(33) Acquiescence in adoption-principle of
estoppel.
The doctrine of estopped by conduct
applies to cases of invalid adoption. The objecting party may be estopped from
disputing the adoption where he had himself not only acquiesced in it, but had
encouraged it and concurred in it at the time it took place, or had, by
treating the adopted son as a member of the family, induced him to abandon the
right in his natural family which he might otherwise have claimed.
One 'B' died in October 1900,
leaving behind him an uncle aged 34, two minor cousins, and three sisters. The
uncle took possession of the estate left by the deceased and managed it. On
25th July 1901 an agreement was executed by the uncle and the mothers of the
two minor cousins, appointing one 'D' the brother-in-law of 'B', as an
arbitrator for adopting One of tile cousins named Bhagat Ram, aged 14 years,
whom, according to the agreement, the deceased had, during his life-time,
nominated to be appointed as his adopted son. This clause was subsequently
added on the margin of the agreement at the uncle's request and was attested by
him. The award was given by the arbitrator on 27th July. It contained that
according to the desire expressed by the deceased during his life-time his
cousin Bhagat Ram should be made his adopted son and provisions for charitable
funds and for marriages of minor sisters of the deceased and maintenance of the
uncle and others, as required by the reference, were reserved. Thereupon the
uncle executed a deed of release whereby he and the other reversionary heirs
acknowledged Bhagat Ram as adopted son of ‘B’, and agreed to abide by the
settlement made by the arbitrator which document was registered with the award
on 30th July. Immediately after an agreement was executed by tile mother of the
adopted son giving her son in adoption, and a power of attorney appointing the
arbitrator as a general agent for man- aging his business. On 31st July the
uncle handed over the estate and books of the deceased of which he had hitherto
held possession as a manager and heir to the arbitrator. On 26th July 1904, the
uncle sued for his one-third share on the allegation that he was induced to
execute the several documents described above in consequence of the fraud and
undue influence of the arbitrator.
As a fact, there was no proof to substantiate either of the allegation of
misrepresentation, fraud or undue influence, but the court decreed the claim on
the ground that the transaction. Was not an equitable one, the adoption being
invalid, and the plaintiff sustained damage in consequence there of.
Held, that the relative
circumstances of the parties and the voluntary and deliberate actions of the
plaintiff throughout the whole transaction negative the slightest Chance of any
false inducement, representation or un due influence, and under no
circumstances could he now recede from the position deliberately adopted by him
in the matter, and that he was estopped from questioning the validity of the
adoption which he himself had encouraged and concurred in (1).
Similarly, in Moman v. Mst. Dhanni
(2) it was held that the defendant was estopped from attacking the validity of
the adoption in question in as much as his grand-father was a party to the
compromise under which the adoption was made and was also present .and
consenting when the ceremonies were performed and owing to this compromise he
had received a substantial benefit which the defendant was not enjoying in his
turn.
G, a sonless Jot proprietor of
Jullundur District, executed a registered wilt in 1900 bequeathing all his
property to W, his daughter's son, whom he described as his adopted son, and in
1907 he had half of his land mutated by way of gift in W's favour. On G's death
in 1912 the other. half of the property was mutated in favour of W, whereupon
the collaterals of G brought a suit for a declaration in the life-time of the
widows of G contesting alienation in favour of W. It was held that the
plaintiff's conduct as regards payment of Neondra to G on the betrothal
ceremonies of W, al1d their admission that W was the adopted son, when a
question of succession to the Lambardari appointment arose, justified the
inference that the plaintiffs acquiesced in the adoption of W by G and that the
plaintiffs were now estopped from contesting the validity of the adoption (3).
Where reversioners about to
institute suit contesting adoption were compensated and withdrew claim, giving
agreement to that effect, held acquiescence where consent given by mother of
minors, minors were bound (4).
Where reversioners of a certain
deceased related to him in eighth and more degrees, sued for possession of his
property against a person alleging to be adopted, as a daughter's son, by the
deceased, held, that the acquiescence by a sonless near reversioner (brother of
the deceased) and his consent to the alienation did not bind the next
reversioners (5).
Mere fact of cultivating portion of
ancestral land under the adopted son, or exchanging it, does not amount to
acquiescence on the part of the collateral contesting the adoption (6).
(34)
Adoption cannot be revoked.
