S.M. Daud, J.
1. This suit has its origin in a caveat lodged in response to a petition for letters of administration vis-a-vis the estate of Sardar Prehladsingh who died at Bombay on 29-1-1983.
2. Dharamsingh, a Sikh gentleman was a native of Rawalpindi now a part of Pakistan. He was married to Bhagwanti and the couple had five sons and three daughters named Tejasingh, Dhyansingh, Vasavesingh, Mehersingh, Prehladsingh, Anupkaur, Mohankaur and Iqubalkaur. Tejasingh and Iqubalkaur figure as D.Ws. 1 and 4 in this suit. Dharamsingh was a well-to-do person running a commission agency in the name of M/s. Isharsingh Dharamsingh and owning more than one house in Rawalpindi. Kuri and Sukho are villages or townships in the District of Rawalpindi. Prehladsingh was brought up by his paternal grandmother Vaziridevi as he had lost his parents while quite young. The sons separated in the early twenties of this century. From village Kuri, hailed brothers Gurmukhsingh and Kahansingh. Harkaur was a daughter of Gurmukhsingh and she was married to Premsingh, the father of Kulwantsingh (hereinafter referred to as 'plaintiff'). The couple lived together for a short time and separated soon after the birth of plaintiff. Premsingh's cousin Isherkaur (P.W. 3), being the mother's sister's daughter was married to Kahansingh. The two marriages i.e. of Harkaur and Isherkaur, were, what is known as do-hati marriages in which brides and grooms are exchanged between two families. Plaintiff was brought up by Premsingh. Prehladsingh was in Rawalpindi till about 1938 to 1940 and lived together with Harkaur. The two then came over to Bombay and here Prehladsingh found his metier starting with a small restaurant 'Preetam Hindu Hotel' at Dadar, he went from strength to strength and at the time of his death was rated a very rich person. After the vivisection of the country his siblings as also Kahansingh and Premsingh etc. migrated to this country. Prehladsingh's death led Harkaur to move for letters of administration - with plaintiff filing a 'no-objection' to the solicitation though claiming the status of a son to the deceased. The dead man's sister, Iqbal kaur (defendant, has filed a caveat. Harkaur passed away on 26-5-1988 and plaintiff has been substituted as her heir to prosecute the suit.
3. Plaintiff's case is that Harkaur could not get along with Premsingh. Soon after plaintiff's birth, the couple divorced. Having regard to the youth of Harkaur, her relations decided that she could not remain single. Therefore, she was married off to Prehladsingh. Relations, the Sikh community and everyone else looked upon them as husband and wife. They resided together and were received in society as such. In 1950 or thereabouts Premsingh passed away. Prehladsingh had no issues from Harkaur. A solution was found by Prehladsingh adopting the plaintiff. Plaintiff moved over to Bombay with Prehladsingh. They lived and worked together. In fact, the thrust to Prehladsingh's rise, was the drive and innovative ideas of the plaintiff. Defendant and her relations were set up by Indra Puri the wife of D.W. 3 Atamsingh to raise a false and malicious claim to the estate of Prehladsingh. Harkaur's divorce and remarriage and the adoption of plaintiff, were all valid. In an affidavit-in-reply to a notice of motion taken out by defendant, Harkaur has averred that she obtained a decree for divorce from Premsingh in the year 1936 and that this decree was granted by the District Court of Rawalpindi. Next it was averred that as per custom, she gave plaintiff in adoption to Prehladsingh at the Golden Temple of Amritsar.
4. Defendant's case can be ascertained from D.W. 1 Tejasingh's affidavit at Ex. D-7. Dharamsingh died in 1923 and soon thereafter his sons started residing separately. The joint family business also came to an end with a partition of the assets amongst the sons of Dharamsingh. In 1935-36 Prehladsingh raised money by mortgaging his house in Rawalpindi. The said money was utilised to start a restaurant in Bombay. That venture failed and in December 1936 Prehladsingh was back in Rawalpindi. Tejasingh's first wife was from Sukho and he used to visit his in-laws there even after the death of that lady and his second marriage to another woman. In the course of one such visit, Premsingh's mother had come to his Sukho in-laws house. She spoke of the unfeeling Harkaur having left her infant child at the mercy of the elements, remarking that even animals were more caring of their young. Premsingh, whom he had seen several times, was a simpleton and weakling who had no property or income. Harkaur, after deserting Premsingh came to live with Prehladsingh in 1937-38 as his affianced. There was no marriage between the two of them. Plaintiff was not adopted by Prehladsingh. Had Harkaur been the wife, and plaintiff the son of Prehladsingh, the Sirandana (Chadar) and Pagri Ceremonies would have been performed on them after the passing away of Prehladsingh. In fact, plaintiff would have lit the funeral pyre. That task was performed by him and plaintiff joined in as a longtime associate of Prehladsingh, and, that too at the instance of Atamsingh Puri (D.W. 3). Harkaur did not accompany the party that went to the Godavari at Nasik for the last rites of the remains of deceased. In fact, she had even resisted the keeping of the ashes for some time at Prehladsingh's residence. The claim for letters of administration by Harkaur or plaintiff was untenable.
5. Parties have adduced voluminous evidence in support of their stands. Both have been examined, and have, besides themselves, examined two close relations, An extra witness examined by defendant is to show that no ceremony or ritual personal to the worshipper, is allowed to be performed in the Golden Temple.
6. Issues arising for determination are given below with my findings.
Issues Findings
1. Whether Smt. Harkaur was the wife of Sardar Yes.
Prehladsingh Kohli?
