GROVER, J. - (1.) IN order to appreciate the dispute between the parties a reference to the following pedigreetable would be useful. There seems to be a mistake inthe pedigree -table set out in the judgment of the trial Court. It is admitted before me by the counsel for the parties that the correct pedigree -table would be as follows: KANWAR ____________|_____________ | | Shibu Hira __________|__________ | | Jaswant Data Ram | Sunder Singh=Mst. Dakhan (Widow) | Girja Singh (brother of Mst. Dakhan). On 28th September 1948 Data Ram adopted Girja Singh, who admittedly was not a kinsman of Data Ram. On 28th September 1950 Mst. Dakhan and Data Ram gifted the land in dispute to Girja Singh. The plaintiffs claiming to be the collaterals of Data Ram and Sunder Singh filed this suit on 4th October 1950 for a declaration that the adoption dated 28th September 1948 was invalid according to custom and that the same be set aside. On 11th December 1950 the plaintiffs filed another suit for a declaration that the gift by Data Ram and Mst. Dakhan in favour of Girja Singh was ineffective and not binding on their reversionary rights. Both the suits were consolidated and were disposed of together.
(2.) AS regards adoption, the trial Court found that it had been proved to have taken place but that the adoption was invalid. As the property was not found to be ancestral, it was held that the gift was nothing but an acceleration of succession and that both the suits were barred by time. Consequently the suits were dismissed. The learned Additional District Judge in appeal held that part of the property was ancestral and part of it was non -ancestral. In the suit relating to adoption he gave a finding that the suit was not barred by time. As regards the adoption or a stranger it was held that according to the riwaj -i -am of Jagadhri Tehsil compiled in the settlement of 1919 -20, an adopted son should be amongst the relatives and even amongst relatives the brother's son, grandson and great grandson were to be given preference, and if no collateral was living then any one from the same got could be adopted. The learned Judge came to the conclusion that Girja Singh being a stranger could not have been validly adopted in the presence of nearer relations. He, therefore, granted a declaration to the effect that the adoption of Girja Singh by Data Ram was invalid. As regards gift, a decree was granted with regard to the khasra numbers which had been found to be ancestral and the suit of the plaintiffs was dismissed with regard to the land which had been found to be non -ancestral. The plaintiffs as well as the defendants have come up in second appeal to this Court, and both the appeals (R. S. As. Nos. 679 and 591 of 1953} will be disposed of by this judgment. The first question that has been raised on behalf of the defendant -appellants in their appeal (R. S. A. No. 679 of 1953) is that the adoption was perfectly valid and the mere fact that Girja Singh was not a kinsman of Data Ram could not make the adoption invalid. The decision of the learned Addl. District Judge is not very clear on the question as to whether the factum of adoption had been proved. It seems, however, that the finding of the trial Court that the adoption had in fact taken place was not questioned, but the validity of adoption wasattacked. The question of consent of the collaterals having been obtained was also considered by Mm and he came to the conclusion that consent had not been proved. Before me the factum of adoption has not been disputed on behalf of the plaintiffs. The only question, therefore, that has to be decided is the validity of such an adoption as was made in the present case. According to para 35 of Rattigan's Digest of Customary Law, a soiltess proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir. The riwaj -i -am of Jagadhri Tehsil, Exhibit P -11, has already been referred to which confines the adoption to relatives and particularises the relatives who should be given preference. Question 59 of the Customary Law of the Ambala District compiled by Whitehead is in the following terms: 'Question 59.Is it necessary that the person adopted should be related to the person adopting? If so, what relatives may be adopted; and what relatives have the preference? Is it necessary that the parties should be of the same tribe, or of the same got?' The answers given to the above question at the settlements of 1887, and 1918 are set out below: '1887. The general sense of the replies is that an adoption must, if possible, be from the near collaterals. Failing them, a daughter's son or sister's son may be chosen, but with these exceptions Hindu tribes rarely adopt, except from their own got and no tribes recognise adoption from an outside tribe. Muhammadans in general pay less attention to got than Hindus. Numerous cases are however quoted by Jats of Rupar where the adopted son belonged to a different family or got, and in Narain -garh an instance is given of the adoption of an outsider in preference to a collateral being upheld by legal decision. This is a good instance of the difficulties surrounding the whole question of adoption. The general feeling of the country is clear enough, but the customs are not sharply defined, and the intricacies of the law open out a wide field for useless litigation. 1918.In practice the order of succession is followed and only near collaterals are adopted: failing them a daughter's or sister's son may be chosen. Breaches of this rule are very rare and must be treated as exceptions to custom.' It is noteworthy that the answers in the settlement of 1887 show a departure from the rule that the adoption must, if possible, be from the wear collateralsa daughter's sun or a sister's son could be chosen. Numerous cases are stated to have been quoted by Jats of Rupar where the adopted son belonged to a different family or got, and a Naraingarh instance is stated to have been given of adoption of an outsider in preference to a collateral which was upheld. In 1918 it was stated that only near collaterals were adopted; failing them a daughter's son or a sister's son and that the breaches of this rule were rare. In support of the view that such statements in riwaj -i -am that adoption should be made from amongst the near collaterals are merely directory and not mandatory, reliance has been placed by Mr. Ganga Parshad on behalf of the defendant appellants on Hem Singh v. Harnam Singh, AIR 1954 S.C. 581. In that case it has been laid down by their Lordships that under the Customary Law in the Punjab adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid. In