HIGH COURT OF HIMACHAL PRADESH
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CHOWDHRY, J. -
(1.) THE facts of this case have been set forth in my judgment dated 18 12 1951 whereby the following issue was remitted to the District Judge for a finding: "Whether the parties are governed, under any local law or custom, by a form of adoption which did not require the ceremony of giving and receiving, and under which an orphan boy could be given in adoption by his brother?"
(2.) AFTER taking evidence produced by the parties the learned District Judge has submitted the finding that although in Mandi it was not absolutely necessary to strictly follow the ceremonies which are prescribed by the Hindu law, no such adoption could be made without the sanction of the Darbar.
The learned counsel for the defendant appellant has challenged the correctness of this finding. His contention was that the evidence produced on behalf of the appellant was not given due consideration by the District Judge, and that in holding that the sanction of the Darbar was necessary he had gone beyond the limits of the issue remitted to him.
(3.) THE appellant produced seven witnesses, including the defendant, six of whom have deposed about the custom set up by the appellant. It is noteworthy that (with the exception of Hari Singh witness), while they have all stated that performance of ceremonies was not necessary, each and every one of them has admitted, that it was essential to obtain the sanction of the Darbar for the validity of the adoption. One witness for the defendant appellant, Upadhu, made it further clear by stating that the adoption of his brother Goglu by one Maya Purohit fell through because, as a result of an objection filed by the witness, sanction of the Darbar for the adoption was refused. The learned counsel for the defendant appellant argued that the statements of the appellant's witnesses that no ceremonies were required related to custom, while their statements that sanction of the Darbar was essential amounted to an expression of opinion on a question of law, and that the latter should be discarded and only the former accepted. I am afraid no such argument is open on behalf of the appellant. There is no doubt that the remitted issue spoke of both law and custom, but there was no mention therein of the sanction of the Darbar. It would also be absurd to say that the appellant produced the said witnesses in order to express any opinion on a point of law. Nor do the witnesses themselves profess to do' so. On the contrary, each and every one of them speaks of both the non essentiality of ceremonies and essentiality of the sanction of the Darbar as part and parcel of a single custom. A mere perusal of their depositions makes it abundantly clear. That being so, the so called two portions of the statements of the appellant's witnesses are inseparable and form components of one single whole. In fact, it was the argument of the learned counsel for the appellant himself that there was no statute law in Mandi which required sanction of the Darbar for an adoption. If so, it becomes clearer still that in saying that no ceremonies were necessary but sanction of the Darbar Was essential the witnesses were deposing to what the custom was. It follows therefore that, according to the defendant appellant's own evidence, the local custom was not the pure and simple one that no ceremonies were necessary, but a conditional custom that no ceremonies were necessary provided sanction of the Darbar be obtained. To the same effect is a decision of the Ijlas i alia, the then highest Court in Mandi State, referred to in the finding of the learned District Judge, In the present case, however, it is admitted that no sanction of the Darbar was obtained. In fact, the whole theory of adoption seems to be untrue, as remarked in the original judgment of the lower appellate Court, since at the time of mutation on foot of the gift the donor referred to the appellant as a Bhanja, and not as an adopted son. Furthermore, if the appellant had been an adopted son, he would have succeeded to the property on the death of the adoptive father, and there could be no question of the adoptive father's widow transferring the property to the appellant by means of a gift.;
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