2. Whether Kulwantsingh proves that he was validly Yes. adopted by Prehladsingh as a son unto himself?
3. Relief and costs? See order.
7. The evidence brought on record by either side is overwhelmingly indicative of Harkaur ceasing to live with Premsingh within a year or two after plaintiff's birth. This birth took place in the year 1933. By 1937-38, Harkaur had come to live with Prehladsingh. She moved to Bombay with Prehladsingh and lived with him to his dying day. Plaintiff came to live with Prehladsingh and Harkaur. Prehladsingh performed the marriages of plaintiff's children Amardeep @ Tony, Jasdeep @ Dolly and Gurubaxsingh. In the invitation cards issued on the occasion, Prehladsingh was named as an inviter and the parent or grandparent of the child getting married. This was not just a formality for the photographs taken on those occasions show Prehladsingh taking a prominent part in the festivities, and doing so with his siblings and their descendants etc. I will come to some of the important documents at a later stage. The backdrop sketched out above has to be seen in the light of some other features. It is not the defence case that Prehladsingh was married to someone or disinterested in permanent attachments. He is not accused of being a philanderer or leading a debauch's life. Prehladsingh was brought up by his paternal grandmother - his brothers, leaving this task to the old lady as far back as nineteen-twenties. Vaziridevi lived in an orthodox milieu and the naughty fifties and sixties were not even dreamt of to bewitch the then natives of this country, which included the area now gone into the formation of Pakistan. Loose-living there was, then, as it always has been. But it had not affected the middle classes and they certainly could not openly flaunt what society considered an immorality. Prehladsingh was not a spendthrift or wastrel. The 1936 borrowing on the foot of a mortgage, was not to go into a debauch. Tejasingh's affidavit at Ex. D-7 says the money went into the setting up of a hotel in Bombay. True, the venture failed. But Prehladsingh raised more money; this time selling his house. And the investment this time bore fruit. Early in life Prehladsingh has learnt a great lesson viz. that his brothers were not going to toil for him. Having prospered, he did not forget to aid the needy relations including Tejasingh. What has to be taken note of is that none of them or their descendants were invited to move in and live and work with him. Harkaur and plaintiff were not tucked away in some obscure corner, whether in Rawalpindi or Bombay. Harkaur lived openly with him at both the places and so did plaintiff in so far as Bombay is concerned. The deceased made no attempt to hush up their presence in his house as the defence witnesses have been forced to concede much against their wishes. His relations knew Harkaur, plaintiff and the latter's wife and children. They addressed Harkaur as, 'Chachi' or 'Mami' and plaintiff as 'brother' etc. etc. Defendant and her brothers etc., did not ever tangle with Harkaur or plaintiff during the lifetime of Prehladsingh. Not that relations between the two sides were always cordial.
8. A quick look at the plaintiff's compilation of documents will bear this out. Page 38 is a letter addressed by defendant to Prehladsingh and Harkaur inviting them to attend the death anniversary of her husband. There is a grievance that on the occasion of their last visit to Delhi they had not thought it fit to visit her, though their visit lasted 4 to 5 days. Defendant remarks that it 'all depends upon you. When I learnt about it I felt very sad.' The letter ends with good wishes to plaintiff, his wife and children. At page 42 is a letter of defendant's daughter Bappi addressed to plaintiff and his wife. Defendant pretends incapacity to be in a position to identify Bappi's handwriting and signature. The excuse is a defective eyesight ! Plaintiff has identified all the letters as being in the handwriting of those purporting to be the authors. Significantly, the letter Bappi wrote was a disclaimer of an intent to rupture relations with plaintiff and his wife after the passing away of Prehladsingh. Harkaur and plaintiff's wife are addressed as 'Mamiji' and 'Bhabiji' respectively i.e. wife of maternal uncle and wife of brother. Page 66 is a letter addressed by one Avtarsingh to Prehladsingh in which Harkaur is described as 'Bhabhiji'. Page 68 is a letter of D.W. 3 Atamsingh's wife Indra Puri in which Harkaur and plaintiff are, referred to as 'Aunty', 'dear brother'. At page 74 begins a long letter of lady named Billy, the younger sister of Indra Puri. Apparently, efforts by Billy to chum up with Prehladsingh had not been liked by plaintiff and family who had given expression to their resentment, which expressions were conveyed to Billy. Billy came out with a long diatribe against the unnamed persons (plaintiff and his family and Harkaur) who suspected every effort at friendliness to be motivated by mercenary considerations. Prehladsingh was to be assured that Billy's son Ruby would not stay a day longer than required. This shows that the boy's presence was unwelcome to Prehladsingh also. The letter is a typical instance of the never-far-from-the-surface hostility between children of brothers and sisters, which no amount of apparent amiability can conceal. Billy in another letter at page 78 dated 1-8-1982, describes plaintiff as a 'brother' and Harkaur as 'Chachi'. The writer of letter dated 16-10-1982 at pages 79 and 80 is none other than D.W. 3 Atamsingh. 'Harkaur' is referred to as 'Chachiji'. Page 82 is a letter of D.W. 1 Tejasingh conveying his congratulations to plaintiff, Mohinderkaur, Prehladsingh and Harkaur on the birth of the first two grandson. At page 88 is a letter addressed by Indra Puri to plaintiff after Prehladsingh's death. In this, Harkaur is described as 'Aunty'. The contents speak of an intimacy usually expected only between close relations. Shortly after Prehladsingh's death, his sister and possibly her husband addressed letter dated 11-5-1983 at page 94 to plaintiff and Harkaur. Plaintiff and Harkaur are praised for the pilgrimage made by them to Patna Saheb a Gurdwara referred as one of the Holies of the Sikhs - to fulfil the last desire of Prehladsingh. Next, letters received from the two are said to equal a darshan of Prehladsingh. At page 97 is a relation's letter where Prehladsingh and Harkaur are treated as man and wife by being referred to as 'Mamaji' and 'Mamiji'. Page 105 is a letter of Indra Puri sending a rakhi to plaintiff and describing him and Harkaur as 'Brother' and 'Aunty' respectively. In the letter at page 108, Bappi, the defendant's daughter, complains of delay in despatch of a letter to her. Though the fangs and claws are transparent, Bappi does not forget to address Harkaur, plaintiff and Mohinderkaur as 'Mamiji', 'Brother' and Bhabhiji'.
