9911796707
TMI Blog1974 (8) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the suit, out of which this appeal arises, questioning the adoption and claiming a half share in Maghi Singh's property. The suit was dismissed by the Trial Court but the First Appellate Court held that the ceremony of giving and taking had not taken place and allowed the appeal. In Second Appeal Justice Khanna of the Punjab High Court, as the then was, held that the giving and taking had taken place and rejected an argument that even if there was the act of giving and taking, it was not with the intent to transfer the appellant from the family of his birth to that of Maghi Singh because Maghi Singh was governed by customary law. A Division Bench of the Punjab Haryana High Court hearing the Letters Patent Appeal against this jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural family to that of Maghi Singh and that the fact that Maghi Singh was at one time governed by customary law or that the adoption was stated to have been validly made in accordance with custom would not go to show that the intention at the time of adoption was not to transplant Kartar Singh from his natural family to that of Maghi Singh because customary law also recognises formal adoption resulting in change of family. It is not as if customary law does not recognise such adoption. In Punjab before the Hindu Adoptions and maintenance Act 1956 came into force there was prevalent the customary adoption, which was custom of appointing a heir, the heir so appointed not ceasing to be member of the family of his birth and not becoming a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h operates to attach such consequences to the adoption but it is the custom governing the adoption that does so, and therefore in order to attract all such consequences it is quite enough if the adoption conforms to that custom in the matter of form etc. Such an adoption effects a complete transplantation of the adoptee from one family to the other and confers the right of collateral succession in the adoptive family and takes away the right of such succession in the natural family. In the case of such adoption the property devolving on the adopted son continues to be ancestral in his hands. 3. It would be noticed that even according to the customary law of Punjab there was special custom under which adoption attached to it all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no room for any customary adoption. Section 4 of the Act specifically provides that 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 that Act shall cease to have effect with respect to any matter for which provision is made in that Act. Therefore the question of any customary adoption, as was in force in Punjab before that Act came into force, does not any longer arise. 6. The whole error in the reasoning of the Division Bench lies in proceeding on the assumption that Maghi Singh intended merely to appoint an heir because he referred to custom. But when the document refers to Maghi Singh taking the appellant into his lap from his parent and adopting h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of actual giving and taking by the parents or guardians concerned referred to the earlier part of the clause where an adoption ceremony is gone through and the giving and taking takes place there cannot be any other intention. The parties did not intend to go through a play acting or to put up a show. They obviously intended to comply with the requirement of law that for a valid adoption there must be giving and taking. 8. There is moreover clear evidence in this case that the intention was to transfer the adopted son to the adoptive family. Nasib Chand D.W.2, said that at the time of adoption Bachan Singh and his wife were present here and they said the boy was his (Maghi Singh's) and that Maghi Singh took the son. Pritam Singh D. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
