Nirmal Singh vs Karnail Singh

C.G. Suri, J.—The following pedigree table shall be helpful in disposing of this Regular Second Appeal filed by

Nirmal Singh defendant:

Ram Jas

Bela Mihan Singh (deceased) Bhagwan

Sadbu Ujagar

Nirmal Singh (Defendant) ? Z Y X Karnail Singh (Plaintiff)

The parties are collaterals in the same degree of Mihan Singh son of Ram Jas who died without leaving any nearer heirs like a widow or children etc. The appellant would normally have inherited a half share of the deceased�s property while Karnail Singh plaintiff respondent would have shared the other half with his real brothers thereby getting only a small fraction of that property. The normal course of devolution of this property had, however, been diverted by the adoption by Shri Mihan Singh of the plaintiff respondent and some gifts made by him in his life time. The appellant had disputed the factum and validity of the said adoption but both the Courts below have negatived that plea on the basis of the registered deed of adoption Exhibit P. 7 dated 25th May, 1942 and other evidence on record. The concurrent findings of fact of the Courts below on the point are not being challenged by the appellant in this Court. The plaintiff-respondent had on his part conceded in the lower appellate Court and then also before me that the trial Court had correctly found that the land left by Mihan Singh was not ancestral in his hands qua the parlies.

The deceased owned about ten acres of land besides a residence and household effects All these assets except for four acres of land in dispute have been inherited by the plaintiff-respondent as the adopted son of the deceased. He had been living with the deceased in the latter''s residential house eversince his adoption and had continued doing so after Mihan Singh''s death. Even according to his own witnesses, he is in possession of the residential house and movable assets of the deceased to the present day.

The mutation in respect of the four acres of land in dispute had been attested by the revenue authorities in favour of defendant-appellant on the basis of a registered gift deed Exhibit D. 1, dated 7th February, 1961. There is no dispute that this gift deed was executed by Mihan Singh deceased in the appellant''s favour. About two months earlier, the deceased had made a similar gift of all his> other land having an area of more than six acres in favour of the plaintiff respondent. The simple question for decision in this case is whether the gift of four acres of land in appellant''s favour evidenced by a registered deed amounts to a disinheritance of the plaintiff-respondent or a revocation or repudiation of the latter''s adoption. The plaintiff-respondent had filed this suit for possession of the four acres of land in dispute on the ground that the gift in appellants favour was hit by the provisions of paragraph 51 of the Rattigan''s Digest of Customary Law and was not binding on im.

While decreeing the suit, the Courts below have relied mainly on this paragraph and two rulings of this Court which will be mentioned further on in this judgment. It would be appropriate at this stage to reporduce below paragraph 51 in its proper context:

SECTION V EFFECT OF ADOPTION ON SUCCESSION

An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers.

Nor, on the other hand, does the heir acquire a right to succeed to the collateral relatives of the person who appoints him, where no formal adoption has taken place, inasmuch as the relation-ship established between him and the appointer it a purely personal one.

He cannot, however, relinquish his status.

51 Nor can he be disinherited for misconduct disobedience, or neglect to support his adopted or quasi adopted father; nor can the latter subsequently revoke or repudiate the adoption or appointment once lawfully made.

The appointed heir succeeds to all the rights and interests held or enjoyed by the appointed, and, semble, would succeed equally with a natural son subsequently born.

The simple question for decision in this case is whether a gift of a small part of his non-ancestral land by Mihan Singh in favour of the defendant-appellant who was a collateral of the same degree as the plaintiff-respondent amounted to a disinheritance of the adopted son or a revocation or repudiation of the apoption. It would also be pertinent to enquire whether the gift had been made as a sort of a punishment to the adopted son for any misconduct, disobedience or neglect on his part to support the adopting father.