According to a well-settled
principle of Hindu Law, where an adoption is made by a member of a joint family
governed by the Mitakshara Law, the adopted son becomes a member of the
co-parcenary from the moment or his adoption, and the adoptive father has no
power either by deed or will to interfere with the rights of survivorship of
the adopted son in the co-parcenary property. This rule is, of course,
restricted to cases of ancestral property. A father cannot defeat the rights of
survivorship of an adopted son, just as he cannot by deed or will defeat the
rights of survivorship of an adopted son (1).
The same principle applies in the
Punjab to formal or full adoptions of the Hindu Law (as contrasted with the
mere customary appointment of an heir), and when, as is often the case in this
Province, the. Adoption of a daughter's son is valid under the Hindu Law, as
varied by custom, the adoptee acquires all the rights of an adopted son in the
Dattaka form (2).
As regards appointment of an heir
under the Customary Law the following cases may be studied with advantage:- '
15 P. R. I877- Khatris of Sirsa. Adoption cannot
.be revoked under
17 P. R. 1878-
Hindu Law, but proof of custom is admissible.
98 P.
R. 1882- MuhammadanJats, Mauza
Bhalopur, Tahsil Samrala Ludhiana District. Adoption is irrevocable. '
170 P. R. 1882 - A deed of adoption is irrevocable.
34 P.
R. 1883 [P.B.]- Garewal Jats of Ludhiana
District. Adoption cannot be revoked.
98 P.
R. 1884- Badhal Jats of
Ludhiana District. -Adoption cannot be revoked.
9 P.
R. 1895- Hindu Jats of
Ludhiana District. The fact that the defendant changed his mind sometime after
the execution of the deed and sought to repudiate it could not abrogate a
relation once effectually established in the manner prescribed by law or
custom.
143
P. R. 1894- Muhammadan Man Jats
of Tahsil Nakodar, Jullundur District. Adoption cannot be revoked, even on
ground of disobedience, nor can the adopter deny validity.
P. L.
R. 1900, P. 215- Daresh Khel Afghans,
Bannu. Without deciding if there be a power to adopt, a suit to cancel adoption
on ground of disagreement should be dismissed.
74 P.
R. 1911- Among Hindu Jains the
result of an adoption is to make the adopted son a co-partner with the adoptive
father in the joint property, and the latter is incompetent to bequeath or
devise any part of the property in presence of the adopted son.
44 P.
R. 1913- Goraia Jats,
Gujranwala District. Adoption cannot be revoked.
123 P. R. 1916- Adoption is irrevocable under Hindu
Law.
35. An adoptee cannot relinquish his status in Hindu Law.
In 17 P.R. 1878 the parties were
Khatris of Sirsa, Hissar District. It was held that there was no suggestion
that any special custom existed whereby an adopted son could abandon his
status. And even in the case of a customary appointment as heir, the presumption
is altogether in favour of the appointment being absolute and irrevocable,
which it would require cogent evidence to rebut.
See also 1 P. L. R. 1906 to the same
effect.
Double adoption is not generally
recognized in the Punjab.
18 P.
R. 1879- Kang Jats of Tahsil
Nakodar, Jullundur District. Double adoption not recognized.
85 P.
R. 1881- Gujjars of Gujrat
District. Two persons cannot be appointed as successors.
172 P. R. 1882- No custom of double adoption is
known.
64 P.
R. 1883- Kapur Khatris,
Amritsar District. Double adoption is not recognized.
152
P. R. 1884- Muhammadan Ghorewaha
Rajputs, Tahsil Nawanshahr, Jullundur District. Double adoption does not exist.
34 P.
R. l89l- Chima Jats of
Gujranwala District, adoption of three step-sons unlikely.
95 P.
R.189l- Jats of Tahsil
Sampla,Rohtak District. No custom exists whereby two persons may be appointed
as heirs.
96 P.
R. 1 893- Jaj Jats of Tahsil
Garhshankar. Adoption of three persons as heirs not permitted.
46 P.
R. 19l2- Hindu Law. Adoption
of second son in life of first invalid.
57 P. L.R. 1915- Maheshris of Delhi.
9 P. R. lR80- Bhular Jats, Lahore District.
71 P.
R. l895- Moghals of Patti,
Tahsil Kasur. Four daughter appointed heirs.
(37) Effect of charge of religion.
A Ghumman jat of the Sialkot
District can adopt his daughter’s son
according to Riwaj-i-am, but a nephew has a prior right. Where, however, the
nephew had become a convert to MuhanWnadanism, the Sikh brotherhood could not
be expected to admit the pervert's claim to adoption and, under the
circumstances, the onus lay upon him to prove that was entitled to be adopted in preference to a daughter's son, and
that his existence rendered the adoption of a daughter's son invalid (1).
