Full Judgment Text
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PETITIONER:
LAKSHMAN SINGH KOTHARI
Vs.
RESPONDENT:
SMT. RUP KANWAR
DATE OF JUDGMENT:
22/03/1961
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
CITATION:
1961 AIR 1378 1962 SCR (1) 477
CITATOR INFO :
R 1970 SC1286 (9)
F 1983 SC 114 (20)
ACT:
Hindu law-Adoption-Validity-Essential requirements-Ceremony
of giving and taking-Delegation of authority.
HEADNOTE:
In order that an adoption may be valid under the Hindu Law
there must be a formal ceremony of giving and taking. This
is true of the regenerate castes as well as of the Sudras.
Although no particular form is prescribed for the ceremony,
the law requires that the natural parent shall hand over,
the adoptive boy and the adoptive parent must receive him,
the nature of the ceremony varying according to the
circumstances. After exercising their volition to give and
take the boy in adoption, the parents may, both or either of
them, delegate the physical act of handing over or receiving
to a third party.
Consequently, in a case where the natural father merely sent
the boy in another’s company to the house of adoptive father
who received him but there was no delegation of the power to
give in adoption or the ceremony of giving and taking,
478
Held, that no valid adoption bad taken place.
Shoshinath Ghose v. Kyishnasundari Dasi, (1880) I. L. R. 6
Cal. 381, Krishna Rao v. Sundara Siva Rao, (1931) L. R. 58
I. A. 148, Vijiarangam v. Lakshuman, (1871) 8 Bom, II. C.
R. 244, Shamsing v. Santabai, (1901) I. L. R. 25 Bom. 551,
and Viyyamma v. Suryaprakasa Rao, I. L. R. 1942 Mad. 608,
referred to.
Biryadhmal v. Prabhabhati, A. I.R. 1939 P.C. 1952,
explained.
JUDGMENT:
CIVIL APPELLATE, JURiSDICTION: Civil Appeal No. 430 of 1957.
Appeal by special leave from the judgment and decree dated
27th October, 1953, of the former Judicial Commissioner,
Ajmer, in Civil Second Appeal No. 25 of 1951.
C. B. Agarwala, S. S. Deedwani and K. P. Gupta, for
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appellant.
Mukat Behari Lal Bhargava, B. I.,. Aren and Naunit Lal, for
the respondent.
1961. March 22. The Judgment of the Court was delivered by
SUBBA RAO, This is an appeal by special leave against the
judgment and decree of the Judicial Commissioner at Ajmer
dated October 27, 1953, confirming the judgment of the
District Judge, Ajmer, and setting aside that of the
Subordinate Judge, First Class, Ajmer, in Civil Suit No. 48
of 1944.
The following genealogy will be useful to appreciate the
contentions, of the parties:
Aman Singh
Sujan Singh Sobhag Singh
Moti Singh Zalim Singh
(defendant)
Lakshamn Singh
(plaintiff)
It is not necessary to give the other branches of the
genealogical tree. It will be seen from the genealogy that
plaintiff Lakshman Singh’s grandfather, Sobhag
479
Singh, is defendant Moti Singh’s paternal uncle. In the
year 1923, Sujan Singh was aged about 70 years, and Moti
Singh was about 50 years, and Moti Singh’s wife, Rup Kanwar
alias Rup Kanwar Bai, the respondent herein, who was
subsequently brought on s record in place of Moti Singh
after his death, was about 45 years old. Moti Singh had no
son and, therefore, Sujan Singh was anxious to have a boy
well versed in vedic-lore to be adopted to his son Moti
Singh to perpetuate big line. On February 14, 1923, the
plaintiff was brought from his father’s house to the house
of Sujan Singh in Ajmer by one Hira Lal and left there. On
March 28, 1923, the plaintiff was admitted as a student in
an institution called Gurukul Kangri. He was educated in
that institute from the year 1923 to 1936. On March 19,
1936, after completing his studies in the Gurukul, the
plaintiff came back to Moti Singh’s house. As he was not
accorded the treatment expected of an adoptive father to an
adopted son, he grew apprehensive of the intentions of Moti
Singh and filed Civil Suit No. 48 of 1944 against Moti Singh
in the Court of the Subordinate Judge, First Class, Ajmer,
for a declaration of his status as an adopted son of the
defendant, Moti Singh. Moti Singh in his written statement
denied that the plaintiff was his adopted son and pleaded
that the suit was barred by limitation. The Subordinate
Judge, on evidence, held that the plaintiff was the adopted
son of the defendant and that the suit was not barred by
limitation. On appeal, the District Judge, on a review of
the evidence, came to the conclusion that the plaintiff was
never in fact adopted by the defendant and that the ceremony
of "giving and taking" did not take place. He further found
that the suit was within time. On second appeal, the
learned Judicial Commissioner, Ajmer, accepted the findings
of the learned District Judge and dismissed the appeal.
