Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1668 (PNJ)

Amin Chand v. Sukhybir Singh

2008-09-26

L.N.MITTAL

body2008
Judgment 1. Learned counsel for the respondent-applicant seeks permission to withdraw the instant applications. 2. Dismissed as withdrawn. 3. Legal representatives of both the original plaintiffs since deceased are in second appeal having remained unsuccessful in both the Courts below. The dispute relates to the estate of Charhta, who was brother of lajja Ram, father of the original plaintiffs. Charhta has no biological issue of his own. Defendant-respondent Sukhbir Singh claims himself to be adopted son of Charhta. The plaintiffs, however, assailed the said adoption being contrary to custom governing the parties, who are residents of Tehsil naraingarh of District Ambala, because the said custom bars adoption by Jats of naraingarh Tehsil. Charhta also suffered a consent decree dated 23-10-1982 in favour of defendant regarding the suit land. The said decree has also been assailed in the suit being unregistered one, although relating to property worth more than Rs.100/-requiring compulsory registration. The defendant, however, staked his claim to the suit land on the basis of aforesaid decree dated 23-10-1982 as well as on the ground of being adopted son of Charhta. The alleged custom barring adoption was alleged to be not applicable in view of the provisions of the Hindu Adoptions and Maintenance Act, 1956 (in short "the Adoptions Act" ). Learned civil Judge (Junior Division), Ambala City vide judgment and decree dated 7-2-2003 dismissed the suit filed by the plaintiffs seeking possession of the suit land on the basis of having inherited the same from Charhta. First appeal preferred by the plaintiffs also stands dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 7-4-2004. Feeling aggrieved, the plaintiffs have filed the instant second appeal. 4. I have heard learned counsel for the parties and carefully examined the case file. 5. Learned counsel for the respondent contended at the outset that scope of second appeal under Sec.100 of the Code of Civil Procedure is very limited and the same can be entertained only on the ground that substantial question of law arises for determination. In support of this contention, reliance has been placed on three judgments of Honble Supreme Court in "gurdev Kaur v. Kaki, 2006 (2) RCJ 623 : AIR 2006 SC 1975, "santosh Hazari V/s. Purushottam Tiwai (Dead) by L. Rs. " 2001 (3) HCR (Civil) 243 : air 2001 SC 965 and "govindaraju V/s. Mariamman" AIR 2005 SC 1008. In support of this contention, reliance has been placed on three judgments of Honble Supreme Court in "gurdev Kaur v. Kaki, 2006 (2) RCJ 623 : AIR 2006 SC 1975, "santosh Hazari V/s. Purushottam Tiwai (Dead) by L. Rs. " 2001 (3) HCR (Civil) 243 : air 2001 SC 965 and "govindaraju V/s. Mariamman" AIR 2005 SC 1008. There is no quarrel with the legal proposition laid down in these judgments and the same is also manifest from bare reading of Section 100 of the Code of Civil Procedure. However, in the instant case, substantial question of law arises as to Whether the Adoption Act overrides the custom pleaded by the plaintiffs ? 6. Before proceeding further, it may be noticed that the defendant was adopted by way of registered adoption deed dated 13-8-1982. In view of Sec.18 of the Adoptions act, the Court has to presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. However, nothing to the contrary has been proved (except the question of custom to be adjudicated upon hereinafter ). So as a question of fact, adoption of defendant by Charhta stands proved. 7. Learned counsel for the appellants vehemently contended that as per riwazeaam Exhibit P.10, there is custom barring adoption by Jats of Tehsil naralngarh. The parties are admittedly Jats of Tehsil Naraingarh. However, both the courts below have held that in view of Sec.4 of the Adoptions Act, the aforesaid custom cannot prevail and the Act has overriding effect. Sec.4 of the Adoptions Act is reproduced hereunder : "4. Overriding effect of Act :- Save as otherwise expressly provided in this Act:- (a) any text, rule or interpretation of hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. " 8 Learned counsel for the appellants vehemently contended that in view of judgment by a Full Bench of five Honble Judges of this Court in the case of, "mihan V/s. Inder, 2008 (3) RCR (Civil) 124 : AIR 2008 P and H 200, custom would still prevail in Haryana. It was contended that position in Punjab is different. It was also contended that although the aforesaid judgment of Full Bench pertains to the Hindu Succession Act, 1956 (in short "the Succession Act"), but there is identical provision in Sec.4 of the Succession Act as in Sec.4 of