Modi, J. - (1.) THIS is an appeal by special leave from a judgment of a Division Bench of the High Court of the former State of Bikaner dated the 30th September, 1947, and has come to us for disposal by virtue of the provisions of the Rajasthan Appeals and Petitions (Discontinuance) Ordinance (No. XL) of 1949 read with the Rajasthan Appeals and Petitions (Discontinuance) (Amendment) Ordinance (No. XII) of 1950.
(2.) THE appellant Sarjeet Singh was defendant No. I in the suit which was brought against him and Mst. Harkur by the plaintiff Kripal Singh. Kripal Singh's case was that Mst. Har Kaur's husband, Prem Singh, had taken the plaintif in adoption by a registered deed dated the 26th July, 1926, therefore, the subsequent adoption of Sarjeet Singh by Mst. Har Kaur by a registered deed dated 21st April, 1945, was void and ineffectual against the interests of Kripal Singh. It may be pointed out here that Kripal Singh was then son of a sister of Prem Singh. Defendant Sarjeet Singh resisted the suit by denying the adoption of Kripal Singh and further pleaded that Kripal Singh never came into possession of Prem Singh's estate although the latter had died as early as 1937. It is not necessary for us to refer to other defences which had been subsequently raised by Sarjeet Singh, as they are not material for the purposes of the present appeal. THE District Judge dismissed the plaintiff's suit on the ground that he had failed to prove that his adoption by Prem Singh was supported by subsequent conduct to that effect; in other words, the learned District Judge held that Kripal Singh's adoption had not been acted upon and was, therefore, of no effect. THE plaintiff went up in appeal to the High Court of the former State of Bikaner, and the learned Judges of the Division Bench who heard the appeal, reversed the decree of the trial court and decreed the plaintiff's suit. Sarjeet Singh then applied for leave to appeal against the judgment of the High Court and a Division Bench of this Court to which one of us was a party granted the leave by an order dated 12th March, 1953, on the ground that the case involved the decision of a question which was of considerable public importance and upon which there was a divergence of opinion. That question is, and that is the only point which has been argued before us in this appeal, whether subsequent treatment as an adopted son is an essential requirement for upholding a customary adoption in the former State of Bikaner. Learned Counsel for the defendant appellant has strenuously contended that according to the custom in force in that State relating to adoption, the mere execution and registration of a deed of adoption was not enough to prove an adoption but that it was farther imperative that the execution of the document must be supported by subsequent continuous treatment as parent and son between the adoptive father or mother and the adopted son. A number of authorities were cited before us in this connection some of which were also relied on in the High Court. These authorities came from the Punjab and the former State of Bikaner. The first case to which reference may be made in this connection is Mukhtar Singh vs. Nathmal (l ). It was held in that case that: - "an appointment of an heir in order to be valid must be made in some unequivocal and customary manner and the execution of deed coupled with a long course of treatment has always been recognised as one of the modes of manifesting such an appointment. There must be a clear declaration of an intention to adopt the boy concerned as a son and the execution of a deed of adoption with the continuous subsequent treatment as an adopted son is a sufficient manifestation of that intention. Where this continuous subsequent treatment as an adopted son is lacking, the mere execution and registration of a deed of adopt on is not enough. " Reliance was placed for the latter proposition upon Chhajuram vs. Mehar Singh (2;. This latter was a case which was decided by a learned single Judge, and it was stated that although the execution and registration of an adoption deed constituted sufficient publicity of the fact of adoption and entitled the person named in the deed to claim the status of an adopted son and that such a proposition was supported by Mehan Singh vs. Kedar Singh (3) Jiwan Singh vs. Pal Singh (4), it was essential for the adopted son to show that after the registration of the deed there had been continuous subsequent treatment of himself by the parent as adopted son) No authority was, however, cited for the proposition which has sought to be laid down. A reference to Mehan Singh vs. Kedar Singh (3) which was a case decided by a Division Bench shows that according to the view held there, all that is necessary to constitute an adoption is the clear expression of an intention on the part of the adoptive father to adopt the boy concerned as his son and that a sufficient a manifestation of that intention is the execution and registration of a deed of adoption coupled with a clear declaration in court and subsequent treatment as adopted son. It was further pointed out however that the proof of such subsequent treatment cannot be reasonably demanded in a case where very soon after the execution of the deed of adoption the reversioners of the adoptive father sue for a declaration that the