LODHA, J. - (1.) THESE are two connected appeals directed against the judgment and decree by the Senior Civil Judge, Udaipur dated 24 9-1966.
(2.) THE facts giving rise to these appeals are as follows: One Ganeshlal died leaving behind his widow Smt. Ganga Bai. He had no ton and consequently Smt. Ganga Bai adopted respondent No. 2 Roshanlal to her husband Ganeshlal by a registered adoption deed dated 30-10-1950, a copy of which has been placed on the record and marked Ex. A. 3. Shortly thereafter she executed an agreement to sell the house in question belonging to her husband for Rs. 800/-in favour of appellant Chauthmal and obtained Rs. 200/- in cash as part of the sale price. A copy of this agreement has also been placed on the record and marked Ex. A. 2. It may be relevant to state, here that Chauth Mal was already occupying a part of house i. e. two 'medis', a covered stair-case and also an open terrace as a tenant of Ganeshlal. However, before the sale deed could be executed, it appears that relations between Smt. Ganga Bai and Roshan Lal got strained, with the result that ignoring the first adoption she adopted respondent No. I Hagami-Lal who was then a minor on 20-1-1954. This adoption was oral and is not evidenced by any writing. On 11. 3. 51 Roshan Lal executed a sale deed in respect of the house in question in favour of Chauthmal in pursuance of the agreement Ex. A. 2. A copy of this sale deed has also been produced and marked Ex. A. 1. Two days after the execution of the said sale deed Roshanlal and Mohanlal, brother of Hagamilal as guardian defacto of Hagamilal entered into an agreement whereby the dispute as to the adoption of Roshanlal and Hagamilal by Smt. Ganga Bai was amicably settled. Roshan Lal chose to withdraw himself from his adoptive family and accepted Hagamilal as the validly adopted son of Ganeshlal. In order to avoid litigation Mohanlal also agreed on behalf of Hagamilal that Roshanlal would be paid Rs. 1300/- in lieu of giving up his right to the property of Ganeshlal. It was further agreed that the transactions entered into by Roshanlal as the adopted son of Ganeshlal would be recognised and not challenged by Hagamilal. THE original agreement entered into between Mohanlal, as guardian of Hagamilal minor and Roshan Lal is marked Ex. 1. THEre is no dispute between the parties that this agreement bears the signatures of Mohanlal and Roshanlal. As to what are the implications of this agreement is of course a point of serious dispute and will be dealt with at the proper place. Hagamilal having come up of age, filed a suit on 11. 2. 1962 in the Court of Munsiff, Rajsamand against Chauth Mal and Roshan Lal praying that the sale deed Ex. A. 1 dated 11. 3. 1951 executed by Roshan Lal in favour of Chauthmal in respect of the house in dispute may be declared void and ineffective. It was further prayed that the possession may be granted to him of premises already in occupation of Chauth Mal as tenant. This suit was registered Suit No. 281/62. Soon after the institution of this suit, Chauth Mal also filed a suit against Hagamilal, and Roshanlal praying that a decree for possession of the property sold to him by Roshanlal vide Ex. A. 1 may be granted in his favour on payment of Rs. 300/- as the rest of the sale price i. e. Rs. 500/-had already been paid. Chauthmal's suit was registered as Suit No. 59/1963. An application was filed by Chauthmal in his suit on 22-1-1965 praying that the proceedings in his suit may be stayed till suit No. 281/62 filed by Hagamilal was decided. To this prayer the defendant also agreed with the result that the trial proceeded in suit No. 281/62 only. After recording the evidence produced by the parties, the learned Munsiff decreed suit No. 281/62 in favour of Hagamilal-plaintiff. It was agreed on behalf of Chauthmal that as a necessary corollary his suit No. 59-1963 was liable to be dismissed and accordingly by his judgment and decree dated 23-12-1965 the learned Munsiff dismissed Chauthmal's suit. Aggrieved by the judgments and decrees in both the cases Chauthmal filed appeals in the Court of District Judge, Udaipur from where they were transferred to the Court of Senior Civil Judge, Udaipur for disposal. The appeal arising out of suit No. 211/62 was registered as Appeal No. 154/65 and that arising out of suit No. 59/63 was registered as Appeal No. 22/66 As already stated above, by a single judgment dated 24-9-1966 the learned Senior Civil Judge dismissed both the appeals. Hence these appeal by Chauthmal before this Court. Appeal No. 69/67 is with respect to suit No. 281/62 and Appeal No. 29/67 is with respect to suit No. 58/63.