9. The next set of documents are a driving licence and passports and food card. These are to be found in the compilation at pages 1 to 7 and 15. In these documents taken long ago, plaintiff is described as Prehlandsingh's son. Ex. P-1 is the Memorandum of Articles of Association relating to Pritam Hotels Pvt. Ltd. Prehladsingh and plaintiff are shown as the owners of 100 shares each - thus negativing a theory mooted by Tejasingh about plaintiff being a mere employee or working partner of Prehladsingh. In these articles plaintiff is described as the son of Prehladsingh. At page 14 in the compilation is an invitation card issued on the occasion of the 'Graha Pravesh'. The inviters are Prehladsingh and Harkaur with plaintiff and Mohinderkaur accepting the subordination expected from junior members of any Indian Family. Ex. P-10 is a write-up in regard to the Silver Jubilee of Pritam Hotel. Kulwantsingh is described as a son of Prehlad Singh in the main article. Ex. P-11 is a summons describing plaintiff as the son of Prehladsingh. True, in the complaint the complainant says that plaintiff is describing himself as the son of Prehlandsingh 'who is the husband of Mrs. Premsingh'. However spiteful, this is a concession of Harkaur's marriage to Prehladsingh. At page 25 the same complainant says Prehladsingh is the father of plaintiff and both are looking after a building which was known as 'Dharamputra'. These are documents of 1968. Ex.P-13 is another writ-up relating to Pritam Hotel wherein plaintiff is described as an 'industrious son of an enterprising father'. A reference to the invitations and photographs of the marriages of plaintiff's children has already been made. Ex.P-15 are certificates issued by Gurdwara Sachkhand Huzoor Saheb of Nanded on performances of Akhand Path and Bhog at the bidding of Prehladsingh, his wife Harkaur and family. Exs. P-16 and P-17 show medication undergone by Harkaur as wife of Prehladsingh. Ex.P-14 are obituaries published on the occasion of Prehladsingh's death. One of these is issued in the name of Harkaur and Anupkaur, being the wife and sister of the deceased. This was in the Indian Express. The publication in Mid-day was in the names of plaintiff and Harkaur as son and wife. The Evening News intimation was under the names of plaintiff, Harkaur, Amardeep and Gurubax-their relationship with the deceased being son, wife and grandsons. In the Clarity obituary, plaintiff and Harkaur are described as Prehladsingh's son and wife. Ex.-18 is an LIC intimation to plaintiff of the Corporation agreeing to pay him the maturity value of a policy taken out by Prehladsingh. Ex.P-19 are minutes of the meetings of the directors of Pritam Hotel-the participants being Prehladsingh and plaintiff.
10. The oral evidence, is, if anything, decisively in plaintiffs's favour. Forget the evidence of plaintiff and his two witnesses, even defendant and her witnesses are compelled to accept that they, their relations and the world at large treated Harkaur and plaintiff as the wife and son of Prehladsingh. Tejasingh goes on to support his Ex.D-7 version, though not entirely. He does not repeat the plea of Premsingh being a meek and never-do-well. Harkaur is said to have been Bhutsingh's mistress and Bhutsingh is said to have sent her on to Prehladsingh with an intimation to Tejasingh! Tejasingh does not tell us whether this information was passed on by him to his besotted brother Prehladsingh. Prehladsingh's depravity angered his siblings and so much flak did he attract for his immorality, that he migrated to Bombay. But his strait-laced brother saw nothing wrong or disreputable when Prehladsingh turned up at his second marriage! In 1969, he came to Bombay for the first time to attend the Silver Jubilee celebrations of the Pritam Hotel. On that occasion he had stayed with Prehladsingh Harkaur's brothers Sukhdeosingh and Jagtarsingh had beaten up Prehladsingh and but for the intervention of the witness, the victim would have died. If this incident had really taken place, Prehladsingh would have lodged a report and/or never forgiven Harkaur and the plaintiff. They would have been driven out of his house, for all said and done they had no claims on him, as Tejasingh would have us believe. Not only did this not happen, the affection between the three went on increasing. Marriages of plaintiff's children were performed by Prehladsingh. At these marriages Prehladsingh invited his relations. Tejasingh, an adept at telling lies, says Prehladsingh invited him to attend these marriages as being those of his working partner's children. But if that were so, Tejasingh would not have responded to the invitations. Tejasingh's financial position after he left Rawalpindi was never such as to allow him to spend money freely. He admits that Prehladsingh helped him out with monetary aid on a number of occasions. It is difficult to believe that Prehladsingh in his dealings with Tejasingh-the two brothers being no strangers to each others doings and thinking - would try to cover up his relationship with plaintiff. He would describe plaintiff as his 'son', 'step-son' or 'son of his mistress', but never a 'working partner'. Tejasingh's capacity to continue lying is hemmed in by limitations. He has to admit that plaintiff arranged for the cremation of Prehladsingh even as he asserts that he had forced plaintiff to defer the same until the siblings and other relations reached Bombay. Plaintiff was present at Godavari River when the last remains of Prehladsingh were immersed. Much is made of Ex.D-3 i.e. the invitation issued by Prehladsingh for a death anniversary observance of Dharamsingh. This shows nothing more than what it is viz., an invitation sent by Prehladsingh to such persons as he thought fit to invite for the ceremony. Tejasingh says he had performed the first death anniversary ceremony of Prehladsingh and refers to Ex.D-5 as being the invitation issued by him for that occasion. Death anniversary prayers can be arranged by anyone-son, brother or even a well-wisher. We have the bare word of Tejasingh supported by Atamsingh and defendant about there being no observance of the Pagri and Chadar ceremonies. For one thing, these are interested person whose main assertions are at variance with their conduct of decades and the involuntary admissions they have been forced to make. Tejasingh says there was no sign of plaintiff in 1956, when he had come to Prehladsingh's Savoy Buildings residence. One of the plaintiff's passports i.e. the one issued on 31-10-1956, shows exactly the contrary. Now at that date plaintiff had no reason to fabricate evidence. To keep up pretences, Tejasingh says that he saw plaintiff for the first time in 1962-63 at the Pritam Hotel Silver Jubilee celebrations. Even so, Tejasingh maintains that he does not know why plaintiff was in Bombay. This flies in the face of the press write-ups issued on the occasion proclaiming plaintiff to be the worthy son of a worthy father viz. Prehladsingh. Carried away by his own sentiments, Tejasingh states that he has engaged a lawyer in the suit as he is the only heir of Prehladsingh. The truth is that he did not file a caveat, much less engage an Advocate. He admits that Indra Puri is his constituted attorney who informed him of dates of hearings. This justified plaintiff's allegation of Indra Puri being behind the screen string-puller. Witness was confronted with Ex.D-7 where plaintiff has been admitted to be present at Prehladsingh's cremation and joining in the stoking of the flames that enveloped the mortal remains of the deceased. The story of Harkaur deserting her babe-in-arm is not corroborated by anyone. Conveniently, all the characters concerned are no longer alive. Tejasingh does not tell us why and how he remembers an event