adoption did not in fact take place. In the case cited, the plaintiff had brought his suit within two months of the execution of the deed of adoption and, therefore, the learned Judges held that the adoption was proved and that it was impossible to offer any proof of any subsequent treatment between the adoptive father and the adopted son as such For the latter proposition, reliance was placed on Gurbachna vs. Bujha (5) which took the same view, We may next refer to Chanan Singh vs. Buta Singh (6) in this connection. In that case Addison J. held that : "what is essential for adoption is some unequivocal declaration of the appointment which may be manifested by a forma! declaration before the brotherhood, by a written declaration or by a long course of treatment. The performance of ceremonies is not essential". We would draw particular attention to the use of the word "or" in the above statement. All that was necessary, according to the learned Judge, was an unequivocal declaration or conduct amounting to such declaration. This, in our opinion, seems to be more in consonance with both common sense and principle. Usually, it seems to have been required in the matter of customary adoption that a clear and unequivocal declaration be made in the presence of the brotherhood which is assembled for the purpose; but where the brotherhood may not be called, the same intention could be manifested by the execution and registration of a deed and we fail to see the necessity of a more unequivocal manner of manifestation of intention than where the adoptive father executes a deed and admits to have made it before the Registrar. But where such a deed may not have been executed, a similar result could be produced by a long course of treatment or subsequent conduct as father and son between the parties concerned. It is indeed well established that no ceremonies need be performed in the case of customary adoption. An insistence, however, no continuous subsequent conduct as father and son brings in its wake considerable difficulties and complications which should be avoided in the interests of the certainty and the uniformity of law unless such a course was unavoidable. It may thus happen that soonafter an adoption has been made by a registered document, the reversioners concerned may bring a suit challenging the adoption It would be impossible and indeed contrary to the requirements of common sense in such a case to require proof of cantinus subsequent treatment as an essential pre requisite for upholding an adoption. Similarly it may very well happen that the adoptive father may die shortly after the adoption. Would it be right, therefore, to hold that as the adoption was not supported by subsequent conduct, it did not amount to adoption in law. These instances clearly indicate, in our opinion, that the essential requirement or an adoption is and must be, except of course in case where there is a clear custom to the contrary, that the adoptive father most have clearly and unequivocally expressed his intention to take a certain person in adoption and the question of subsequent treatment of the adopted son as such does not really arise. Where however an adoption is contested on the ground that it was obtained by fraud or undue influence or similar other grounds, the evidence of subsequent treatment may constitution valuable evidence as bearing on the intention of the adoptor but to that extent only, and it would not be right to argue from the bearing of such treatment on the factum of adoption in the exceptional cases, alluded to above, that continuous subsequent treatment as parent and son is an indispensable requirement for the validity of an adoption. We cannot help further stating in this connection that if full-force is given to the meaning of the word "continuous", it may very veil happen that an adoptive parent may choose to treat a son, whom he has property adopted by having expressed his intention to that effect, as his adopted son for some period of time and then may change his intention and may go on doing so with the result that there will be rank uncertainty with regard to the status and fortunes of an adopted son. We cannot accede to the view that we should permit or encourage such a course. We now propose to consider the cases which were cited before us pertaining to the former State of Bikaner. The earlier case to which our attention has been invited was Nanudan Charan vs. Devidan (7 ). That case has really no bearing on the question raised before us, as the question there was whether want of chastity of the adoptive mother operated as any disqualification for making any adoption by her. The next case is Raman Lal vs. Mst. Nandan (8) which was decided by the Judicial Committee of the former State of Bikaner. In that case the parties were Brahmins of Bikaner. One B died in 1926 leaving no male issue and his daughter did not prefer any claim to her father's estate. R claimed B's estate as his adopted son, and, therefore, the widow of a collateral along with her adopted son O filed in respect of B's estate. It was held that R was the adopted son of B and was entitled to his estate. The learned members of the Judicial Committee observed that "khola" or the customary adoption which was in vogue in the State of Bikaner was different from an adoption under the Hindu law, and in