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Bhagat Singh And Others v. Jaswant Singh .
Factual and Procedural Background
The respondent (plaintiff) sued for possession of certain plots, claiming that the land had belonged to Kartar Singh who had adopted him about two years prior to Kartar Singh’s death. The defendants (appellants) acknowledged Kartar Singh’s ownership but denied any adoption and asserted that, through collusive mutation proceedings, they had secured possession and rents from the tenants.
The Senior Sub-Judge dismissed the suit, holding that no valid adoption had taken place and that, even if it had, the adoption was contrary to custom. On first appeal the District Judge reversed this view, holding that Kartar Singh had in fact adopted and appointed the respondent as heir and, because the land was non-ancestral, Section 7 of the Punjab Custom (Power to Contest) Act, 1920 barred the defendants from contesting the appointment. The High Court of Punjab dismissed the defendants’ second appeal, observing that no specific plea had been taken that the land was ancestral or that the defendants were within five degrees of the common ancestor. The present appeal, by special leave, challenges that affirmance.
Legal Issues Presented
- Whether the appellants, who had not specifically pleaded that the land was ancestral or that they were within five degrees of the common ancestor, could contest Kartar Singh’s appointment of the respondent as heir under Section 6 of the Punjab Custom (Power to Contest) Act, 1920.
- Consequently, whether the respondent’s adoption and appointment as heir could be impugned in the absence of those pleadings.
Arguments of the Parties
Appellants' Arguments
- The statement in their written defence that the plaintiff “could not be adopted as son according to the Riwaj-i-am” should be treated as a sufficient plea under Section 6 of the 1920 Act, implying that the property was ancestral and that they were entitled to contest the adoption.
- The framing of issues by the trial court and the fact that both parties led evidence on custom and on the ancestral nature of the land show that those questions were in controversy.
- Reliance was placed on Motabhoy Mulla Essabhoy v. Mulji Haridas (1915 ILR 39 Bom 399) to argue that the court should interpret the pleading broadly or allow amendment where evidence has already been taken.
The opinion does not contain a detailed account of the respondent’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Motabhoy Mulla Essabhoy v. Mulji Haridas (1915 ILR 39 Bom 399) | Court may construe pleadings liberally or allow amendment where necessary facts are on record and evidence is led. | Distinguished: the Supreme Court held that, unlike in Motabhoy, the appellants had not pleaded the requisite facts and no amendment had been sought; therefore, the liberal approach was inapplicable. |
| Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 | No evidence can be looked at on a plea that was never raised in the pleadings. | Followed: the Court applied this doctrine to conclude that, absent a specific plea on ancestral property and degree of descent, the appellants could not rely on evidence adduced on those points. |
Court's Reasoning and Analysis
The Court analysed Section 6 of the Punjab Custom (Power to Contest) Act, 1920, which bars a person from contesting an appointment of an heir to ancestral property unless he both (i) pleads and proves that the property is ancestral and (ii) shows that he is descended in male lineal descent from the great-great-grand-father of the alienor—i.e., within five degrees.
It held that:
- The appellants’ bare assertion that adoption was contrary to custom did not amount to a plea that the land was ancestral or that they stood within the prohibited degrees.
- No issue was framed on any specific custom invalidating the adoption, and the appellants never sought to amend their pleadings despite the respondent’s objection in the District Court.
- Even though evidence on custom and the nature of the property was introduced, Rule 1 of Order 14 CPC and the Privy Council decision in Siddik Mahomed Shah bar reliance on evidence for matters not pleaded.
- Therefore, the District Judge and High Court were correct in refusing to entertain the challenge to the adoption or appointment of heir.
Holding and Implications
Appeal Dismissed with Costs.
As a direct consequence, the decree for possession in favour of the respondent stands affirmed. The decision reinforces the procedural requirement that, under Section 6 of the Punjab Custom (Power to Contest) Act, 1920, a challenger must specifically plead both the ancestral nature of the property and his relationship within five degrees before attacking an adoption or appointment of heir. No new substantive legal precedent was set, but the ruling underscores strict adherence to pleading standards in customary law disputes.
The Judgment of the Court was delivered by
Raghubar Dayal, J.— This appeal, by special leave, is by the defendants against the decree in a suit instituted by the respondent for recovery of possession over certain plots of land. The plaintiff-respondent alleged that the plots were owned and possessed by Kartar Singh who had adopted the respondent about two years before his death. The defendants, it is alleged, got mutation made over the land in suit collusively with the revenue officials and secured possession over them by successfully inducing the tenants to pay rent to them.
2. The defendants accepted the allegation that Kartar Singh owned and possessed the land in suit and further alleged:
“Kartar Singh deceased never adopted the plaintiff as his son; nor is this admitted that the plaintiff was the sister's son of Kartar Singh; nor yet was he ever taken in the lap in the presence of the Baradri; nor were any ceremonies of adoption performed; nor could the plaintiff according to the Riwaj-i-am of District Jullundur or Riwaj-i-am of Punjab State be adopted as son; and nor did Kartar Singh deceased ever treat him as his son.”