(3.) LEARNED counsel for the appellant has urged that the courts below have erred in holding that Roshanlal's adoption by Smt. Ganga Bai was not valid for want of evidence of giving and taking. He has also argued in this connection that the courts below have erred in upholding Hagamilal's adoption by Smt. Ganga Bai. This point, in my opinion, cannot be accepted. No doubt there is registered adoption deed Ex. A 2 in favour of Roshanlal, evidence regarding giving and taking in connection with his adoption is conspicuous by its absence. It is not disputed that giving and taking was essential to validate the adoption, and mere existence of a registered deed of adoption could not fill up the lacuna caused by lack of the ceremony of giving and taking. The best person to support the case of Roshanlal's adoption by Smt. Ganga Bai was undoubtedly Roshanlal himself. But even he states that the ceremony of giving and taking did not take place and there is no other evidence in this respect. On the other hand there is over-whelming evidence from the side of Hagamilal which clearly indicates that his natural mother had delegated authority to his elder brother Mohanlal to give him in adoption and that Smt. Ganga Bai took Hagamilal in adoption at the time the ceremony of adoption took place in presence of her relations. No exception can be taken to this evidence and no criticism worth the name has been advanced in respect of it. All that has been argued is that the natural mother of Hagamilal should have physically handed over the boy to Smt. Ganga Bai. This is not essential. It is trite law that the authority of giving the boy in adoption can be delegated by the natural parents. In this state of evidence, the learned Senior Civil Judge was perfectly justified in coming to the conclusion that Roshanlal's adoption was not proved to be valid whereas Hagamilal's adoption is proved to have taken place in accordance with law and I do not see any reason to interfere with that finding. There is yet another aspect of the case. There is no gain-saying the fact that ever since 13. 3. 51 the agreement took place between Mohanlal and Hagamilal, Roshan Lal completely withdrew from his adoptive family and Hagamilal has been treated to all intents and purposes as the adopted son of Ganeshlal. Even Roshanlal in the course of this litigation has not asserted his right as the adopted son of Ganeshlal. In these circumstances it would be most inequitable and improper to call into question the adoption of Hagamilal at the instance of a stranger viz. Cauthmal, who has nothing to do with the devolution of the property of Ganeshlal, and is only interested in getting the sale made by Roshanlal in his favour declared valid. I am clearly of opinion that the fact of adoption so well established and not challenged by the person concerned viz. Roshanlal cannot be undone at the instance of a stranger like Chauthmal. In the result I hold that Hagamilal is the validly adopted son of Ganeshlal. The next important question is whether sale of the house in question made by Roshanlal vide Ex. A. 1 in favour of Chauthmal is liable to be declared ineffective as against Hagamilal. It is true that since Hagamilal is the adopted son of Ganeshlal and not Roshanlal, Roshanlal had no authority to sell Ganeshlal's property and on that reasoning Hagamilal is not bound by the sale made by Roshanlal in respect of the property in question. However, there is an important aspect of the case which does not seem to have been placed before the courts below. There was a genuine dispute between Hagamilal and Roshanlal as to who was the lawfully adopted son of Ganesh Lal. Mohanlal the de facto guardian of Hagamilal, in order to avoid litigation, entered into an arrangement with Roshanlal (Ex. 7) that the latter would forego all his rights in Ganeshlal's property and would not hold himself out as an adopted son of Ganesh Lal, on his agreeing on behalf of the minor Hagamilal not to question certain transactions made by Roshanlal in respect of Ganeshlal's property. A reference to Ex. 7 (agreement between Mohanlal and Roshanlal) would show that in the first place Roshan Lal was given Rs. 1300/- for forgoing his claim to the property of Ganeshlal as his adopted son. Then it was agreed that the discharge of mortgage by accepting the mortgage money made by Roshanlal of agricultural land belonging to Ganeshlal in the tank of Swarup Sagar would be considered as a valid discharge. It was further agreed that the amount due to Ganeshlal recovered by Roshanlal from debtors Ghaghu, Phura Kesara of Guda would be also considered as a valid recovery. So also there is mention of other recoveries made by Roshanlal of debts due to Ganeshlal and all those recoveries have been recognised as binding upon Hagamilal. ;