saying so, they were quite right. They went further and laid down that Khola in all essential respects is analogous to the customary adoption in the Punjab and went on further to hold that what was required for an adoption was the clear expression of an intention and sufficient manifestation of that intention; that expression of intention may be by an oral declaration before the brotherhood or by writing or executing a deed of adoption. They went still further and said the "manifestation of intention means treatment as a son," and relied Chiman Lal vs. Hari Chand (9) in support of the proposition. With respect, we should like to point out that although we have no doubt that an adoption in the former State of Bikaner as in some other parts of Rajasthan rests upon the foundation of custom and not Hindu Law as such, we are unable to agree that it would be right to hold that the customary adoptions of the Punjab which may vary from place to place and tribe to tribe could be said to be analogous to the custom of adoption to Bikaner in all essential particulars. There are undoubtedly many resemblances between the custom of adoption in Bikaner and the Punjab as contradistinguished from the adoption under the Hindu Law. The custom in both cases dispenses with ceremonies and the adoption of a married man is valid, and similarly an adoption of and orphan is recognised and there are no restrictions as regards the age or degree of relationship of the person to be adopted. Even so, it would not be right, in our opinion to hold that the customary adoption in the Punjab resembles in all its incidents the customary adoption in the former State of Bikaner, of for that matter any other parts of Rajasthan, as the learned members of the Judicial Committee seem to indicate when they said "property speaking, Khola is a customary adoption of Rajputana. If we make a comparative study we see that Khola in all essential respects is analogous to the customary adoption of the Punjab. " We may cite just one example to show how the customary adoption in the Punjab and in Bikaner are essentially different in spite of outward resemblances in many respects. and it is this A customary heir in the Punjab does not thereby lose his right to succeed to property in his natural family although it has been held in some cases that he cannot succeed in the presence of his natural brothers; whereas so far as we know, there is a complete transplantation of the adopted son from his natural family to the adoptive family in the case of customary adoptions in Rajasthan. The consequences of this divergence in the right of inheritance are indeed tremendous and this feature clearly brings about the point that we wish to make, namely, that it would not be right to import the custom of the Punjab as holding good for the subjects of this State. We should like to add a few words about Chiman Lal vs. Hari Chand (9), as it seems to us with respect to have been mis-under stood and mis-applied. Their Lordships of the Privy Council in that case held that among Agarwal Banias of Zira, Ferozepur District the general rule of Hindu Law as to adoptions did not apply and that by the custom applicable to them an unequivocal declaration by the adopting father that a boy had been adopted and the subsequent treatment of that boy as the adopted son was sufficient to constitute a valid adoption which had been found as a fact by the two lower courts. Their Lordships, however, clearly pointed out that owing to the limited nature of the evidence as to custom among the Agarwal Banias of Zira led in that case, it should not be treated as a precedent where fuller evidence regarding the alleged custom might be forthcoming. It is obvious, therefore, and that case should not have been and cannot be treated as laying down the law with regard to customary adoptions as a whole. Indeed the finding was left open even with respect to the Agarwal Banias to which caste the parties belonged. We need not repeat all that we have already stated above as to the Punjab cases regarding the ten ability of the view that subsequent conduct as adopted son was essential for upholding a customary adoption, The next case Pharas Ram vs. Mst. Baya (lo) to which we may refer was also decided by the Judicial Committee of the for-mer State of Bikaner and is an unreported case but a certified copy thereof was made available to us and was placed on the record. In that case, the adoption of a previously adopted son was rejected on the ground that such adopted son had failed to prove subsequent conduct in support of and in cavonance with the adoption. The learned Judges had also held that the execution of the previous adoption had not been proved and that was a vital defect. Leaving aside the finding on the question of fact upon which it may be possible to support the judgment, we think that the view taken there was really based upon the decision in Raman Lal's case (8) and, therefore, the same comments, as we have already made above, are applicable to it. We were next referred to Baluram vs. Sagarmal (l0 ). In that case it was decided that a son born, before his father went in adoption, could not have any connection with his original family but must be deemed to have been transplanted to the family where his father went in adoption. It has, therefore, no direct application on