and talk which took place about 50 years ago. Premsingh's residence was far away from that of Tejasingh's in-laws. His mother had no reason to seek out Tejasingh's mother-in-law to confide in the perfidy of Harkaur. Forgetting his cues, Tejasingh admits that Premsingh's ill-treatment was the reason for Harkaur leaving his home. This belies the Ex.D-7 description of Premsingh as a 'simple and weak person'. Tejasingh having denied that plaintiff was anywhere in sight at the home of Prehladsingh till 1962-63, is still forced to concede that Mohendrakaur was living in the same house, which fact, so Tejasingh would have us believe, Harkaur was trying to conceal from him. This was way back in 1956 which only confirms the correctness of plaintiff's address given in his 1956 passport. Having described Harkaur as Prehladsingh's mistress, witness admits that Exs. P-2, P-3 and P-4 which are invitation cards issued by Prehladsingh, described her as his wife. Exs. P-5A to P-5E show Tejasingh and the other relations of Prehladsingh gleefully participating in the weddings of plaintiff's children. The pretence that they were the children of Prehladsingh's working partner is dropped when witness is confronted with invitation cards Exs.P-3 and P-4 which brought Tejasingh to the ceremonies. Tejasingh admits to Harkaur participating in ceremonies connected with his adopted son's marriage. She had come with Prehladsingh who was an invitee. Peeved at being excluded from those whose names appeared in the obituaries, Tejasingh got certain other names into some of the notices. What is significant is that he did not insist upon or object to Harkaur and plaintiff describing themselves as the wife and son of the deceased in the said notices. That the pagri ceremony for plaintiff was performed to his knowledge is also evident from his involuntary answer that at the crucial time, he 'drew back'! Tejasingh has never been well-off after he migrated to India. At one stage he was in the employ of his sister Anupkaur managing her farm in Uttar Pradesh. Greed therefore appears to be the trigger behind the many lies invented by him to malign plaintiff and Harkaur. The all too pervasive truth and bitterness could not stop him from blurting out the truth.
11. D.W. 3 Atamsingh is the husband of Indira Puri and this lady's great interest in wrecking plaintiff is evident from D.W. 2 Josh's admission that he has been brought to Bombay by Indra Puri. She has footed the travelling and hotel expenses of Josh. If his wife be so active in the cause of defendant, one cannot expect the plain truth from D.W. 3. He claims to know for a fact that there was no divorce proceeding in the Rawalpindi District Court in the 1930s. Had there been one he would have surely learnt of it for he was at the Bar in that decade. This is not a believable claim for Atamsingh could not have been all that prominent and knowledgeable a lawyer in the 1930s. Prior to Harkaur coming to live with Prehladsingh, Atamsingh did not know Harkaur. It is ridiculous to believe that he knew everything that was going on in the courts while he was practising and that too, as a newcomer at the Bar. Witness does not know when to stop for in his examination-in-chief itself comes the gem that in 1981 when he stayed with the deceased, that person and Harkaur were living in separate rooms. His hatred for plaintiff comes through in the reply that he had not attended the weddings of plaintiffs children, as he had 'nothing to do with the matter'. The same went for Pritam Hotel Silver Jubilee celebrations. Realising the faux pas, witness quickly corrected himself to say that he could not come for the Pritam Hotel function. Ex.D-9 which he has produced as an invitation from Prehladsingh relates to some Panvel work. He speaks of plaintiff contrary to Prehladsingh's wishes trying to foil the invitation that he came to Bombay. It was too late for by the time he came, Prehladsingh has passed away. Witness says nothing of plaintiff casting logs to help at the cremation of Prehladsingh's corpse. This is surprising seeing that Tejasingh speaks in Ex.D-7 of Atamsingh inviting plaintiff to assist in the task. Next, witness speaks of Prehladsingh's unhappiness with Harkaur, plaintiff and his family, Prehladsingh desired his wealth to be used for a charitable trust. Atamsingh went to various lawyers. Some firm of Solicitors have made available the papers at Exs. D-1 and D-2 to defendant. The maximum that can be said from this bunch of papers is that there was some rift between plaintiff and Prehladsingh towards the end of his life. This does not make Prehladsingh a paramour of Harkaur, or plaintiff, the son of his mistress. Atamsingh's actions show him stoking the rift thus establishing his reputation as a trouble-maker. What is more significant is, that he quietly made over to plaintiff the keys of a secret locker hired by him and Prehladsingh after the latter's death. That is more eloquent than the many assertions to the contrary made by the witness. If plaintiff were not the son and heir, Atamsingh would have dared him to do his worst. He says that after he had come across a partnership deed where plaintiff described himself as Prehladsingh's son, he had brought this to the notice of Prehladsingh and that gentleman's reply was that the said description was without his permission. In all conscience. Prehladsingh should have sent for and berated plaintiff in the presence of the witness or given him a notice. Witness says that in 1982 Prehladsingh was advised by Tejasingh and defendant's son to resolve differences between him and plaintiff. If plaintiff were a working partner an employee or worse, the mere son of a mistress of Prehladsingh, the advice to the deceased would have been to drive out the ungrateful wretch of a plaintiff from his home. The couple's proclivity to litigation is evident from his admission that his wife and her sister had filed a suit against their brother for a share in a house of his father-in-law. He himself filed suit against plaintiff after Prehladsingh's death to recover money allegedly owing to him by the deceased. In cross-examination, he says that plaintiff was sued as a person claiming to be the legal representative of deceased. Witness who had feigned a defective vision when faced with inconvenient pictures and letters, saw no difficulty in repudiating receipts Exs. P-22, P-23 and P-24 which describe plaintiff as the son of Prehladsingh. The signatures on the receipts have a striking resemblance to his admitted initials on Ex.P-21. Ex.P 21 is admitted by Atamsingh. In cross-examination, witness admitted that he was not invited to the marriages of plaintiff's children as also the Pritam Hotel Silver Jubilee Celebrations. This shows even the hospitable Prehladsingh keeping the witness at a safe distance from him, though inviting all other relations. Averse to admitting anything in plaintiff's favour, witness could not deny Ex.P-5G showing him place a sweet in the mouth of plaintiffs younger son. He knows that this answer has opened a Pandora's box. Therefore he feigns ignorance about the identity of the lady next to him in the photo at Ex.P-5H. Of course, he knew that Mohendrakaur was plaintiffs wife. But he could not say if she was the lady next to him in Ex.P-5H. Confronted with his wife's letters to plaintiff, witness falls back on the old dodge of being afflicted with a defective vision! Unlike Tejasingh, Atamsingh admits that plaintiff together with his wife and children were always living with Prehladsingh whenever he came to that person's Bombay house. Inconvenient questions, witness meets by 'I do not know' or 'I do not remember'. But some admissions come out one such being that plaintiff was present when Prehladsingh's ashes were immersed.
