SUBBA RAO, - (1.)THE following Judgment of the court was delivered by
(2.)THIS is an appeal by special leave against the judgment and decree of the Judicial Commissioner at Ajmer dated 27/10/1953, 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: JUDGEMENT_1378_AIR(SC)_1961Image1.jpg 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 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 14/02/1923, 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 28/03/1923, 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 19/03/1936, 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 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, therefore, the adoption was valid.

(4-6) 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. (His Lordship adverted to these facts, considered the oral and documentary evidence and concluded:)

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 Sujan Singh's house at A]'mer and left him there, that Moti Singh welcomed the boy as was expected of him and thereafter sent him 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 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 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, 11th 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 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 over the child to the adoptive mother, and the adoptive mother declaring that she accepts the 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 receiving 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 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.

(3.)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 council was stated thus: 'The sole issue discussed before their Lordships was the question of fact whether on 30/06/1924, 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 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 exigencies of the situation arising out of diverse circumstances 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 14/02/1923. 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.