(38) Right of
prostitutes to adopt.
95
P. R. 1884- Kanchanis of
Delhi. Female can adopt female, but she gets no right of inheritance thereby.
(39) Right of ascetic to adopt.
15 P.
R. 1874- A man who has become
an Udasi faqir is incapable of adopting even if he renounces his religious
order and returns to the world.
(40) Right of daughter to adopt.
1 P.
R. 1907- Held valid among
Ansari Sheikhs of Basti Damandan, Jullundur District.
(41) Effect of adoption by widow.
In Kapur Chand v. Narinjan Lal (2)
where the parties were Jain Saraogis of the Karnal District and plaintiff,
alleging himself to be adopted to one M. L. by his widow: sued for rendition of
accounts, and dissolution of partnership existing between himself and his
father and the defendants, and for a decree for half the assets of the firm,
moveable and immoveable, held, that in as much as a valid adoption by a widow
to her husband has the effect of placing him in the position which he would
have occupied had he been adopted by that husband or been posthumous child of
that husband, the adopted son must be received into the joint family
partnership on adoption, and is entitled to all rights of an ordinary member of
that partnership which his continued to exist in spite of the death of his
father; held further, that an adoption by the widow, if valid, divests any
estate which is not superior to that of the adopted son; and that plaintiff on
adoption became immediately a member of the family partnership.'
CHAPTER IV
ALIENATION
Synopsis
SECTION I
Introduction
(1) Power of
disposal of property under the customary Law-agnatic theory.
SECTION II
Statutory Law
SECTION 111
Wills
(2) A 'voluntary
transfer' and a 'transfer for necessity.'
(3) Transfer inter vivos and by will.
(4) Existence of the custom of making wills.
SECTION IV
Alienation
(5) Joint and separate property.
SECTION V
Ancestral Property
(7) Meaning of 'ancestral property.'
(8) Presumptions from entries in settlement records.
(9) Land situate in
village founded and owned by parties' common ancestor-when presumed to be
ancestral.
(10) Desertion by
ancestors and resumption by dependants-property not ancestral.
(11) Land inherited
through a female-ancestral property.
(12) Property obtained by adoption.
(14) Ancestral and
non-ancestral land coming together at the time of consolidation.
(15) Common ancestor
must own land and not simply possess it.
(16) Ancestral property-miscellaneous cases.
(19) Immovable property-does it mean land only or other
immovables also?
SECTION VI
Gifts
(21)
Unequal distribution among sons.
(22)
Gifts in lieu of services.
(23) Gifts in favour of a daughter or daughter's son.
(24)
Gift to a resident son-in-law (Khana-damad).
(25) Gift to a
son-in-law who is not a resident son-in-law.
(26) Gifts to daughters
whose husbands are Khana-damads.
(27) Gifts to sisters and sisters' sons.
(28)
Gift to one heir to the exclusion of other heirs.
Gifts to
strangers, wives and other cognates religious purposes.
(30) Delivery of
possession whether necessary to validate gift.
(31) Doctrine of reversion of gift to donor's family
(32) Revocability of gifts.
SECTION VII
Other
Alienations
(34) Burden of proof-alienation of ancestral
property.
(35) Male proprietors
cannot alienate without necessity-judicial decisions.
(36) Power of male
proprietors to alienate without necessity-judicial decisions.
(37) Onus of proof-additional authorities.
(38) Shifting or discharge of initial onus.
(39) How the initial onus can be discharged.
(40) What is necessity?
(41) Value of "recital of fact of
necessity" in deeds.
(42) Necessity-burden of proof.
(43) Payment of debts, whether a legal
necessity?
(44) Payment of
"just debt" constitutes necessity-principles down.
(46) Payment of
interest on "just debt" is for necessity.
(47) Payment of decretal
debts-"antecedent debts."
(48)
Antecedent debts.
(50) Outside alienee
need not prove that the antecedent debts were contracted for a necessary
purpose.
(52) Sale of ancestral
property by minor son's guardian to payoff father's debts.
(53) Money borrowed for trading purposes whether a valid necessity.
(54) Money. required for
"household expenses" whether a legal necessity.
(55)
To defray the reasonable marriage expenses of himself or
of daughters or sons and other relations.
(56)
Sale of ancestral land to purchase. land elsewhere-acts
of good management-sale is for necessity.
(57) Funds raised for
religious purposes-whether to legal necessity.