12. D.W. 3 who is the defendant sticks to her line in the examination-in-chief, only to admit the contrary when cross-examined. She claims to have made known her disapproval of Harkaur to Prehladsingh. But she admits that the pair whom she refers to as 'husband' and 'wife' were quarrelling for 10 years! She was invited by Prehladsingh to attend Tony's wedding. But this was because he was the son of a hotel employee. She also participated in Dolly's marriage, and, at the invitation of Prehladsingh. She used to address letters to Harkaur. Her daughters used to send Rakhis to plaintiff. Conformed with her daughter Bappi's letter (Ex.P-2), she also conjures up the excuse of having a failing eyesight. She could read one letter which was in her handwriting. This selective capacity of the visual faculty appears to be in the nature of a cue given to all the defence witnesses when faced with inconvenient documents. The truth outs when she says that Harkaur should have attended the ashes immersion ceremony. In other words though a widow, Harkaur had failed in the performance of a wife's duty.
13. What of D.W. 2 Puransingh Josh? He speaks of the Maryada (does and donts) of the Golden Temple at Amritsar. All that he says is that rituals relating to marriages and adoptions are not permitted within the Golden Temple. But people do visit the Temple after these ceremonies for a thanks giving or as an expression of gratitude for favours obtained. Witness has been brought to Court by Indra Puri and is further a political ally of hers. All the same his evidence has very little bearing on the crucial questions.
14. The apparent or to all appearances feature, having been set out, it will now be necessary to touch upon the burden of proof aspect. First, as to the nature of relationship between Harkaur and Prehladsingh and then that between plaintiff and Prehladsingh. There is a very strong presumption in favour of marriage and against concubinage. The Supreme Court in Gokal Chand v. Parvin Kumari, A.I.R. 1952 S.C. 231 observed --
'continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage.'
True, the same authority goes on to say --
'but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them.'
Plaintiff's evidence in regard to a divorce between Premsingh and Harkaur rests upon hearsay. The witnesses testifying are vague as to what exactly the form of divorce was. Harkaur in her affidavit says the divorce was the result of a decree. No copy of such a decree being placed on record, the affidavit avers that Rawalpindi now being in a foreign country, such a document is neither traceable nor available. What the state of preservation of judicial records in Pakistan be, is difficult to say. In the best of circumstances, people so placed as the plaintiff is, would find is extremely difficult to search for and trace a record of a proceeding which took place 40/50 years ago. The difficulties would multiply a hundred-fold where the records be in a foreign country. In a situation of this type a Court would be justified in taking recourse to the presumption of marriage based on long cohabitation. The assertion of defence witnesses that a marriage did not take place is that of persons who have a vested interest in paltering with the truth. Tejasingh, Atamsingh and defendant have shown scant regard for the truth and much of what they say is a negation of inferences arising from letters writing by them and their near and dear ones. Atamsingh's claim that a divorce petition between Harkaur and Premsingh--if initiated--could not have gone unnoticed by him is too tall a claim to be accepted. He is Indra Puri's husband and this lady's great interest in the defeat of plaintiff is no secret. Puransingh Josh (D.W. 2) has been brought to Court by her. Her husband Atamsingh, in an unguarded moment, admitted that the lady has filed a suit against her brother for a share in her father's property. Atamsingh filed a suit against plaintiff as representing Prehladsingh's estate for recovery of money owing to him by the deceased. Feigning a defective vision when confronted with letters describing Harkaur and plaintiff as the wife and son of Prehladsingh, he found no difficulty in refuting his signatures on receipts showing payment of the decretal amount by plaintiff. The refutation was because the receipts describe plaintiff as the son of Prehladsingh. Thus the evidence led by defendant to negate a marriage qua a marriage rests upon witnesses whose interestedness and lack of regard for the truth makes it dangerous to place any reliance upon them. Plaintiff and his witnesses have shown a higher regard for the truth. Plaintiff's saying that Harkaur and Prehladsingh lived as man and wife and were received in society as such is undeniable even by so strong a partisan as defendant or Tejasingh or Atamsingh. The letters and photographs placed on record have an irrefutable force. The two witnesses examined by plaintiff are a nephew of Harkaur and a Cousin of Premsingh. Neither has a personal axe to grind in the litigation. P.W. 2 Santoksingh is not exactly a blood-relation of Harkaur. Harkaur's sister is his step--mother. Isherkaur may be Kahansing's wife. But she is also Premsingh's cousin. She certainly would find no pleasure in supporting the claim of a woman who walked out on her cousin within two to three years of their marriage, leaving him to rear up a babe-in-arms. The unspoken attempt to portray her husband Kahansingh as a manipulator has no substance. It is not the defence case that Kahansingh was responsible for Harkaur latching on to Prehladsingh. On the other hand, Tejasingh says this was the doing of Bhutsingh a neighbour with whom once Harkaur lived and who tiring (possibly?) of her, sent her on to Prehladsingh. Bhutsingh, Premsingh's mother and possibly Tejasingh's in-laws from Sukho are long since dead to explain defendants failure to examine more knowledgeable witnesses. Person to person, plaintiff's witnesses are entitled to greater credence. Their testimony conforms to the inferences arising from 'habit and repute' so felicitously explored in Bhadursingh v. Kartarsingh, A.I.R. 1950 MB 1. Defendant therefore falls back on the theory of divorce being unknown to Khatri Sikhs to which fold Prehladsingh, Harkaur, plaintiff and Premsingh etc. all admittedly belong. These Sikhs were Hindus with a history of adherence to orthodoxy. The material submitted on the subject is plentiful and somewhat contradictory.