The disinheritance of a heir or relation would imply some sort of complete deprivation or severance of connection between the parties concerned. The ordinary dictionary meaning of disinheriatance as given in Chambers''s Twentieth Century Dictionary is "to cut off from hereditary rights : to deprive of an inheritance". The Webster�s New International Dictionary describes the meaning of disinheritance as "to cut off from, or deprive of, an inheritance or hereditary succession ; to prevent as one''s heir from coming into possession of any property or right which, by law or custom, would devolve on him in the course of descent." The Black''s Law Dictionary describes disinheritance as ''the act by which the owner of an estate deprives a person, who would otherwise be his heir, of the right to inherit it.'' The plaintiff-respondent had been given away in gift a major portion of Mihan Singh''s land during his chief time and even after the disputed gift in favour of the appellant he had succeeded to or inherited the residential house and the movable assets. It is, therefore, obvious that there was no such complete, severance of connection or deprivation of the right to succeed to the decisions estate as to amount to a disinheritance of the plaintiff-respondent. Moreover, there is nothing on record to suggest that the gift in appellant''s favour had been made as a sort of punishment for the misconduct, disobedience or neglect on the part of the adopted son. There was no revocation or repudiation of the adoption or the writing by which it had been effected. If there had been any such disinheritance, revocation or repudiation as a sort of punishment to the adopted son then he would not have been allowed to continue living with the adopting father or to succeed to his residence and movable affects. Both before and after the gift in appellant''s favour, the respondent had been getting material benefits from his adopting father. It cannot be argued by the respondent that he would have been better off in his own family of birth if he had not been adopted. Ordinarily, he would have inherited only a small fraction of the deceased''s ancestral land. By virtue of the adoption he gets more then half of the deceased''s land and the entire residential and immovable property. Mihan Singh had full powers of making testamentary and non-testamentary dispositions of his non-ancestral or self-acquired property and the adoption had apparently acted as a curb on any such disposition on his part. The gift of a small part of the non-ancestral property in appellant''s favour was obviously not meant as a punishment of the adopted son for any misconduct etc. There has been no revocation of the adoption. The estate had actually been inherited by the plaintiff-respondent I do not see how paragraph 51 of the Rattigan''s Digest of Customary Law is at all applicable. The Courts below had then relied on the rulings in Amar Singh and another v. Bikar Singh (1957)59 PLR 146, and Bharpai v. Sudhan Singh ILR (1921) II Lah. 69. In both these cases, the impugned alienation would have completely deprived the adopted son from inheriting any property of the adopting father. These rulings have no application to the facts of the present case. The plaintiff-respondent had continued living all along with the deceased during his life time as his adopted son and has after his death succeeded to his estate. If a small part of the land was gifted to another collateral who would ordinarily have succeeded to a much larger share, were it not for the respondent''s adoption, it would not imply that there has been a complete disinheritance of the adopted son or the repudiation of the relationship.

Shri Aggarwal, the learned counsel for the appellant, relies on a Division Bench ruling in Parma Nand v. Shiv Charan Das etc., (1968)70 PLR 758 which deals with the customs of Hindu Khatris of Amritsar town. This ruling may not be strictly applicable to customary appointments of an heir in the rural areas of Punjab. It, however, lays down that even after making an adoption the person would have full powers of disposing of his self acquired or non ancestral property. In Sri Baja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards, and Venkata Kumari Mahipati Surya Rao, ILR (1899) Mad. 383 their Lordships of the Privy Council, while dealing with a case of impartible zamindari estate which descended by the rule of primogeniture to a single heir, were pleased to observe that a Hindu adopting a son does not thereby deprive himself of any power that he may have to dispose of his property by will. It was observed that there was no implied contract on the part of the adopter that in consideration of his having accepted the gift of his son by the natural father, he would not make a will of his property. This general rule of Hindu law is not shown to have been abrogated or modified by the Customary Law of the parties in such a manner that Mihan Singh could have lost his power of making testamentary or non-testamentary dispositions of his self acquired or non-ancestral property after adopting a son. The gift of a small part of his land by the deceased in favour of the appellant could have been made in recognition of the fact that the appellant would have succeeded to a half share but for the respondent''s adoption. It cannot be said that the deceased had not been fair 10 the plaintiff respondent.

I, therefore, accept the appeal and dismiss the suit filed by the plaintiff respondent with costs throughout.