KEHAR SINGH & ORS . versus DEWAN SINGH & ORS.

Citation: [1966] 3 S.C.R. 393 · Decided: 21-01-1966 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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KEHAR SINGH & ORS • 
v. 
DEWAN SINGH & ORS. 
January 21, 1966 
[K. SUBBA RAO, M. HIDAYATULLAH AND R.S. BACHAWAT, JJ.] 
Cus1on1-Jats of Amritsar District-Adoptio11r--Diffefence between adop-
tion as heir and formal adoption-Test of formal adoption-Severence of 
ties with natural family-Rlght of p·erson adopted to the property of co/. 
laterals of adopting family. 
The revenue authorities sanctioned mutation of the lands left by S, 
an Aulakh Jat of Tehsil Ajnala in Amritsar District of the Punjab, in 
favour of the appellants who were collaterals of S in the 8th degree. A 
suit for possession of the said lands was filed against them by the respon-
dents who claimed the lands as descendants of K. 
According to them 
K Wa5 the daughter's son of M, a collateral of S in the 5th clegrce, and 
had been formally adopted by M as his son. 
The trial court held that 
the adoption of K was the usual customary appointment of an heir and 
that by the custom Of Jats in Amritsar District 
an appointed heir was 
entitled to succeed collaterally in the family of his adoptive father anc!. 
consequently K was the preferential heir to S. 
The first appellate court 
agreed with the trial court that the adoption of K was the customary ap-
pointment of an hei"r, but rejected K's claim to be preferential heir on 
various grounds. 
The High Court in second appeal held that under the 
customary law K, as the adopted son of M was entitled to succeed collate-
rally in his adoptive father's family; on this view it restored the trial 
Court's decree. 
The appellants came to this Court on certificate. 
HELD: (i) There is a presumption that the entries in Riwaj-i-am are 
correct and if there is a conflict between Rattigan's digest and the Riwaj-i-
am, normally the Riwaj-i-am of the locality prevails. 
(ii) Under the customary law of the Jats in Amritsar District when 
the customary adoption is formal 
and the adopted son 
is completely 
transplanted in the family of his adoptive father,. he is entitled to succeed 
to the collateral relatives of the adoptive father. This finding is in har-
mony with the Riwaj-i-am of the Amritsar District, i.s supported by judicial 
deciswns, and is not in conflict with Art. 49 of Rattigan's Digest. On 
the other hand if the customarjr adoption amounts to a mere appointment 
of an heir, the appointed heir is not entitled to succeed to the coUateral 
relatives of the adoptive father. 
This finding is in harmony with Art. 49 
of the Rattigan'• Digest and the judicial decisions, and is consistent with 
the Riwaj-i-am properly interpreted in the light of the decided cases. 
[398 C, DJ 
(iii) It is a question of fact in each case whether the adoption by a 
Jat in the Amritsar District is formal or informal. The adoption is formal 
if the parties manifest a clear intention that there should be a complete 
change of the family of the adopted son, so that he ceases to be a member 
of his natural family and lose his right of collateral succession in the 
family and at the same time becomes a member of the adoplive father's 
family and acquires a right of collateral succe~ion in the family. 
The 
losse.. of the right of collateral succession in the natural family is strong 
evidence to show that the adoption is formal and effects a complete change 
394 
SUPREME COURT 
REPORTS 
[1966] 3 S.C.R. 
in the family. 
On the other hand retention of the ri$ht of collateral 
succession in his natural family indicates that the adopl!on was informal 
by way of customary appointment of an heir. 
[398 E-GJ 
(iv) In the present case the courts bad found, and the finding was 
amply supported by materials on the record, that the adoption of K was 
no more than a mere appointment of an heir by the custom of rhe Jats 
in the District of Amritsar. 
The onus to show otherwise was on the re&-
pondents. 
The fact lhat K succeeded to the lands left by his natural 
brother and by one of the collaterals of his narural family stroogly indi-
cated rhat the adoption of M did nor effect a change in his family. K's 
adoption not being a formal one, he could 
not be a preferential heir to 
S. 
[398 H; 399 DJ 
Case law referred to. 
A 
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OvII. APPELLATE JURISDICllON : Civil Appeal J-;o. 429 of c 
1963. 
Appeal from the judgment and decree dated October 6, 1958 
of the Punjab High Court in Civil Regular Second Appeal No. 
340 of 1953. 
Gopa/ Singh, for the appellants and respondent No. 11. 
D 
N. N. Keswani, for responde
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