the Invitation Issued at the time of marriage of Ajit Datt by his father-in-law Mr. and Mrs. W.C. Paul wherein the names of Ajit Datt's parents had been mentioned as Mr. and Mrs. Archibald Datt. (iii) Ext. P. 3, extract of the marriage register maintained in All Sts. Cathedral Church Allahabad, dated 4-6-1976 pertaining to the marriage of Ajit Datt and Anita Paul wherein the name of Ajit Datt's father had been shown as Archibald Datt and not as E.B. Datt. 39. On 6th of September, 1984, Sri Section Section Bhatnagar, learned Counsel appearing for Sri Ajit Datt, admitted that the name of the father of his client was, in the records of the Intermediate Education Board for Intermediate Examination as also in the record of his service in the Indian Police Service maintained by the Bihar Government, shown as Mr. Archibald Datt (see order sheet, dated 6th of September, 1984). 40. Although the Petitioners do not admit either that Sri E.E. Datt and Smt. Maud Datt had taken up the responsibility of bringing up Sri Ajit Datt or that Sri E.E. Datt and Smt. Maud Datt treated Ajit Datt as their own son, but then on the basis of the evidence produced In the case, I am inclined to accept the case of Sri Ajit Datt that inasmuch as Sri and Smt. E.E. Datt were Issueless, Sri and Smt. Archibald Datt agreed that their issue, if male, may be brought up by them as their son and that soon after his birth, care of Ajit Datt was taken over and he was being looked after by Sri E.E. Datt and Smt. Maud Datt. This conclusion is strengthened by the fact that In the baptismal certificate (Ext. R-14) and the entry made in the scholar register of the Boys High School, Allahabad (Ext. R-15) wherein the name of Ajit Datt's parents bad been shown as E.E. Datt and Maud Datt. It may be that at the time of taking care of Ajit Datt, Mr. E.E. Datt and Mrs. R-14) and the entry made in the scholar register of the Boys High School, Allahabad (Ext. R-15) wherein the name of Ajit Datt's parents bad been shown as E.E. Datt and Maud Datt. It may be that at the time of taking care of Ajit Datt, Mr. E.E. Datt and Mrs. Maud Datt intended to bring him up just like their own son, the question that shall remain for consideration is as to whether such adoption of Ajit Datt by Sri E.E. Datt and Maud Datt was an adoption in the technical sense, namely, that It gave to Ajit Datt the status and privileges of real son of Sri and Smt. E.E. Datt. 41. It goes without saying that such a status can be conferred on Sri Ajit Datt only if there be some statutory law or custom having legal force, which, in such circumstances, confers on the adopted son the privileges of a natural son. The oral evidence produced on behalf of Ajit Datt, can lead one to infer that generally there is a practice amongst issuless christians to bring up children of others as their own children, but then these witnesses do not speak about any legally recognised custom amongst christians according to which such children become entitled to the privileges of the real child of the persons adopting them. Learned Counsel appearing for Ajit Datt invited my attention to the affidavits of Prem Hemlin (RW 1)(Ext. R-2), Mrs. Promilla J. Malikarjun (Ext. R-4), Mrs. Menjula Redcliff (Ext. R-5), Mr. D.J. Franklin (Ext. R-7), Usha Simeon (Ext. R-8) and Dr. (Mrs.) Daisy Myrtle Khan (RW 2)(Ext. R-9) in which it has been stated that Ajit Datt had been adopted by Sri E.E. Datt and Smt. Maud Datt as their own son and in some of them it has also been mentioned that according to custom, the adopted son is to be treated as the real son. Some of the deponents of those affidavits are persons who are, in accordance with the provisions contained in the Succession Act, entitled to succeed to the properties of Smt. Maud Datt along with Smt. Ethel Walters and they admit that as adopted son of Maud Datt, Sri Ajit Datt is, in preference to them entitled to succeed to her properties. It is significant to note that out of deponent of aforementioned affidavits, only two of them viz. Mr. It is significant to note that out of deponent of aforementioned affidavits, only two of them viz. Mr. Prem Hemlin (RW 1) and Dr. (Mrs.) Daisy M. Khan (RW 2) have been examined as witnesses in the case. There is, as contemplated by Order 19 of the Code of Civil Procedure, no order of the Court permitting any fact in issue to be proved by the affidavit of aforementioned witnesses. In these circumstances, it is not possible to take these affidavits into consideration for any purpose whatsoever. 42. It is significant to note that two of the persons who filed such affidavits, namely, (RW 1) Prem Hemlin and (RW 2) Dr. (Mrs.) M. Khan mentioning that the adopted son becomes entitled to the privileges of natural son, did not say anything about it while giving their evidence before the Court. 43. During the course of arguments, learned Counsel appearing for Ajit Datt relied not only upon the alleged custom concerning adoption prevailing amongst Indian Christians mentioned in the affidavits of the aforementioned witnesses, but he also relied upon the custom which, according to him, prevailed amongst members owing allegiance to Katra Church as also in the family of Sri E.E. Datt. However, none of the witnesses produced on behalf of Sri Ajit Datt has mentioned anything about any such special family custom or the custom prevailing amongst Christians owing allegiance to Katra Church. 