Hence the appeal.
Learned counsel for the appellant contended that the
Judicial Commissioner has not correctly appreciated the
ingredients of the ceremony of "giving and taking" and that
he should have held that Hira Lal’s;
480
bringing of the boy at the instance of his natural father to
the house of Sujan Singh, and Moti Singh receiving the boy
by putting his hand on his head were sufficient compliance
with the Hindu Law doctrine of "giving and taking" and,
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therefore, the adoption was valid.
Before adverting to the legal aspect of the question raised,
it would be convenient at the outset to ascertain clearly
the relevant facts in regard to the alleged handing over of
the plaintiff-appellant by his natural father to the
adoptive father. In the plaint the plaintiff did not give
any particulars of his adoption; neither the date of the
adoption was mentioned nor the manner in which the necessary
ceremony of "giving and taking" was performed was stated.
The only allegation found in the plaint, was that "...... on
the 2nd June, 1926, Kothari Sujan Singhji executed a
document announcing the plaintiff by virtue of his adoption
by the defendant to be the only and sole heir and successor
to all his property after the defendant." The defendant in
his written statement denied the factum of adoption. On
October 24, 1942, the trial court directed the plaintiff to
give further particulars about the date of the alleged
adoption and to amend his plaint. On November 3, 1942, he
filed a statement of further particulars alleging that he
was taken in adoption between February 13, 1923, and
February 23, 1923. Only during the course of the trial and
particularly at the time of arguments it was suggested that
he was taken in adoption on February 14, 1923, when Hira Lal
brought him to the house of Sujan Singh. It is, therefore,
clear that till a very late stage of the suit, the plaintiff
did not at any rate think that he was taken in adoption on
the date when Hira Lal brought him to the house of Moti
Singh.
The documents tiled in the case did not establish that any
ceremony of "giving and taking" took place on February 14,
1923. Ex. P/1 dated October 21, 1922, is the letter
written by Sujan Singh, the father of the defendant, to
Zalim Singh, the father of the plaintiff. Therein it was
stated that Lakshman Singh would be sent to Gurukul for his
admittance there.
481
It was also mentioned that, as Zalim Singh wished that
permission of Moti Singh was required, Moti Singh would go
to Gurukul for gathering Lakshman Singh admitted in the
institution and his name would also be entered as the
guardian and father of Lakshaman Singh. This letter only
indicates that Sujan Singh was anxious that Moti Singh
should take Lakshman Singh in adoption and it does not show
that actually any ceremony of "giving and taking" took place
or indicate that any such ceremony would take place on any
particular date. Ex. P/2 is a post-card dated January 31,
1923, written by Moti Singh to Zalim Singh. Therein Moti
Singh asked Zalim Singh to send Lakshman Singh, as he had to
be admitted in Gurukul on February 20, 1923. There was a
specific statement in the letter that "Coconut ceremony was
not being done before as the boy may or may not be admitted
into Gurukul ". The following statement in that letter is
very instructive:
"After qualifying from Gurukul, he will of course remain.
He is being educated at Gurukul with a view to adopt."
It is said that the phrase "with a view to adopt" is not a
correct translation and the correct translation is "on
account of adoption". But the context in which the said
words appear leaves no room for doubt that Moti Singh was
informing Zalim Singh that no ceremony would be performed as
the boy might or might not be admitted into Gurukul. But he
assured him that he was being admitted in Gurukul only with
a view to adopt him. This letter also proves that Moti
Singh did not contemplate any adoption, at any rate till the
boy was admitted in Gurukul. Ex. P/3 dated February 9,
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1923, is another letter written by Moti Singh to Zalim Singh
wherein Moti Singh informed Zalim Singh that the election-
meaning selection-of students for Gurukul would take place
on February 28 and, therefore, he asked him to send Lakshman
Singh at once. Ex. P/4 is an agreement entered into
between the authorities of Gurukul Kaiigri and the parents
of Lakshman Singh. In the preamble to that
482
agreement Lakshman Singh is described as the grandson of
Sujan Singh. It does not carry the matter further, as
Lakshman Singh being Sujan Singh’s brothers grandson, the
description would be consistent even if there was no
adoption. Ex. P/5 is the application for admission of
Lakshman Singh in Gurukul. It is not dated, but it appears
to have been put in between January 3, 1923, and February
14, 1923. It was sent by the natural father of Lakshman
Singh. This may be explained by the plaintiff that, as on
the date of the application the adoption had not taken
place, the natural father signed it. Ex. P/26 is a will
executed by Sujan Singh wherein he bequeathed his properties
to Moti Singh and gave a vested remainder to Lakshman Singh.