the Adoptions act, but in spite thereof, custom relating to alienation has been held to prevail in haryana in spite of coming into force the succession Act. The Punjab Custom (Power to Contest) Act, 1920 (in short "the Custom act"), provides for challenging alienation of immovable property or appointment of heir governed by custom. This provision applicable to Punjab has been abrogated by amendment made in 1973, but no corresponding amendment has been made in haryana. Learned counsel for the appellants contended that position in Haryana is different from the position in Punjab irrespective of the Punjab Amending Act of 1973. Learned counsel for the appellants also contended that the judgment of Honble Supreme Court in the case of "darshan Singh v. Ram Pal Singh, 1991 (1) Recent Regular reports 167 : AIR 1991 SC 1654, also pertains to Punjab and not to Haryana. 9. On the other hand, learned counsel for the respondent relied on judgment of honble Apex Court in the case of, "kartar singh (Minor) through guardian Bachan singh V/s. Surjan Singh (dead) AIR 1974 SC 2161 and a judgment of Division Bench of this Court in the case of "harjit Singh V/s. Union of India" 1991 (1) CLJ (C. Cr. and Rev)158, wherein it was categorically laid down that after enforcement of the Adoptions Act, custom prevailing in Punjab relating to adoption has no force of law or ceased to have effect. Reference has also been made by learned counsel for the respondent to Sec.5 of the Adoptions Act, which provides that no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with provisions contained in this Chapter and any adoption made in contravention of the said provisions shall be void. Reference has also been made by learned counsel for the respondent to Sec.5 of the Adoptions Act, which provides that no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with provisions contained in this Chapter and any adoption made in contravention of the said provisions shall be void. It is contended that in view of this provision as well, any adoption by a hindu after the enforcement of the adoptions Act has to be governed by the provisions of this Act and not by any custom or other law. 10. I have carefully considered the rival contentions. The judgments in the case of mihan Singh (supra) and Darshan Singh (supra) have drawn distinction between punjab and Haryana only on the ground that by Amending Act, 1973, Punjab abolished the right to contest alienation or appointment of heir under the Customs Act. However, the Custom Act is still applicable in haryana to challenge alienation or appointment of heir. In so far as the question of adoption is concerned, the Adoptions Act would prevail because it has overriding effect in view of categoric provision of Section 4 of the Adoptions Act. Even in the case of mihan (supra), the Succession Act was held not to override custom relating to alienation. It is obviously because the Succession Act regulates succession and not alienation. Custom relating to alienation has not been abrogated by the Succession Act in any manner because the Succession Act does not make any provision regarding alienation. Consequently, custom regarding alienation would continue to prevail in spite of enforcement of the Succession Act. However, custom relating to succession has ceased to have effect after enforcement of the Succession Act. In the same manner, custom relating to adoption has ceased to have any force after the enforcement of the Adoptions act. The Custom Act does not make any provision for challenging adoption under custom. Learned counsel for the appellants referred to Sec.8 of the Custom Act, which makes provision for challenging appointment of heir governed by the custom. However, in view of provisions of the Adoptions act, appointment of heir under custom is not the same as adoption under the Adoptions Act. Under the Adoptions Act, the adopted child is completely transposed from the family of the natural birth to the adoptive family. However, in view of provisions of the Adoptions act, appointment of heir under custom is not the same as adoption under the Adoptions Act. Under the Adoptions Act, the adopted child is completely transposed from the family of the natural birth to the adoptive family. However, in case of appointment of heir under the custom, it was not so. Consequently, in matters of adoption, the provisions of the Adoptions Act shall have overriding effect and shall prevail over the custom. 