(58)
Other miscellaneous cases of necessity.
SECTION VIII
Alienation by Females
(62) Nature of widow's life-estate.
(64) Widow's power to
make a gift of her deceased husband's estate.
(65) Power of widow
to alienate for legal necessity.
(66)
Absolute gift in favour of widow-power of alienation.
(67)
Alienee's duty to inquire.
(68)
Power of other females to
alienate.
(69)
Power of widow and other females with a life-interest to
alienate-judicial decisions.
SECTION IX
Right of Reversioners to Object
(71)
Persons entitled to object.
(72)
Collaterals general rule of computing degrees of
relationship
(73)
The Punjab Custom (Power to Contest) Act, 1920.
(74) The right of
remoter collaterals to contest alienation by a male in presence of nearer ones.
(75) Next reversioner
a minor or a female-right of a remoter reversioner to sue.
(76)
Where the nearest reversioner has waived his rights or
abandoned them or colluded in the alienation.
(77) Remote chance of
succeeding-claim speculative- remote reversioner has no right to sue.
(78) Right of an
after-born son to contest alienation of father.
(79) Females when competent to object.
(80) Female's right to
challenge an alienation by another female.
(81) No non-heir can
object, whether an alienation is by a male or a female.
(82)
Right of relations residing elsewhere to object.
(83)
Assent of reversioners to alienation acquiescence its
effect.
(84)
Sons bound by assent of their father.
(86) Decree binds all
reversioners-principle of resjudicata and estopped.
(87) Collusive suits by minors. .
(88) Whether non-agnates have right to
object.
(89) Right of collaterals to control alienation by a female.
SECTION X
Miscellaneous
(95) Right of an
after-born son to contest alienation by father.
(97) Alienation-legal necessity-nature of
enquiry.
(98) Transfer of
reversionary rights.
(99) Alienation- exinction of vendee’s line- property if reverts to vendor’s descendants.
SECTION I
INTRODUCTION
(1) Power of
disposal of property under the Customary Law agnatic theory.
The "right of property" is
commonly held to include three essential elements, that of unhampered
'exclusive use for life or for a term of years that of alienation by gift or
exchange during life, and that of bequest. But these three elements are not
found in combination in a complete and unrestricted sense, except in a highly
developed condition of society. It will be readily conceded by those who know
anything of the agricultural communities in the Punjab that such a condition of
advanced development has not been reached in those communities where actual
association, in the ownership of the land (giving rise to common interests and a
natural leaning in favour of male heirs resulting in a form of the agnatic
family system in its widest extension, as embracing all male persons who are
descended from a common ancestor), still largely checks the growth of
individualism. Thus while the unhampered exclusive use of property in a man's
possession, whether ancestral or acquired, for his life-time with a free
disposal of the income, is not denied, freedom of alienation, whether by gift
or bequest, is in regard to ancestral immovable property, subject in most cases
to certain restrictions.
As has already been observed, the
theory current in the Punjab is that land ultimately belongs to the tribe or
village community, and that the bolder for the time being is not empowered to
alienate it, except for necessary purposes. In practice, however, this theory
is considerably modified. The object of this Chapter is to examine this theory
in detail and to study exceptions to and limitations on it.
The strict agnatic theory is
expounded at length in Gujar v. Sham Das (I), relevant extract from which will
be found on earlier pages. It was observed therein-
"In respect of ancestral
immovable property in the hands of any individual, there exists some sort of
residuary interest in all the descendants of the first owner or body of owners,
however remote and contingent may be the probability of some among such
descendants ever having the enjoyment of the property. The owner in possession
is not regarded as having the whole or sole interest in the property, and power
to dispose of it so as to defeat the expectations of those who are deemed to
have a residuary interest and who would take the property, if the owner died
without disposing of it."
The limitations within which persons
having or claiming to have such a residuary interest may prevent an owner in
possession from defeating their expectations will be found to vary according to
local circumstances, which may either weaken or rebut the presumption that the
owner has not an unrestricted power of disposition. In a later Full bench
ruling reported as Ramji La! v. Tej Ram (2)
a case from Delhi District, It was pointed .out that the principles laid down
in Gular v. Sham Das. (3) were specially said to apply to the central districts
of the Punjab merely because it was a well-known fact that in these districts
the village communities consisted as a rule of members of well-known
agricultural tribes, and that the true principle of the judgment was that where
the land which the holder for the time being seeks to alienate is found to have
come to him from his ancestors as his share of the land held by them as members
of a village community, the initial. presumption. is that he has not an
unrestricted power of adulation. This principle is not restricted to all
particular locality, but is equally applicable wherever the owner's title has
originated in the manner above described.