3. On these pleadings the trial court framed the following issues:
(i) Was the plaintiff validly adopted by Kartar Singh deceased and when?
(ii) Is the land in suit ancestral qua the plaintiff?
(iii) Relief?
4. The Senior Sub-Judge dismissed the suit holding that no adoption of the plaintiff had taken place and that even if it had taken place, it was opposed to the general as well as the custom of Jullundur District. He did not decide the second issue in view of his finding on the first issue.
5. On appeal, the District Judge held that the plaintiff had been adopted as a son and appointed as an heir by Kartar Singh. He did not consider it necessary to decide whether the adoption was valid, as the properties left by Kartar Singh were not alleged to be ancestral and consequently the defendants had no right to contest any alienation or any appointment of an heir in view of the provisions of Section 7 of The Punjab Custom (Power to Contest Act, 1920 (Punjab Act 2 of 1920), hereinafter called the Act, which reads:
“Notwithstanding anything to the contrary contained in Section 5 Punjab Laws Act, 1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom.”
6. He accordingly allowed the appeal and decreed the suit for possession.
7. The appellants then went in second appeal to the High Court of Punjab. The appeal was dismissed. It was observed in the judgment:
“The pleadings of the parties are so confused that it is impossible to find out that the defendants were either claiming that they were within five degrees of the common ancestor or that they were claiming that the land was ancestral, and in a case such as this where no specific plea has been taken as to the ancestral nature of the property it cannot be said that that issue arose on the pleadings.”
8. It is against this order that this appeal has been preferred by the defendants.
9. The learned counsel for the appellants has submitted that the contention of the defendants in the written statement to the effect that the plaintiff could not be adopted as son according to the Riwaj-i-am of District Jullundur or Riwaj-i-am of Punjab State, should be taken to be a plea requisite to meet the requirements of Section 6 of the Act, and especially in view of the facts that the Court framed two issues about the validity of the adoption and about the land in suit being ancestral in the presence of the plaintiff's counsel and that the parties lead evidence with respect to the custom and with respect to the land in suit being ancestral. He relies on the decision in Motabhoy Mulla Essabhoy v. Mulji Haridas (1915) ILR 39 Bom 399.
10. Section 6 of the Act reads:
“Subject to the provisions contained in Section 4 and notwithstanding anything to the contrary contained in Section 5, Punjab Laws Act, 1872, no person shall contest any alienation of ancestral immoveable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom, unless such person is descended in male lineal descent from the great-great-grand-father of the person making the alienation on appointment.”
11. It is necessary that a person objecting to the validity of the apointment of an heir to the property on the ground of custom must plead, and prove that the land in suit is ancestral and that he comes within five degrees of the common ancestor. The mere fact that the defendants contended in the written statement that the plaintiff could not be adopted according to the custom does not tantamount to making the requisite pleas and therefore the view taken by both the District Judge and the High Court cannot be said to be wrong. In fact, this view is in accordance with the provisions of Rule 1 of Order 14, CPC, and what was held by the Judicial Committee in Siddik Mahomed Shah v. Mt. Saran AIR 1930 PC 57(1).
12. It may further be observed that the appellants did not, in their written statement, state what the custom was and why the adoption of the plaintiff was against that custom. No issue was framed with respect to the specific custom which could invalidate the adoption of the plaintiff. The mere fact that the issues as framed did involve the consideration of the validity of the adoption and the ancestral nature of the land in suit will not clothe the vague allegation in the written statement with the definiteness of the requisite pleading and will not make it incumbent on the parties to lead evidence for or against the existence of a certain custom and the plaintiff's case not coming within it. It is significant that the appellants did not, even on the respondent's taking objections in the memorandum of appeal to the District Judge to the effect that “there being even no allegation in the written statement of the defendants that the suit property was ancestral qua them, and there being no finding either that the property was in fact ancestral the trial court erred in going into the question of the validity of the adoption”, apply for an amendment of the pleadings. They could have done so, and if their application had been allowed, the plaintiff would have been able to plead more precisely in reply to the defendants' contention and could have, if necessary, led further evidence in support of his case. It is true that evidence was led by the parties both about the custom and about the ancestral nature of the land in suit. But, in view of the absence of any specific issue about the custom, it is possible that adequate evidence bearing on the question might not have been led.
13. The case reported as Motabhoy Mulla Essabhoy v. Mulji Haridas (1915) ILR 39 Bom 399 is distinguishable on facts. The Judicial Committee interpreted the defendant's pleading in a form in which it could be legally raised instead of in a form in which the defendant could not have raised it. The necessary facts had been mentioned and evidence had been led with respect to them. It was in this setting that it was observed at p. 408:
“Their Lordships have felt that it would not be satisfactory to decide against the defendant on a view which might have been obviated by a mere amendment of the pleadings, and that in a case where the parties had been allowed to go to proof. They have, therefore, felt themselves entitled to consider the evidence led.”
14. The case more to the point is the Privy Council case relied on by the Courts below viz. Siddik Mahomed Shah v. Mt. Saran AIR 1930 PC 57(1) where it was held that “where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward”.
15. We therefore are of opinion that there is no force in this appeal. We accordingly dismiss the same with costs.
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