In the document Lakshman Singh was described as follows:
"Lachman Singh the second son of my younger brother Sobhag
Sighji’s elder son Zalim Singh has been kept for the past
about 3-1/1 years". This will was executed at a time when
admittedly the relationship between Sujan Singh and Lakshman
Singh was cordial. If really the adoption had taken place
before 1926, it is inconceivable that the grandfather would
not have described Lakshman Singh as the adopted son of Moti
Singh. On the contrary, it was stated that Lakshman Singh
was kept for the past 3-1/4 years. This is only consistent
with the case of the defendant that though adoption was
contemplated, it did not take place; but Lakshman Singh was
brought to the family of Sujan Singh and was being educated
in Gurukul with a view to take him in adoption at a later
stage. What is more, whatever doubts there may have been,
they are clearly dispelled by a letter written by Laksman
Singh to his father, Zalim Singh, on May 19, 1934, i.e.,
after disputes arose between the parties. Therein Lakshman
Singh told his father, Zalim Singh, that if Moti Singh did
not desire to take him in adoption, he, also did not wish to
be adopted to him. He further proceeded to write to his
father: "Please do not worry in the least that at present Ba
Sahib has kept, and as to what would happen if uncle Moti
Singh does not keep after him (Ba Sahib). After all
483
none but God can snatch from me the ability which you have
conferred on me ". This letter establishes , two facts,
namely, (i) there was no actual adoption, but Sujan Singh
had only kept Lakshman Singh it may be recalled that the
word used in the swill of Sujan Singh was also "kept"; and
(ii) that the adoption had not yet taken place, for, if the
adoption had taken place, Lakshman Singh would not write to
his father that if Moti Singh did not like to take him in
adoption, he was also not willing to be adopted to him. The
documentary evidence, there. fore, clearly establishes that
no ceremony of adoption had taken place, though the boy was
taken to the house of Sujan Singh with a view to take him in
adoption either after he was admitted in Gurukul or after
his education at Gurukul was completed.
The oral evidence in the case is also consistent with the
documentary evidence. P. Ws. 1, 2, 4, 5 and 7 speak if a
custom in the community to which the parties belong to the
effect that in that community the consent of the person
giving in adoption and the person taking in adoption and the
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going of the adopted son from his original family to live in
the adoptive family wore the preliminary steps to a valid
adoption. But no attempt has been made in any of the courts
below to sustain the adoption on the alleged custom and,
therefore, we do not propose to consider the evidence
relating to the alleged custom. P.W. 2, who is a maternal
uncle of the plaintiff, further says that the plaintiff was
sent to Ajmer with Hira Lal and that Hira Lal was given
instructions by Zalim Singh and the father of P.W. 2 to go
via Bhilwara and Masooda and on reaching Ajmer to hand over
the boy to Moti Singh. But in the cross-examination, he
said that he did not know "if the cocoanuts about the
plaintiff’s adoption have been distributed or not till now"
and that he could give the date of the plaintiff’s adop-
tion. This evidence, even if true, does not establish that
Zalim Singh delegated his power to Hira Lal to give the boy
on his behalf in adoption to Moti Singh. At the most it
would show that he sent the boy
484
along with Hira Lal to Ajmer. P.W. 7 is a relation of the
parties. He said that in 1923 when Lakshman Singh came to
Ajmer, he was sitting in the house of Moti Singh, that Hira
Lal told Moti Singh that he had brought Lakshman Singh as
desired by him and that Moti Singh kept the boy with him and
told Hira Lal that he had done well in bringing the
boy. This evidence, even if true, only shows that Hira Lal
brought the boy to Ajmer and left him with Moti Singh.
There is nothing in this evidence to show that Moti Singh
received the boy as an adopted son and that Hira Lal banded
over the boy to Moti Singh as a delegate of the boy’s
natural father. The plaintiff, as P.W. 10, described his
going to Moti Singh’s house thus:
"At that time my father was residing at
Udaipur. He sent me to Ajmer with one Hira
Lal Dhabace. We reached the house of Moti
Singh at about 10 a.m. on or about 14-2-1923.