15. First, a word as to Sikhs. The religion followed by them is known as Sikhism. It was founded in the late 15th Century by Guru Nanak. The following is taken from Khuswant Singh's note on Sikhism in Encyclopaedia Britannica :
'Sikhs are disciples of their ten Gurus (religious teachers), beginning with Nanak and ending with Gobind Singh. Sikhism drew its inspiration both from Bhaktas and Sufis.... The main consequence of Sikh belief has been a gradual breaking away from the Hindu social system and the development of Sikh separatism.... Since every Sikh is entitled to read the scriptures, Sikhs do not have a priestly class similar to the Brahmins in Hinduism....Sikhs are based into three broad categories based largely on ethnic differences : Jats (agricultural tribes), non-jats (erstwhile Brahmins, Kshatriyas and Vaisyas--the three highest groups of the traditions Hindu social system and Mazahabis (untouchables). The Jats, though Sudras (lowest group inside social system) are pre-eminent, the Mazahabis, though converts from Hindu out castes (untouchables outside the caste system) and still discriminated against, have a much higher status than untouchables in Hindu society....A sikh marriage (karaj) requires the groom and the bride to go around the Adi Granth four times to the chanting of wedding hymns....The three tiered caste structure among the Sikhs viz. Jats, non-Jats and Mazahabis, is in a state of flux. Among the educated urban classes, it is fast breaking up, but in the villages a form of apartheid persists, excluding Mazahabis from community wells.'
The law, and a great deal of it is Judge made, presents a baffling picture. The earliest decision on the subject is Doe dem Kissenchunder Shaw v. Baidam Beebee, 1815 (2) MD 22, which applied the Hindu law to Sikhs, ....but only, in the absence of custom varying that law. In Bhagwan Koer v. J.C. Bose & others, 5 Bom.L.R. 845, the Judicial Committee reiterated this principle. The first decision to recognise the fallacy of the traditional view came oddly enough in a case concerning Udasis whom the Sikhs stigmatised as Hindus, and, who themselves in that case wanted to be recognised as Sikhs. Zafar Ali, J., speaking for the Division Bench in Mahant Basant Das v. Hem Singh, I.L.R. 1925 Lah 275, mentioned the unambiguous claim of plaintiffs to be Singhs or Sikhs in contra-distinction to Hindus. Counsel representing the defendant tried to maintain that Udasis also are Sikhs though not Singhs or followers of Guru Gobind Singh. 'Sikh' and 'Singh' were not interchangeable terms, though in those times the two were so made to appear. The change in the observances and beliefs of the Gurus was described thus by the learned Judge :
'Guru Nanak condemned the exaggerated observance of caste and received all men as his disciples without any regard to caste but he did not attempt to abolish it and married his won children within his Khatri caste. Guru Gobind Singh on the other hand, abolished caste altogether and admitted untouchables also into the pale of 'Singhism' '.
This decision establishes the distinction between Sikhs and Hindus. It is well to remember that even Hinduism was no legal monolith prior to the introduction of the reformative legislation, popularly known as the Hindu Code. There were the main divisions viz., the schools of law known as Mitakshara and Dayabhaga. The former was divided into four main subdivisions with each of these having a number of variations. A great source of law which affected all communities was custom. To this aspect of the question I shall revert to at a later stage.