para 6 of the judgment reference was made to paras 35 and 36 ofRattigan's Digest of Customary Law. Then their Lordships made the following observations: 'It appears to us that the basic idea underlying a customary adoption prevalent in the Punjab is the appointment of an Heir to the adopter with a view to associate him in his agricultural pursuits and family affairs. The object is to confer a personal benefit upon a kinsman from the secular point of view unlike the adoption under the Hindu Law where the primary consideration in the mind of the adopter it a male is to derive spiritual benefit and if a female, to confer such benefit upon her husband. That is why no emphasis is laid on any ceremonies and great latitude is allowed to the adopter in the matter of selection, Mulla in his well -known work on Hindu Law says: 'It has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory; therefore, the adoption of an only son, or a stranger in preference to a relation if completed, is not invalid. In cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding.' We see no reason why a declaration in a 'Riwaj -i -am should be treated differently and the text of the answer should not be taken to be directory. However peremptory may be the language used in the answers given by the narrators of the custom, the dominant intention, underlying their declarations which is to confer a temporal benefit upon one's kinsmen should not be lost sight of.' Counsel for both the parties rely on these observations in support of their respective contentions. It is urged by Mr. Ganga Parshad that their Lordships approved of the rule laid down by Mulla with regard to Hindu adoptions that texts which enjoin adoption of a relation in preference to a stranger are only directory and that the same rule has been approved with regard to the statement in a Riwaj -i -am. At the same time Mr. Shamair Chand relies on the emphasis laid by their Lordships on the object of an appointment of an heir by agriculturists, the object being to confer a personal benefit upon a kinsman. This, he says, is in accord with the general custom contained in para 35 of Rattigan's Digest, and he submits that although preferences as regards age or degree of relationship of the adoptee may be merely directory but since the whole basis of agricultural custom is to confine the property to kinsmen, the adoptee must be a kinsman and a total stranger cannot be appointed. Mr. Shamair Chand has invited my attention to Moman v. Mt. Dhanni, ILR 1 Lah 31: (AIR 1920 Lah 415) in which Broadway J. held that the onus of proving that the adoption of a stranger is valid by custom rests on the adopted child which has to be discharged by him. In that case it was observed at p. 33 (of ILR): (at p. 416 of AIR) as follows: 'The question still remains, however, whether a custom has been established by which Jats of Bangraon, Tehsil Fatehabad, in the District of Hissar, may adopt strangers. As pointed out at page 54 of Rattigan's Digest of Customary Law, the appointment of a person of a different got is generally op -nosed to custom and in paragraph 37(b) the same learned author points out that amongst agriculturists, especially in the eastern districts of the Punjab, such appointments are not now favoured and are to be presumed to be invalid. There seems, therefore, no doubt at all that the general custom is against the validity of the adoption of Bega by Uda and that therefore the onus rests on him to prove that there is a custom existingamongst Jats in his village validating his adoption'. In Jowala v. Dewan Singh 166 Ind Cas 237: (AIR 1936 Lah 237), Tek Chand J., had occasion to consider a case where a remoter collateral had been adopted in the presence of a nearer collateral. The Vernacular riwaj -i -am of Nakodar Tehsil contained the following answer of Hindu Jats on the point: 'As a general rule, first, the sons of the real brothers are adopted. In their absence the remote collaterals having regard for nearness are adopted. It cannot be that a remote relation be adopted to the exclusion of a near relation's son. In case a near relation refused, the son of a remote relation is adopted, but the adopter and the adoptee should be of one and the same tribe, with the condition that the adoptee and the adoptive father should be of one and the same got,' It was held that the entry in the riwaj -i -am was not mandatory but was directory. This means that the entire entry was held to be directory and not any particular part of it. Similarly, in the case decided by their Lordships of the Supreme Court referred to before, there is a discussion of a number of decisions of the Lahore High Court in which the entries in the riwaj -i -am as to the persons who can be adopted were held to be merely indicatory' and that view was adopted by their Lordships themselves. But the person who had been adopted in Hem Singh's case was a collateral in the eighth degree; therefore, he was still a kinsman of the adopter. If the general rule of custom laid down in para 35 of Rattigan's Digest is to be followed, then only a kinsman can be appointed an heir or taken in adoption. If, however, the entries in the riwaj -i -am with regard to the persons who can be adopted or not are to be taken as merely indicatory or directory and not mandatory, then the question at once arises as to whether the statement contained in para 35 of Rattigan's Digest confining the appointee to kinsmen should be taken to be mandatory or directory. If the rule which has been adopted with regard to the texts in Hindu Law is to be adopted, as seems to be the trend of the observations contained in Hem Singh's case AIR 1954 SC 581 then it will have to be held that such a restriction is merely directory and cannot be treated as mandatory. This matter, however, is not free from difficulty and is one which is likely to arise in a number of cases. I consider, therefore, that it would be proper if the aforesaid point is decided by a larger Bench.
(3.) THE other point that has been raised by Mr. Ganga Parshad relates to the question of limitation. It has been urged that the view of the trial Court that the suit is barred by limitation was correct and that the learned Additional District Judge committed an error in holding that the suit was within time. The question of limitation in the present case depends entirely on appreciation of evidence with regard to the point of time when Girja Singh was adopted. The finding given by the learned Additional District Judge is based on evidence and no error of law has been shown to me. It must, therefore, be held that the suit was within time,;