MOti Singh came out and received me at the
gate. Hira Lal then told him that since he
had called me, he (Hira Lal) had come with me
to give me in adoption."
Assuming that the plaintiff remembered exactly what all
happened when he was only 9 years old, the version given by
him does not prove that Hira Lal as a representative of his
father gave him and Moti Singh received him as a part of the
ceremony of adoption. The events narrated by him only show
that Hira Lal brought him to Ajmer so that he might be taken
to Gurukul. Hira Lal, as D.W. 4, described the incident
thus:
"In 1923 1 brought Lachman Singh to Ajmer. I
brought him to the house of Sujan Singh and
Moti Singh. I was informed by Zalim Singh
that Moti Singh had written to him that
Lachman Singh was to be sent to Gurukul with
Moti Singh and so I might go and leave him at
Ajmer."
In the cross-examination he further elaborated
thus:
"It is incorrect that Zalim Singh asked me to
give the plaintiff in adoption to Moti Singh.
He had said that the boy was proceeding to
Gurukul and I may go to hand over the boy to
Moti Singh .........
485
When I brought the plaintiff to Ajmer, Moti
Singh placed his hand on the head of the
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plaintiff and said that you have come."
The version given by this witness is natural and the last
answer given by him stamps the evidence with a seal of
impartiality. His evidence is consistent with the entire
documentary evidence-adduced in the case. He was head-clerk
of Raj Sri Medraj Sabha, Udaipur, and he appears to be a
disinterested witness. Without any hesitation we accept his
evidence. His evidence clearly shows that he brought the
plaintiff and left him with Moti Singh in Ajmer as he had to
be sent to Gurukul. Ex. D/4 is a copy of a pamphlet
circulated by Zalim Singh to Juwan Singh Mehta. It is dated
September. 6, 1938, i.e., after disputes arose between the
parties. Therein he stated what took place on the date when
the plaintiff was sent to Ajmer thus:
"Thereupon I sent Chiranjiv Laxman Singh from
Udaipur with Dhabaiji Hiralalji who was a
respectable Government servant of the Mewar
State and reader to the Secretary,’Rajya Sri
Mahadraj Sabha which post I then held. Sujan
Singhji, Shahji Saheblalji Khinvsara and
others went up to outside Soorajpol
accompanying him (Laxman Singh). told
Dhabaiji Hiralalji that he would give Bapu on
my behalf in adoption to Moti Singhji.
Respected father was at Mal Okneda near Mander
Station in the way. asked Hiralalji to have
Bapu see him (Respected father). Dhabaiji
after having Laxman Singh see father took him
to Bhai Sahib Moti Singhji and Baba Ba Sahib
at Ajmer who were then residing at Kaserganj.
He (Dhavaiji) giving him (Laxman Singh) to
them returned to Udaipur and informed me and
said ’Moti Singhji placed his hand upon the
head of Bapu’ and said, you have come. Ba
Sahib very lovingly made him sit near himself
and caressing him with joy, asked of his
welfare."
It is for the first time the idea of delegation has been
introduced and, in our opinion, it was done presumably on
some legal advice. This is an attempt to give a legal
flavour to an ordinary act of sending a boy
486
with an elderly gentleman to another place. We cannot act
upon the self-serving statement made by this person in 1938.
It is impossible to conceive that the necessary ceremony of
adoption, that is, "giving and taking" would be done in such
a casual manner and that the natural father or the natural
mother or the near relations would not have gone to the
place of the adoptive father if a ceremony was scheduled to
take place on a particular date. We, therefore, hold, on
the evidence, oral and documentary, that Sujan Singh and
Moti Singh wanted to take the plaintiff in adoption either
after the boy was admitted in Gurukul or after he finished
his education therein, that Hira Lal, on the request of the
plaintiff’s father, accompanied the boy to Sujait Singh’s
house at Ajmer and left him there, that Moti Singh welcomed
the boy as was expected of him and thereafter sent hint to
Gurukul and that no formal ceremony of "giving and taking"
had taken place.
Even so, it was contended that the fact that Zalim Singh
sent the plaintiff through Hira Lal to Moti Singh’s house
and that Moti Singh received him in his house would be
sufficient compliance in law with the requirement of "giving
and taking" as understood in the Hindu Law, when those
events took pursuant to the settled intention of the parties
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to take the plaintiff in adoption. A natural father, the
argument proceeded, need not physically hand over the boy to
the adoptive father, but he could validly delegate the
physical act of handing over the boy to a third party as
Zalim Singh is alleged to have done in the present case.
