1. This Appeal under section 384 of the Succession Act, 1925 arises out of an Order dated 10-4-2001, passed by Abdul Rasool Memon, learned IV Additional District Judge, Hyderabad, whereby, Succession Application No,46 of 1998 was dismissed. Briefly stated the facts are that, the appellant, adopted daughter of late Mary Mariam Sen, applied for the grant of letter of administration in respect of the property and estate left behind by intestate Christian adoptive parent Mary Mariam Sen. It was disclosed in the petition that deceased has also left behind real daughter Mrs. Phyllis Merlin Xavier. Succession Petition was objected to by the real daughter on the ground, inter alia, that adopted daughter, not being legal heir, would not succeed to the estate of the deceased. Evidence was led by both the parties, out of the pleadings following issues were framed:-
(1) Whether the succession application is not maintainable?
(2) Whether the succession application is time-barred?
(3) Whether the petitioner has no cause of action?
(4) Whether the petitioner has got any entitlement over the bungalow No,19/B, Block-E Unit No,6, Latifabad, Hyderabad, left by the deceased Mary Mariam Sen?
(5) Whether the petitioner has any locus standi in present succession application being an adopted daughter of the deceased? If so, is she entitled to get her share from the estates of the deceased?
(6) Whether the opponent/respondent is also an adopted daughter or not?
(7) What should the order be?
(8) Learned Vth Additional District Judge, Hyderabad, vide impugned order dated 10-4-2001 decided the Issue No,1 against the petitioner and dismissed the petition. Mr. Jhamat. Jethanand, learned counsel for the petitioner contended that under the Christian Personal Law the adopted child is entitled to half the share in the property left by the instate Christian as per Code of Canon and Laws reported in Halsbury Law of England. Learned counsel for the respondent maintained that the Christian in Pakistan are governed under Succession Act, 1925 and are not at all governed under the Code of Canon or laws as reported in Halsbury Law of England. It was further contended that the Code of Canon, in any case, applies to the clergy and layman holding ecclesiastical office and not Christian in general. I have heard the arguments of learned counsel for the parties at great length, perused the material available on record.
2. Engaging question that has arisen in this appeal is, whether under the law governing succession in Pakistan, a child adopted by a Christian would succeed> to the estate of adoptive parent.
3. Succession, though not defined in the Act itself means the devolution of right, title and interest in the property of the deceased unto his kindred in accordance with law regulating such devolution and distribution of property. Whether adoption ipso facto creates any relationship of kinship between the adopted child and adoptive parents is to be examined. Adoption m legal parlance in terms of Black's Law Dictionary (Sixth Edition) is defined as follows:- Adoption.--Legal process pursuant to state statue in which a child's legal rights and duties towards his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted. To take into one's family the child of another and give him or her the rights, privileges, and duties of a child and heir. The procedure is entirely statutory and has no historical basis in common law. Adoption has not been defined nor is recognized under the Succession Act, 1925. Adoption neither under 'Muslim Law' nor Christian Law' creates any kindred relationship between the adopted child and adoptive parent whosoever. Succession to the movable and immovable property of any intestate Pakistani is governed under the laws of Pakistan in terms of section 5 of the Succession Act, 1925. In case of Christian Succession, the property devolves upon surviving spouses or upon those who are kindred in ascending or descending order to the intestate. (See sections 23 to 48 of the Act). According to the learned counsel for the petitioner in terms of subsection (2) to section 29 of the Succession Act, 1925 law recognizes "any other law for the time being in force" to be applicable in case of Christian inheritance. According to him, in terms of Code of Canon, the adopted child is entitled to inherit at par with that of, real child. According to Mr.Jhamat, 'Code of Canon' is Code of Christian Personal Law and is to be made applicable, like Muslim Personal Law, applies to Muslim Succession. He contends that according to Canon 22 and 110 of the Code of Canon Law and paras. 615, 629 and 630 of Halsbury Law of England governing the Christian Personal Law, the petitioner is entitled to inherit from the deceased being her adopted child. According to the learned counsel the Christian Personal Law is not mentioned in the Succession Act, 1925, therefore, the succession of the Christian would be governed under the law as is applicable. In order to appreciate his contention, it will be advantageous to reproduce section 29 of the Succession Act, 1925 which runs as follows: "29. Application of Part.--(1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh and Jaina. Save as provided in subsection (1) or by any other law for the time being in force, the provisions of this part shall constitute the law of [Pakistan] in all cases of intestacy."
4. At the first sight there is lure in this argument. But on close examination, I do not find any force.
5. Arguments of Mr.Jhamat Jethanand, cannot be sustained for many reasons firstly, by virtue of section 29(1), Part V of the Act of 1925 (i,e, sections 29 to 56) do not apply to the property of any intestate Hindu, Muslim, Buddhist, Sikh and Jaina. It may be noted that the "Christian and Parsis" are conspicuously excluded in the categories of person whose intestate succession is not governed under Part V of the Act. Part V of the Act applies to Christians, Parsi and other communities professing religion or belief other than those mentioned in subsection (1) to section 29. Secondly, by virtue of Muslim Personal Law (Shariat) Application Act, 1937 succeeded by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 all questions regarding succession (whether testate or intestate) in cases where parties are Muslims, are governed under Muslim Personal Law i,e, Shariat.