Again, it was observed in
Karim-ul-Din v. Sharaf Din (4)-"This law held it origin in settlements of
tubes or conglomerations of them over large tracts of land and in villages
which were held by the settlers or their descendants for generations, but it is
of wider application and applies equally to holdings occupied or acquired by
in:iividul1 proprietors." Similarly it was remarked in Sardari Mal v. Khan
Bahadur Khan (5)- "The rule of restriction, though taking its origin
primarily from tribal tenure of land and dating back to a time when land was
held in common, nevertheless applies to individual holdings as well as
acquisitions of a time subsequent to the tribal settlement."
Commenting on the observations of
Sir Meredyth Plowden in Gujar v. Sham Dos quoted above, Sir Shadi Lal. C. J.;
remarked in 1924 6 Lah. 8-"It must be borne in mind that these observations
were' mere deductions from the agnatic theory which was .invoked in order to
explain certain features of the Customary Law and which, was sub- sequently
utilized for the purpose of formulating other rules which were hardly warranted
by the practice and usage of the people upon whom those rules were imposed. It
appears that the only issue before the court, was whether in a case, where the
power of a sonless Jat proprietor to alienate ancestral land without necessity
is in dispute, it is the duty of the alienee to prove custom authorising a
transfer of the ancestral land in favour of a stranger and an issue of this
character should be de- termined upon precedents and other evidence adduced bv
the parties and not upon theoretical generalisations."
In the same case, Rossingol, J.
remarked Now in that case (Gujar v. Sham Das) the simple question before the
Judges was, on whom lay the onus of proving that a sonless proprietor had power
to dispose of ancestral land without necessity and their finding they based not
on facts but on theory. Now, with all deference, I hold the opinion that theory
and custom are antitheses, that. custom can never be a matter of mere theory
but must always be a matter of fact. The conclusion in Gujar v. Sham Dos is
binding on us but the theories by which the learned Judges attempted to explain
the custom have no such binding force... .custom should be determined not by
theory but by practice." Urban immovable property-Where the alienor is a
member of a recognized agricultural tribe, his power of disposition is
generally restricted. The initial presumption of restriction continues even if
the subject of sale is urban immovable property. The general presumption of the
continuance of restriction comes in irrespective of the nature of 'the property
inherited by him. The presumption may be light and the onus may be easily
discharged, but the initial presumption will always remain in favour of the
restricted power of alienation whatever the property may be and whenever it is
situated. The initial onus would therefore lie on the alienee. ( 1)
Restrictions on power to dispose by
alienation ancestral property in possession of male proprietor in the
Punjab-whether infringe Arts. 19 (1) (f) and 15 of the Constitution.
In Nathu v. Raila (2), there arose a
very interesting question. There was a sale made by Ralill in favour of Dulla,
which was attacked by Nathu on the ground that the sale was without
consideration and necessity. It was argued that the sale could not be
challenged because it is an in- reference with fundamental rights which are
granted under Arts. 13, 15 (1) and 19 (1) (f) of the Constitution. It was held
that the rights of a male proprietor in the Punjab governed by custom in
ancestral land are that he holds the land as a full owner but in regard to his
powers of alienation there is in his ma]e descendants or in the collaterals
connected with him from the common ancestor from whom the land has descended,
the right to object to the alienation if it is not with their consent or is not
for necessity. The reversioners have a residuary power vested in them of
controlling the alienations made by a proprietor. Such being the right of a
male proprietor, it cannot be said that he has not the right to dispose of his
property and, if the alienation is challenged by one who has the right to
challenge, it is an interference with the right guaranteed by Act. 19 (1) (f)
of the Constitution.
It was further held that the
owner of ancestral land, which has come into the hands of a male proprietor,
has not the whole and sole interest in the property or power to dispose of it
as this is the nature of ownership in custom and is attached to ancestral land,
and it cannot be said that this is an unreasonable restriction on the exercise
of any rights even if it were held that the matter falls within Art. 19 (1)
(f), as is clear from Art. 19 (5).
Further, who ever lives in .the Punjab, whether he is jat or Rajput or
anybody and whatever be his race, he has these limitations Imposed upon his
power of alienation. The estate which he has is of a limited nature. By the
very nature of the estate that he inherits from his ancestors, the power of
alienation is a limited one and there is no infringement of Art. 15 either.