the point raised before us but shows what we have already stated above that the customary adoption in Bikaner involved as it were the death of the adopted son in his natural family and his re-birth in the family where he is taken in adoption which is contrary to the incidence of customary adoption in the Punjab, The next case which was cited before us is Ganesha vs. Sliriram (11 ). In that case the adoption of a boy who was previously adopted was upheld as against a subsequently adopted son. The conclusion arrived at by the learned Judges was quite correct although Mushran C. J. in that case held, relying on the cases of Ramanial vs. Mst. Nandan (8) and Fharasam vs. Mst. Barja (l0), cited above, that in order to unhold the adoption it was necessary that the relationship between the adoptive mother and the son continued to be that of parent and son after the adoption, and the learned Judge found that there was such evidence in that case. The last case to which our attention was drawn is Makha vs. Ramrikh (12 ). In that case also, the adoption of the previously adopted son was upheld as against the subsequently adopted one, and it was held that no such conduct on the part of the adoptive mother had been proved which showed that the adoptive mother had merely made a paper transaction in favour of the previously adopted son. It appears to us that all the above cases which were decided by the Bikaner courts were to a greater or a lesser degree based upon the view take in some of the Punjab cases although it is remarkable that even there the course of decision has not been quite uniform. It is necessary to point out in this connection that not a single case from Bikaner was cited before us in which the custom sought to be upheld by the defendant appellant in the present case, and to which the Bikaner decisions referred to above lend some support, was actually based upon evidence of such custom examined and upheld in any particular case. What we wish to point out is that to us it appears to have been assumed that the analogous customs in the Punjab applied to the subject of Bikaner State without regard to the fact that, in order properly to arrive at such a conclusion, it was necessary to allege and prove such a customs in Bikaner itself.
(3.) FROM a review of the above cases, we have no hesitation in coming to the conclusion that what is in fact essential to uphold an adoption which is undoubtedly a customary adoption in Bikaner is that the adoptive parent should make an unequivocal declaration as to adoption which may be either by way of an announcement before the brotherhood or by means of a writing which may also be registered and that it is not necessary to the validity of such an adoption that there should be further subsequent treatment between the adoptive parent and the adopted son as such. With respect, we may point out that it appears to us that it is one thing to say that to prove a customary adoption, an unequivocal declaration by the adoptive parent coupled with subsequent treatment would be sufficient, but it would be quite another thing to say that such subsequent treatment is essential to the validity of the adoption - a distinction which seems to have been lost sight of in most of the cases which we have discussed above. We may further point out that it is always open to an adoptive parent to question an adoption on the ground of fraud or undue influence or similar other ground where any such factors may have come into play and there of course the question of subsequent treatment between the adoptive parent and the adopted son would certainly be relevant and may have an important beating on the points raised. But such cases part the factors of subsequent treatment seems to us to be an unwarranted complication which is bound to lead to interminable disputes between the parties concerned and make the lot of the adopted son a most unenviable one. We hold accordingly. In this view, the adoption of Kripalsingh must prevail as against that of the defendant appellant Sarjeet Singh. We may further point out that Prem-singh had adopted Kripalsing on 26tn July, 1926, and his widow Har Kaur adopted Sarjeet Singh 19 years after wards on 21. 4. 1945. It is admitted that Premsingh was alive till 1937. In our opinion, he had clearly expressed or manifested his intention to adopt Premsingh when he executed the registered deed in favour of Kripalsingh and admitted his having done so before the Registrar at the time of registration. Premsingh did nothing to question this adoption through-out his life-time, and even Mst. Har Kaur did not think fit to do so until 8 years after her husband's death. These facts leave no doubt in our mind that the expression of the intention of Premsingh as to the adoption of Kripalsingh was clear and undoubted when it was made and remained as such untill 19 years afterwards when Mst. Har Kaur for some reason thought fit to adopt Sarjeet Singh in 1945. In these circumstances we are decidedly of the opinion that the adoption of Kripalsingh must prevail over that of Sarjeet Singh which is void and of no effect whatsoever. Consequently; we dismiss this appeal although on different grounds from those relied on by the learned Judge of the Bikaner High Court. The respondent shall be entitled to receive his costs of this appeal from the appellant. .;