To appreciate this argument it is necessary to notice
briefly the law of adoption vis-a-vis the ceremony of "
giving and taking" Golapeliandra Sarkar Sastri in his book
on Hindu Law, 8th edn., succinctly describes the ceremony of
"giving and taking" thus at p. 194:
"The ceremonies of giving and taking are
absolutely necessary in all cases. These
ceremonies must be accompanied by the actual
delivery of the child; symbolical or
constructive delivery by the mere parol
expression of intention on the part of the
487
giver and the taker without the presence of the boy is not
sufficient. Nor are deeds of gift and acceptance executed
and registered in anticipation of the intended adoption, nor
acknowledgment, sufficient by themselves to constitute legal
adoption, in the absence of actual gift and acceptance
accompanied by actual delivery; a formal ceremony being
essential for that purpose."
Much to the same effect it is stated in Mayne’s Hindu Law,
llth edn., at p. 237:
"The giving and receiving are absolutely necessary to the
validity of an adoption. They are the operative part of the
ceremony, being that part of it which transfers the boy from
one family into another. But the Hindu Law does not require
that there shall be any particular form so far as giving and
acceptance are concerned. For a valid adoption, all that
the law requires is that the natural father shall be asked
by the adoptive parent to give his son in adoption, and that
the boy shall be handed over and taken for this purpose."
The leading decision on this subject is that of the Judicial
Committee is Shoshinath Ghose v. Krishnasundari Dasi (1).
That was, like the present, a case of adoption among Sudras.
There, it was contended, inter alia, that there was a formal
adoption by giving and taking, and in the alternative it was
contended that even if there had been no formal adoption as
alleged, the deeds of giving and taking, executed in 1864,
were sufficient to bring about the adoption and that was all
that was essential in the case of Sudras. Sir J. W.
Colvile, speaking for the Board, rejected both the
contentions. He accepted-the finding of the lower courts
that there was no formal giving and taking, and rejected the
argument that the documents themselves operated as a
complete giving and taking of the adoptive boy. The learned
Judge observed at p. 388 thus:
"There is no decided case which shows that there can be an
adoption by deed in the manner contended for; all that has
been decided is that, amongst
(1)(1880) 1 I.L.R. 6 Cal. 381.
488
Sudras, no ceremonies are necessary in
addition to the giving and taking of the child
in adoption.................. it would seem,
therefore, that, according to Hindu usage,
which the Courts should accept as governing
the law, the giving and taking in adoption
ought to take place by the father banding ove
r
the child to the adoptive mother, and the
adoptive mother declaring that she accepts the
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child in adoption."
That a formal ceremony of giving and taking is essential to
validate the adoption has been emphasized by the Judicial
Committee again in Krishna Rao v. Sundara Siva Rao (1). But
in practice many situations had arisen when it became
impossible for a natural father to hand over the adoptive
boy physically, or to an adoptive father or mother to
receive the adoptive boy physically due to physical
infirmity or other causes. In such cases Courts have stepped
in and recognized the delegation of the physical act of
giving and taking provided there was an agreement between
the natural and adoptive parents to give and receive the boy
in adoption. The scope of the power of delegation has been
clearly stated by West, J., in Vijiarangam v. Lakshuman (2)
thus:
"The gift and acceptance in such a case must,
as Sir T. Strange has observed be manifested
by some overt act; and here Yeshvadabai did
not in person hand over her son to Savitri.
But she commissioned her uncle to do this,
being at the time too unwell to attend the
ceremony herself. The Hindu Law recognizes
the vicarious performance of most legal acts;
the object of the corporeal giving and receiv-
ing in adoption is obviously to secure due
publicity (Colebrook’s Digest, Book V. T. 273,
commentary), and Yeshvada’s employing her
uncle to perform this physical act, which
derived its efficacy from her own volition
accompanying it, cannot, we think, deprive it
of its legal effect. We hold, therefore, with
the learned Judge, that the adoption is proved
and effectual."
This view was approved by the Bombay High Court
(1) (1931) L.R. 58 I.A. 148.
(2) (1871) 8 Bom. H.C.R. 244.
489
in Shamsing v. Santabai (1). A division bench of the Madras
High Court in Viyyamma v. Suryaprakasa Rao (2) applied the
principle to a converse case of an adoptive father
delegating his power to accept the adoptive boy to another.