16. Defendant relies on Bhagwan Koer v. J.C. Bose and another, 5 Bom.L.R. 845, where the Judicial Committee of the Privy Council affirmed an earlier decision of Sikhs being governed by the Hindu Law. Closer to the case at hand is Labh Singh v. Gurcharan Singh, 19 IC 730, wherein it was held that Khatrie of Kauntrila in Gujar Khan Tahsil of Rawalpindi District followed Hindu Law and not agricultural custom in the matter of alienation and inheritance. Cited with approval in this decision was Kartar Singh v. Mehtab Singh, 94 P.R. 1898, which pertained to Khatris of Sukho--the very Sukho, from which Premsingh came. The ratio laid down in both the cases is that unless it be shown that they were governed by custom, Khatris were to be held as governed by Hindu Law. In fact in Labh Singh's decision (supra) it was observed that there was not much to distinguish the Khatris of Rawalpindi from those of the neighbouring villages. So it was said in a decision rendered on December 7, 1912. It may be that Rawalpindi town and interior--could not have undergone much of a change in the 1930s. The great diversity of tribes and races with their corresponding diversity of laws and customs confronted the British rule who were anxious 'to uphold Native institutions and practices so far as these were consistent with the distribution of justice to all cases' (Taken from Bhandari J's opinion in Piara Lal v. Atma Singh, in 1951 (53) PLR 335. They set about making a careful study of the custom of the population which differed materially from prescriptions of Hindu and Muhammadan Law. That custom played a vital role in matters like succession, alienation and incidental matters led to the enactment of Punjab Laws Act, 1872. Section 5 of that enactment declared the primacy of custom, making it the primary rule of decision, save where it was contrary to practice and good conscience. The personal law was to be the 'other rule of decision'. Piara Lal (supra) is a treasure house of the vicissitudes, the litigants underwent in the unending struggle for primacy between the two sources of decision. But the conclusion was that there could be no generalisation, for it all depended on the facts and circumstances of each case. Construction of entries made in the Riwaj-i-am has itself developed into a mystique of its own. In the present case we do not know whether the forbears of Dharamsingh, Harkaur, Premsingh were agriculturists or otherwise. Dharamsingh it is said was a Commission Agent. Tejasingh says Prehladsingh left Rawalpindi because his association with Harkaur brought him a bad name. Atamsingh says Prehladsingh left Rawalpindi because he was much troubled by Premsingh as also Harkaur's father. In Ex.D. 7 Tejasingh describes Premsingh as a simple and meek person. In other words, he could not have troubled Prehladsingh or Harkaur. That Harkaur's father could have felt peeved at her association with Prehladsingh is belied by P.W. 3 Isherkaur's version that the elders were very much a party to the resolve to get the girl married off to Prehladsingh. It is difficult to believe that in the strait-laced decade of 1930s and that too in a small group like the Sikhs of Rawalpindi so brazen a disregard of propriety could have been displayed by Prehladsingh and Harkaur. Had they flouted conventional morality so openly, their relations would have severed all connection with them. Yet nothing of that nature happened. Even the haughty defendant, Tejasingh, Atamsingh, Indra Puri and dozens of relations made it a point to respect not only Prehladsingh, but also Harkaur and plaintiff. Prehladsingh had no reason to raise Harkaur to the pedestal of a wife if she was his concubine. He owed nothing to her - quite the contrary. In any case, he had no reason to give succour to plaintiff. Plaintiff was a major and he could earn his own living. Despite a tiff in the closing years of Prehladsingh's life he did not dream of pushing out the duo from his home. Tiffs between husband and wife, father and son- even if the latter be an adoptee, are a common incident of life. If Harkaur was an adulteress- which she had to be if she had not been divorced by Premsingh -that person would have certainly harassed Prehladsingh. Poverty is no disincentive to litigiousness as is evident from the tendency of those residing in the country side. Premsingh could not have been meek and submissive for we have Tejasingh's assertion that he treated Harkaur with cruelty. His cousin Isherkaur would not testify to a divorce being obtained by Harkaur unless that were true. The divorce would not have been sought or granted unless that was the rule amongst the Khatris of the kind to which the parties belonged. D.W. 2 admits that divorcees amongst Sikhs get remarried. Witness also goes on to say that he has not heard of divorce proceedings amongst Sikhs. The contradiction is enough to rule out Josh as an expert on customs amongst Khatri Sikhs. Khatris are to be found amongst Hindus, Musalmans and Sikhs (see 'Punjab Castes' by Denzil Ibbetson, published by Cosmo Publications, 1st Reprint 1981 at page 248). Except for the perception of a linkage by ancestry there is little in common between the subgroups of the Khatris. Ibbetson quotes Sir George Campbell's Ethnology of India vide the position of Khatris to show their wide dispersal over territory ranging from Punjab to Afghanistan to Turkestan to Calcutta. And migration is a recognised mode for renunciation of one school of law for another. Bhadursingh v. Kartarsingh, A.I.R. 1950 MB 1 sees the Sikhs through the eyes of a Court removed from the province of their origin. There is no reason to exclude such an appraisal in the case of Prehladsingh also. Says Chaturvedi, J., in this case :
'Sikhism is a proselytising religion and Sikhs are disposed to extend recognition to all permanent unions between a male member of their community and a woman of another caste. It is therefore not proper to apply general principles of Hindu Law of Marriage to the parties who are Sikhs.'
The argument that Khatris, whether Sikhs or Hindus, had Brahminis pretensions therefore till 1956 followed the scriptural prescription of a marriage being an indissoluble union, cannot be accepted. Piara Lal (supra) shows the great diversity even in relation to the regenerates. We do not know to which class of Khatris the ancestors of parties belonged. What we have for a fact is that the union between Prehladsingh and Harkaur lasted right from 1938 to 1983, that it originated openly and remained so all their lives, that even the siblings of Prehladsingh not to speak of the general community and society, treated them as husband and wife, that there was no reason for Prehladsingh to remain a bachelor though he had an alleged mistress and that the belated discovery of Harkaur being a mistress and plaintiff less than a son of Prehladsingh, coincides with a latter day determination to get a finger in the pie after Prehladsingh's death. Prior to Prehladsingh's death Harkaur was 'Chachi', 'Mami', 'Aunty' while plaintiff was 'Bhayya', 'Brother' and the usual affectionate or reverential figure that every rich person is to his poor relations. The faith which the parties follow does not prohibit divorce or remarriage of females. As to the custom, the bewildering variety of Khatris (see Piara Lal (supra)) makes it impossible to ascertain which slot the parties occupy. The say-so of interested or ignorant witnesses is an unsafe guide to go by. A very important feature of this case is that no attempt has been made by Harkaur or plaintiff to conceal the first marriage of the former and the latter's paternity. Were they desirous of so doing, they could have easily got away with it. This is because defendant does not possess a marriage or birth certificate. The low credibility of Tejasingh, Atamsingh and defendant could not have been improved by the overwhelming documentary evidence that has been so effectively used to demolish the defence case. That plaintiff and his witnesses should still adhere to the truth speaks of their respect for the oath. Absence of clearer evidence to prove the marriage of Prehladsingh to Harkaur and his adopting plaintiff is understandable. The time lag and the changes brought about by the partition of the country explain this absence. The many admissions of defendant and her witnesses as also the subsequent conduct of all concerned bear out plaintiff's version.
