Surjit Kaur v. Zail Singh And Others

M.R Sharma, J.:— This judgment will dispose of the appeal as also the cross-objections filed by Zail Singh respondent.

2. The property in dispute belonged to one Mehar Singh. Vide adoption deed Exhibit P1 dated February 28, 1955, he adopted Zail Singh respondent as his son. Apart from this adoption deed, there other evidence on the record showing that Zail Singh was being treated as an adopted son by the said Mehar Singh. However, on January 8, 1953, Mehar Singh gifted a part of this property in favour of his daughter Surjit Kaur appellant. On July 5, 1963, he executed a will in her favour. On October 21, 1963 Mehar Singh cancelled the adoption deed dated February 28, 1955. The respondent filed a civil suit for a declaration to the effect that the will, Exhibit, D2, executed by Mehar Singh on July 5, 1963, in favour of the appellant in respect of his property was not binding on him and did not affected his reverssionary rights. The suit was contested by the appellant and on the pleas raised by the parties, the learned trial judge framed the following issues:—

1. Whether the plaintiff was validly adopted by Mehar Singh under Hindu Law and what were the ceremonies thereof?

2. Whether Mehar Singh deceased executed a valid gift deed and a will in favour Surjit Kaur defendant?

3. Whether the plaintiff has the locus standi of challenging the gift deed and will in favour of Surjit Kaur defendant?

4. Whether the plaintiff is in possession of the disputed property as an owner for the last 15 years?

On issue No. 1 it was held that the respondent had been validly adopted by Mehar Singh. On issue No. 2 it was held that Mehar Singh deceased did execute a gift deed and a will in favour of the appellant. On issue No. 3 it was held that the respondent did not have any locus standi to challenge the gift deed but he was competent to challenge the will on the ground that it was opposed to the customary law. Issue no. 4 was not pressed by the respondent before the learned trial Judge. On these findings, he was granted a declaration that the will dated July 5, 1963, was inoperative and ineffective qua his rights.

3. Both the parties filed appeals against the judgment of the learned trial Court, which came up before the learned Additional District Judge, Ferozepur, who dismissed both of them.

4. Surjit Kaur defendant-appellant has come up in this appeal before me. Regular Second Appeal No. 1064 of 1967 filed by the plaintiff-respondent against this very judgment was dismissed by a learned Judge of this Court on October 16, 1967.

5. The only controversy which now remains to be settled is whether it is open to the plaintiff-respondent to challenge the will executed by Mehar Singh in favour of the defendant-appellant who was his daughter.

6. The learned counsel for the plaintiff-respondent has brought to my notice paragraph 51 of the Rattigan's Digest of Customary Law, which reads as under:—

“51. Adoption irrevocable:—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.”

He also relied upon two Single Bench decisions of this Court reported as Amar Singh v. Bikar Singh (1957) 59 P.L.R 146 and Mangal Singh v. Dogar Singh 1964 C.L.J 287. In the decided cases the two learned Judges of this Court relied upon the afore-monotoned paragraph in the Rattigan's Digest of Customary Law and held that it was not open to an adoptive father to disinherit his adopted son under the customary law of Punjab. Had the matter rested there, the decision of this case would not have presented any difficulty. But the Legislature has enacted the Punjab Custom (Power to Contest) Amendment Act (Punjab Act 12 of 1973) which received the assent of the Governor of Punjab on April 6, 1973. By section 3 of this Act, section 7 of the Punjab Custom (Power to Contest) Act, 1920 (hereinafter referred to as the principal Act) was amended. The amended section reads as under:—

“Notwithstanding anything to the contrary contained in section 5, Punjab Laws Act, 1872, no person shall contest any alienation of immovable property, whether ancestral or non-ancestral or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom.”

The amended section came up for consideration in a large number Page: 693of cases which are reported as Bant Singh v. Gurmeet Singh (1974) 76 P.L.R 797, Chand Singh v. Shrimati Ind Kaur (1974) 76 P.L.R 226, Jit Singh v. Karnail Singh (1975) 77 P.L.R 488 and Charan Singh v. Gehil Singh 1974 Rev. L.R 80. In all these cases it was held that an appeal was a continuation of a suit and that, after the coming into force of the aforementioned amendment, it was not open to an heir to challenge an alienation made by the holder of the property on the ground that the alienation was contrary to any principle of customary law in the State of Punjab.

7. Now the plaintiff-respondent brought this suit for the declaration that the will Exhibit D2, dated July 5, 1963, was void and ineffectual against his rights, because, under the customary law of Punjab as enunciated in paragraph 51 of the Rattigan's Digest of Customary law noted above, it was not open to an adoptive father to disinherit the adopted son. The effect of a will in respect of some property is that the-said property stands alienated after the death of the testator. By virtue of the amended section 7 of the principal Act, such an alienation cannot by challenged by an heir of the testator on the ground that the alienation is contrary to a principle of customary law. As already noticed, this amendment has been held to have retrospective effect and had to be applied even to those cases which were instituted earlier and in which appeals were pending in this Court. In view of this clear statutory provision, it is not open to me to grant the declaration which the plaintiff-respondent has asked for.

8. Mr. Sarin, the learned counsel for the plaintiff-respondent, has submitted that section 7 of the principal Act does not apply to cases where an adopted son claims the relief that his adoptive father be debarred from disinheriting him, according to him, this section applies only to alienations of property which are challenged usually on the ground that the property being ancestral the alienor could not dispose it of in the absence of any valid necessity. It is not possible for me to accept this contention in view of the clear language of the statute. The law lays down that no alienation should be allowed to be challenged on the ground that it is contrary to the pricciples of customary law. The grievance made by the plaintiff-respondent was that the alienation of property made under will Exhibit D2 dated July 5, 1963, by Mehar Singh deceased was opposed to the principles of customary law which disentitled an adoptive father to disinherit an adopted son. Whether an alienation is opposed to one principle of customary law or the other, does not make the least bit of difference as far as the right of an heir to challenge the same is concerned. Since his right has been taken away under the statute, the present appeal filed by Surjit Kaur daughter of Mehar Singh deceased has to be allowed. I order accordingly. The cross-objections filed by Zail Singh respondent are dismissed. In the circumstances, however, the parties are left to bear their own costs.

Appeal allowed.