11. In the aforesaid conclusion, 1 am supported by judgment of the Honble Apex court in the case of Kartar Singh (supra) as well as judgment of Division Bench of this court in the case of Harjit Singh (supra ). Both these judgments directly relate to the custom regarding adoption having been abrogated by the Adoptions Act. In view of these judgments, there is no manner of doubt that in matters of adoption, custom stands abrogated by the Adoptions Act and provision of the Adoptions Act shall have overriding effect over the custom. Learned counsel for the appellants contended that both these judgments pertain to Punjab and are, therefore, not applicable to Haryana. The contention cannot be accepted because both the judgments have pronounced the position of law in categorical terms, irrespective of its applicability to Punjab or Haryana or any other State, that the Adoptions Act shall have overriding effect over the custom. Moreover, judgment in the case of Kartar Singh (supra) is for the period prior to Amending act of 1978 enacted by Punjab to abrogate right to challenge alienation or appointment of heir under the Custom Act, and prior to the said Amending Act, there was no distinction between Punjab and Haryana in applicability of customary law, although different customs prevail in different areas even within the same State. Consequently, it cannot be said that the aforesaid judgments are not applicable to Haryana. 12. Learned counsel for the appellants also cited judgment of a single Bench of this court in the case of Singh V/s. Bidhi Chand (Major) 1997 (1) RCR (Civil) 543. However, in that case, the question related to eligibility of a boy above 15 years of age to be taken in adoption. 12. Learned counsel for the appellants also cited judgment of a single Bench of this court in the case of Singh V/s. Bidhi Chand (Major) 1997 (1) RCR (Civil) 543. However, in that case, the question related to eligibility of a boy above 15 years of age to be taken in adoption. Sec.10 (iv) of the Adoptions act specifically saves the customs which permits persons above 15 years of age being taken in adoption, although otherwise, a person above 15 years of age cannot be adopted under the Adoptions Act. The judgment in the case of Hari Singh (supra) relates to this aspect of custom which has been specifically saved by Sec.10 (iv) of the adoptions Act and therefore, this judgment has no applicability to the controversy required to be adjudicated in the instant case relating to the very power of adoption. 13. In view of the aforesaid, it is concluded that custom barring Jats of Tehsil naraingarh from making adoption, being inconsistent with provisions of the Adoptions act, cannot prevail in view of overriding effect of the Adoptions Act. Consequently, adoption of defendant by Charhta was legal and valid and in view thereof, defendant was the sole heir of Charhta, in preference to plaintiffs who are nephews of Charhta. 14. There is another aspect of the matter. Charhta even suffered decree dated 23-10-1982 relating to the suit land in favour of the defendant. Learned counsel for the appellants contended that the said decree is invalid, being unregistered. However, this contention cannot be accepted because the plaintiffs claim through Charhta who was party to the said decree. Consequently, the plaintiffs cannot challenge the said decree on the ground of non-registration. The said decree could be challenged only on the ground of fraud or misrepresentation etc. but has not been challenged on any such ground. Secondly, the rights between defendant and Charhta (through whom the plaintiffs claim) stand adjudicated by the said decree dated 23-10-1982 which is binding on the plaintiffs because they claim through charhta, who was party to the said decree. Thirdly, defendant being adopted son of charhta, there could be valid family settlement between them and for this reason as well, the decree does not require compulsory registration. Fourthly the plaintiffs have themselves alleged that possession of the defendant on the basis of decree dated 23-10-1982 is unauthorized and illegal. Thirdly, defendant being adopted son of charhta, there could be valid family settlement between them and for this reason as well, the decree does not require compulsory registration. Fourthly the plaintiffs have themselves alleged that possession of the defendant on the basis of decree dated 23-10-1982 is unauthorized and illegal. It is, thus, admitted case that defendant was in possession of the suit land on the basis of decree dated 23-10-1982. However, the said decree was not challenged till the filing of the instant suit on 5-12-1990. Charhta died on 7-8-1990 and he also never challenged the said decree during his lifetime for almost eight years. Consequently, the suit to challenge the said decree is barred by limitation. Thus, in view of decree dated 23-10-1982 as well, the plaintiffs cannot succeed. 15. For the reasons recorded herein above, I find no merit in this appeal and the same is, therefore, dismissed. Appeal dismissed.