17. The issue of adoption requires a separate discussion. Defence Counsel rightly contends that a very heavy burden rests upon one setting up an adoption, for that displaces the natural succession to property. Dal Bahadur Singh v. Bijai Bahadur Singh is authority enough for this principle. Rituals performed at an adoption differ from group to group. So far as the Sikhs are concerned Tejasingh has adopted a son. The ceremony wherein he adopted a son must have involved the simple rituals he relates viz (1) tying a turban to the head of the adoptee, (2) natural parents placing the adoptee in the lap of the adopting parents and (3) Akhand Path. Counsel for plaintiff argues that amongst Sikhs adoption is secular in character, the object being to appoint an heir. This, says learned Counsel, is in contradistinction to other groups where adoption is primarily a religious act intended to confer spiritual benefit on the adopter. Hem Singh v. Harnam Singh, : [1955]1SCR44 , is relied upon in support of this proposition. The authority deals with a certain class of Jats of Punjab. Khatris may not be governed by the same rule as Jats. Whatever be the variations in the rituals associated with an adoption, a basic requirement is in relation to the ceremony of giving and taking. This alone can have the effect of transferring the boy from one family to another for that is what adoption is about see Lakshman Singh v. Rupkanwar, : [1962]1SCR477 . That is what plaintiff has to establish viz. that he was transferred from the family of Premsingh to that of Prehladsingh, and, in accordance with the basic principles governing the feature of giving and taking.
18. Plaintiff's version that his adoption was due to series of coincidences viz., Premsingh's death, Prehladsingh being issue less and him and Harkaur both wanting plaintiff to fill up the void in their lives, is fully consistent with the subsequent happenings. Plaintiff came to live with the couple. He proclaimed himself and was accepted to be the son of Prehladsingh. There was no pretence of Prehladsingh being plaintiff's biological parent. This was known to Prehladsingh's siblings and their children. Yet never did they treat plaintiff as a stepson of Prehladsingh or worse still the son of Prehladsingh's mistress. In fact even after the death of Prehladsingh they went on urging him not to sever the kinship. The 'bhayya', 'uncle' are was still in force. Of course, the doctrine of factum valet will not apply to cure the lacuna in an adoption if the omission or contravention is of a mandatory rule. But it does belie the spirited denials of defendant and her witnesses about plaintiff not having been adopted. The blatant falsehoods in describing plaintiff as a servant or working partner of Prehladsingh cannot carry conviction -not even to those, who have uttered the same. Plaintiff and his witnesses speak of the meeting where it was decided that he would be adopted by Prehladsingh and the ceremony. There are discrepancies in the accounts given by them as they must be, seeing the long interval between the event of 1950-51 and the recording of evidence in 1991-92. A full forty years have intervened and it would be unnatural to expect the witnesses to concur in every particular. As said earlier, P.W. 2 Santoksingh and P.W. 3 Isherkaur are certainly more disinterested in plaintiff than the witnesses lined up for the defendant by Indra Puri. Much is made of plaintiff saying that the giving and taking ceremony were performed at the Golden Temple where the Maryada prohibits the performance of any such ceremony. But plaintiff states that it was the final ceremony which was performed at the Temple. This could have been a thanks giving visit as is very common amongst Sikhs and that is conceded even by D.W. 2 Josh. It is contended that the giving into adoption by Harkaur was illegal if it be held that Prehladsingh was her second husband. This contention has the support of Ram Sakhi Kuer v. Daroga Prasad Singh, : AIR1981Pat204 . But there is again the need for caution in applying the principles of Hindu Law in its prinstine form to people hailing from Punjab. One permissible test for ruling upon the validity of the adoption is the attitude of all concerned. Plaintiff and Prehladsingh accepted each other as son and father. They were so accepted by relations on either side and the world at large. Even after Prehladsingh's passing away, Tejasingh did not think of plaintiff as a usurper. He wanted the old ties to be preserved. The old ties were not those between Prehladsingh's brother and his ex-employee or working partner. In fact defendant admits to plaintiff being looked upon as Kohli. She of course ascribes this to a mask donned by plaintiff to mislead the people. Atamsingh who knew of plaintiff being the natural son of Premsingh, quietly made over the locker keys to plaintiff. The locker stood in the joint names of Atamsingh and Prehladsingh. He realised the futility of disputing plaintiff's status though he had stirred up some ill-will between the father and son. Assuming that Prehladsingh had the desire to settle his property upon a trust, that would not deprive plaintiff of his status as an adopted son. Natural sons can be disinherited and so can adoptees. The acceptance of plaintiff as a son by Prehladsingh, by relations on either side and by the world at large, creates a presumption that the giving and taking were by person admitted to be competent to do so. That the adoption was accepted even after Prehladsingh's death, fortifies the presumption. Not that plaintiff loses if it be the legal position that Harkaur after her remarriage, ceased to be plaintiff's mother for the purpose of officiating as a giver of a plaintiff in adoption. Harkaur died in 1988. As Prehladsingh's widow, she was the exclusive and absolute owner of Prehladsingh's estate. Upon her death her estate devolved upon plaintiff. To that effect is the decision of this High Court in R.A. Patil v. A.R. Redekar, : AIR1969Bom205 . There, a Hindu widow inherited lands from her second husband as sole heir. A son to her from a previous marriage was held to succeed to her property under section 15 of the Hindu Succession Act, 1956 in preference to relations of her second husband. And after Premsingh's death even if she was Prehladsingh's mistress, she was the only person competent to give plaintiff in adoption. Thus the adoption of plaintiff was valid on both counts : Firstly, its acceptability by Prehladsingh, relations on either side and the world at large; secondly, assuming that Harkaur's marriage to Prehladsingh is not proved or was not lawful, she continued to be Premsingh's widow and as plaintiff's only surviving parent, had the authority to give him in adoption. Alternatively and assuming the adoption to be invalid or even an invention of plaintiff, he would succeed to the estate as Harkaur's heir.
19. There survives now the question of costs. Defendant has not merely questioned the legitimacy of Harkaur and plaintiff. She has resorted to falsehoods and examined witnesses who have shown scant regard for the truth. But the issues arising in the suit have been difficult ones to resolve. Having regard to his latter aspect of the matter, parties should be left to bear their own costs.
O R D E R
20. Letters of Administration do issue to the plaintiff as heir and legal representative of Harkaur in respect of the property of the late Prehladsingh having effect throughout the State of Maharashtra, subject to usual terms. Parties do bear their own costs.