Sir Lionel Leach, C.J., in extending the rule of delegation
to a case of receiving says at p. 613 thus:
"If this were not so, what would be the
position when through accident or illness the
natural father or the adoptive parent could
not be present in person to do what is
necessary? There could be no adoption."
Further citation would be redundant. It is, therefore,
settled law that, after the natural and adoptive parents
exercised their volition to give and take the boy in
adoption, either of them could, under certain unavoidable
compelling circumstances, delegate his right to give ’or the
right to receive the adoptive son, as the case may be, to a
third party.
Strong reliance is placed by learned counsel for the
appellant on the decision of the Judicial Committee in
Biradhmal v. Prabhabhati (3). There a widow executed a deed
of adoption whereby she purported to have adopted as son to
her deceased husband a boy. The Sub-Registrar before whom
the document was registered put to the boy’s natural father
and to the widow questions whether they had executed the
deed. The boy was also present at that time. The Judicial
Committee held that, under the said circumstances, there was
proof of giving and taking. The question posed by the Privy
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Council was stated thus: "The sole issue discussed before
their Lordships was the question of fact whether on 30th
June, 1924, at about 6 p.m. when the adoption deed wag being
registered the boy was present and was given by Bhanwarmal
and taken by the widow". The question so posed was answered
thus at p. 155:
"......... their Lordships think that the
evidence that the boy was present at the time
when the sub-registrar put to his father and
to the widow the
(1) (1901) I.L. R. 25 Bom- 551 (2) I.L.R. 1942 Mad. 608.
(3) A.I.R. 1939 P.C. 152.
62
490
questions whether they had executed the deed is sufficient
to prove a giving and taking."
This sentence is rather laconic and may lend support to the
argument that mere putting questions by the Sub-Registrar
would amount to giving and taking of the adoptive boy; but
the subsequent discussion makes it clear that the Privy
Council had not laid down any such wide proposition. Their
Lordships proceeded to observe:
"Even if the suggestion be accepted that the
auspicious day ended at noon on the 30th and
that the deed was executed before noon and
before the boy arrived at Ajmer, it seems
quite probable that the registration
proceedings which were arranged for 6 p.m.
would be regarded as a suitable occasion for
carrying out the very simple ceremony that was
necessary."
These observations indicate that on the material placed
before the Privy Council-it is not necessary to say that we
would come to the same conclusion on the same material-it
hold that there was giving and taking of the boy at about 6
p.m. when the document was given for registration. The
Judicial Committee, in our view, did not intend to depart-
from the well recognized doctrine of Hindu Law that there
should be a ceremony of giving and taking to validate an
adoption.
The law may be briefly stated thus: Under the Hindu Law,
whether among the regenerate caste or among Sudras, there
cannot be a valid adoption unless the adoptive boy is
transferred from one family to another and that can be done
only by the ceremony of giving and taking. The object of
the corporeal giving and receiving in adoption is obviously
to secure due publicity. To achieve this object it is
essential to have a formal ceremony. No particular form is
prescribed for the ceremony, but the law requires that the
natural parent shall band over the adoptive boy and the
adoptive parent shall receive him. The nature of the
ceremony may vary depending upon the circumstances of each
case. But a ceremony there shall be, and giving and taking
shall be part of it. The
491
exigencies of the situation arising out of diverse cir-
cumstances necessitated the introduction of the doctrine of
delegation; and, therefore, the parents, after exercising
their volition to give and take the boy in adoption, may
both or either of them delegate the physical act of handing
over the boy or receiving him,. as the case may be, to a
third party.
In the present case, none of the aforesaid conditions has
been satisfied. The High Court found that Zalim Singh and
Moti Singh did not decide to take the boy in adoption on
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February 14, 1923. The High Court further found that their
common intention was to take. the boy in adoption only after
he was admitted in Gurukul or thereafter. The documents
filed and the oral evidence adduced in the case establish
that the adoptive father did not delegate his power to give
the boy in adoption to Moti Singh to Hira Lal and that Moti
Singh did not receive the boy as a part of the ceremony of
adoption, but only received him with a. view to send him to
Gurukul. We. therefore, hold that the ceremony of giving
and taking, which is very essential for the validity of an
adoption, had not taken place in this case.
In the result, we hold, agreeing with the Judicial’
Commissioner, that the appellant was not adopted by Moti
Singh. The appeal fails and is dismissed with costs.
Appeal dismissed.
492