6. There is no contemporary legislation in Pakistan as far as Christians are concerned. Reliance of the learned counsel on the Code of Canon is misplaced. Cannon Law, its origin and applicability is detailed in ' Wharton's Law Lexicon" (Fourteenth Edition) as follows: "Conn_ Law.--When Christian communities formed themselves into congregations, certain resolutions were agreed upon for their government; these were termed rules (kavoves, forma, disciplina); and the phrases canonica sanctio, lex canonica, and canonum jura, were not introduced until the ninth century, nor the phrase jus canonicum until the canon law began in the twelfth century to be treated as a science. The cannon law, properly so called, denotes the ecclesiastical law, sanctioned by the Church of Rome. It borrows from the Roman Law many of its principles and rules of proceeding, though not servilely, nor without such variations as the independence of its tribunals and the different nature of its authorities might be expected to produce. See Hall. Lit. Hist. The, canons made in England in 1603, and revised in 1866, are binding on the clergy only (see per Lord Hardwicke in Middleton v. Croft, (1737) 2 Str.1056), some of them being very archaic, as canon 72, by which it is unlawful for any minister to attempt to cast out devils, except with the licence of the bishop of the diocese. They are made by Convocation, but by the Act of Submission (25 Hen. 8, c. 19), the Royal license is required for the making of any new canon." Canon law in Concise Law Dictionary (Fifth Edition) is defined as follows: Canon Law.--A body of Roman ecclesiastical law, compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the Holy See. It was codified in the twelfth century by Gratianus, and added to by subsequent collections, and known as the Corpus Sufis Canonica, In this country, canon law means the law of the Church of England, unless subsequently receiving the authorization of Parliament or merely declaratory of ancient customs, such canons bind only the clergy and laymen holding ecclesiastical office; F e.g., churchwardens. In Black's Law Dictionary (Centennial Edition 1891-1991), it is further elaborated as: 'The Canon Law' is contained in two principal parts, -- the decrees or ecclesiastical constitutions made by the popes and cardinals and the decretal or canonical epistles written by the pope and cardinals, at the suit of one or more persons. As the decrees set out the origin of the Canon Law, and the rights, dignities, and decrees of ecclesiastical persons, with their manner of election, ordination, etc. So the decretals contain the law to be used in ecclesiastical Courts, the Canon law form no part of the law of England, unless it has been brought into use and acted on there." Therefore, it cannot be said that the 'Code of Canon' is Personal Law for Christians in general, in fact, Code of Canon are more of a codification of certain regulation framed by holder of high religious office/position under Christianity considered to be in conformity with divine law. It needs authorization of Legislature before it could be enforced. Contentions, similar to one raised by Mr.Jhamat, were also raised in the case of Ranbir Karam Singh v. Jogindra Chandra (1940 Allahabad Law Journal Reports 1), wherein a Sikh, converted to Christianity; adopted a child, who invoked section 5 of Punjab .Laws Act, 1872 which recognizes custom applicable to the parties concerned, in case of succession by adoption. It was held that there is absolutely no mention of adoption in the Indian Succession Act, as creating any kind of relationship whatsoever succession to the estate of an Indian Christian who was a convert from Sikhism cannot be governed by the custom prevailing among the Sikhs of the particular place in the Punjab to which he belonged. In another case, a Christian woman while she was Buddhist adopted a girl as a daughter with a view to inherit but she subsequently became Christian and died as a Christian intestate. In a claim of succession by the adopted daughter trial Court allowed the claim. However in Appeal reported as Makhin Than v. Ma Ahma (AIR 1934 Rangoon 72), it was held that according to the rule of succession laid down under Succession Act, an adopted child is not an heir entitled upon an intestacy to inherit the estate of his deceased adoptive parent." In a case from Pakistan Jurisdiction relating to Christian inheritance reported as Mst. Inayat Bibi etc. v. Issac Nazir Ullah, etc. (PLD 1992 SC 385) in which case Punjab Customary Law were invoked, by virtue of section 5 of Punjab Laws. Act, 1872. Apex Court declined to apply Customary Laws of Punjab, for two-fold reasons, set out at Page 558 of the reported judgment as follows: "One, that the Succession Act did alter the customary succession in so far as Christians are concerned; and also for them it abolished customary law in Punjab, therefore, the same would not be applicable. Secondly, that the Privy Council judgment in the present case is fully attracted. Even if we are not otherwise bound to accept the Privy Council view today as binding on this Court; yet there is nothing therein not to commend itself as a correctly laid down legal proposition. The Christian females, similarly as in the present case, were allowed to inherit in presence of male heirs. It is thus a case of the application of the Succession Act, which by Statutory dispensation having determined the mode of succession when a Christian male dies, neither the question of Custom nor any other law relied upon by the learned counsel, would be applicable."
7. As already observed, adoption either under Christianity or Muslim Law ipso facto does not create any kindred relationship between the adopted child and adoptive parent, no legal rights or obligations flow from either side, therefore, none could be claimed or enforced. The process of adoption and assumption of any rights and obligations as akin to blood kindred are all statutory and governed under Municipal Law in England where disposition of property of an adopted parent or child is dealt with under the Children Act, 1975, earlier it was regulated under the Adoption Act, 1958. There is no such contemporary law in Pakistan. Succession to the estate of Intestate Pakistani is regulated by laws of Pakistan (section 5 of the Act, 1925). Learned counsel for the appellant was not able to place any material on record to show that a Pakistani domiciled Christian in the matter of succession would be governed under any personal, customary law, code of canon or laws of England.
8. The upshoi of the above discussion is that the Christian domiciled in Pakistan, in the matter of inheritance and succession are governed by the Succession Act, 1925. Property, of intestate Christian devolves upon the spouse or upon those who are either lineal of collaterally kindred -to the deceased in ascending' or descending order as sit out in the Succession Act. Degree of kindred is computed in the manner set out in the Schedule 1 to the Act. Adopted child does not find any mention in the category of kindred upon whom property of intestate upon his death may devolve.
9. According to the succession laid down under the Succession Act, appellant an adopted child is not an heir or kindred entitled upon intestacy to inherit the estate of her deceased adoptive parent. In view of the foregoing discussion, finding no merits in the appeal, same is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.