44. The oral evidence produced on behalf of Sri Ajit Datt has thus failed to establish any custom much less a custom which has received legal recognition whereunder a child adopted by a Christian for being brought up as his own son acquires the status and becomes entitled to the privileges of a natural son. 45. During the course of arguments, strong reliance was placed on behalf of Ajit Datt on the certificate of Baptism (Ext. R-14) showing that Ajit Datt had been baptised as the son of Sri E. E. Datt and Smt. Maud Datt. It was urged that inasmuch as Sri Ajit Datt had been baptised as the son of Sri and Smt. E.E. Datt, he had to be treated as their natural son. I am unable to accept this submission. R-14) showing that Ajit Datt had been baptised as the son of Sri E. E. Datt and Smt. Maud Datt. It was urged that inasmuch as Sri Ajit Datt had been baptised as the son of Sri and Smt. E.E. Datt, he had to be treated as their natural son. I am unable to accept this submission. No material has been brought 10 my notice from which it can be inferred that in the column meant fox the names of the parents in the baptismal certificate, the names of the natural parents or the person who by fiction of law or under some legally authorised custom, is to be treated as parent of the child, alone is to be entered and that the name of the person who has merely undertaken to bring up the child and has undertaken the obligation of parent-hood cannot be entered therein. In Ranbir Karam Singh's case (supra), the Court declined to draw any such inference from the certificate of baptism when it made the following observations: The arguments on behalf of the Appellant is that in the column "parents names" the entry is as follows: "Adopted by Stephen Karam Singh, Surendri Karam Singh," and it is urged that this entry must have been made on a statement by Mr. and Mrs. Karam Singh that they had adopted the boy. Although we are not satisfied that the requirements of the law as to the proof of Ex. A have been strictly complied with, we shall deal with this document on its merits. We may also accept the argument that Mr, and Mrs. Karam Singh in all likelihood told Rev. Dinanath that the child to be baptised had been "adopted'' by them. It must however be remembered that adoption in the technical legal sense is one thing, and the bringing up of a child, even with the intention of ultimately giving one's property to that child, and loosely describing him as having been adopted is quite another.... 46. Apart from it, it is admitted that at subsequent stage of his educational career as also at the time of entry into the I.P.S. Sri Ajit Datt had described himself as the son of Sri Archibald Datt i.e. the son of his natural father. Both in the invitation card (Ext. P-3) in connection with his marriage, which was issued by his father-in-law Mr. Both in the invitation card (Ext. P-3) in connection with his marriage, which was issued by his father-in-law Mr. W.C. raul and in the marriage register extract whereof has been filed as Ext. P-4, Sri Ajit Datt was described as the son of Sri Archibald Datt. I have absolutely no reason to doubt the genuineness of the said invitation and which in this regard, stands fully corroborated by the marriage register. These facts certainly militate against the case of Sri Ajit Datt that when he was adopted by Sri E.E. Datt for being brought up as his own son, be acquired the legal status of Sri E.E. Datt's natural son and they make the existence of any such custom, as claimed by Sri Ajit Datt, improbable. 47. The upshot of the aforesaid discussion is that neither is there any statutory law nor has any legally recognised custom prevailing amongst christians been established before me, which entitles a christian to adopt a child in the sense of giving to such child the privileges and status of natural child. A child who has been adopted by a christian for being brought up as his/her son does not become entitled to the privileges of a natural son, and be does not become entitled to succeed to the properties of the person adopting him. Issues No. 1, 2 and 3 framed in the suit shall stand disposed of accordingly. 48. It is not disputed that in the case Sri Ajit Datt is found not entitled to the privileges of natural son and to succeed to the properties of Smt. Maud Datt, Petitioner Smt. Ethel Walters as sister of deceased Smt. Maud Flora Datt would be entitled to the Letters of Administration claimed by her. Issue No. 4 is answered accordingly. 49. The petition, therefore, succeeds and is allowed, but the requisite orders entitling the Petitioner to the Letters of Administration prayed for by her shall be made only after she has filed the requisite court fee as also estate duty clearance certificate as required by the Rules. Parties to bear their own costs.