- (1.) THIS is a civil second appeal by Gyarsiram defendant against whom Shivram plaintiff brought a suit for declaration that he was the adopted son of the defendant and that the defendant had no tight to cancel the adoption. Gyarsiram died during the course of pendency of the appeal in this Court and his widow Mst. Ilaichi has been brought on record as appellant.
(2.) SHIVRAM plaintiff filed a suit in the court of the Civil Judge, Jaipur City, on the 25th of March, 1949. He alleged that he had been adopted by the defendant on the 21st June, 1957, and ceremonies relating to adoption were duly performed and that since the date of adoption he had been residing with the defendant. The defendant also executed the adoption deed on the 7th August, 1947, which was registered on the 30th August, 1947. The defendant executed a deed of revocation on the 7th March, 19+9 which has given cause of action to the plaintiff to file the present suit for declaration. The defendant pleaded that he and never adopted SHIVRAM and had not performed any ceremonies with regard to the adoption. The adoption deed mentioned in the plaint was got executed undue influence and fraud exercised by Shamsunder father of the plaintiff. It is also pleaded that the suit for mere declaration is not maintainable. The suit was dismissed by the trial court on the ground that the plaintiff failed to prove that giving and taking had taken place at the time of the performance of the ceremonies of adoption. The plaintiff went in appeal to the court of the Additional District Judge, Jaipur. The learned Additional District Judge held that the plaintiff was duly adopted by the defendant. He accepted the appeal and decreed the suit of the plaintiff. Hence this appeal on behalf of defendant Gyarsiram. It is not seriously disputed in this appeal that certain ceremonies relating to adoption took place on the 21st June, 1947. In the trial court it was argued on behalf of the defendant that even if it be taken as proved that certain ceremonies did take place at the time of adoption, still the adoption was neither complete nor valid as giving and taking of the plaintiff in adoption had not taken place which was essential for a valid adoption. The same argument was repeated in the first appeal before the learned District Judge. I have to determine whether what had taken place on the 2lst June, 1947 was sufficient in the eye of law to hold that the plaintiff had been adopted by the defendant. Laxminaram P. W. 1 was the head priest at the time of the performance of the ceremonies on that date and two other priests were Govindnarain, P. W. 2, and Kanahiyalal, P. W. 3. There are other witnesses also who were present at the ceremonies. They are Kesarlal. P. W. 5, Gorishankar, P. W. 7, Shamsunder, natural father of the plaintiff, P. W. 8 and Shivram, P. W. 9, plaintiff himself. Laxminarain P. W. 1 deposed that he was the Acharaya at the adoption ceremony and that the natural father of the plaintiff Shamji had given the plaintiff to Gvarsiram. defendant, after performing Horn Sankalap and Gyarsiram had taken Shivram, plaintiff. Havan Pujan was also performed. In cross -examination the witness deposed that Vedi was constructed and various Gods were worshiped and later on Havan was performed and that he had officiated as priest in a number of Dattak ceremonies during the last five or seven years, Govindram, P. W. 2, stated that Dattak ceremony of the plaintiff was performed and that Shamsunder, father of the plaintiff, had given the plaintiff in adoption to Gyarsiram. Shamsunder had given Sankalap of Dattak while Gyarsiram accepted the Sankalap. The same is the statement of Kanahiyalal, P. W. 3 Shamsunder, P. W. 6, natural father of the plaintiff, corroborated the statement of the priest, In cross -examination, he stated as follows : - "the ceremony of Dattak and Havan was performed at the time of adoption. Pandit performed the Dattak. By Datak I mean that Pujan was performed in accordance with Dharam Shastras and I gave the Sankalap and Gyarsiram accepted the Sankalap and stated that the (Shivram) is his son. Now he shall bring him up and get him married. By Sankalap I mean that I took water in my hand and after he Pandit had recited some Mantras, I poured the water in the hands of Gyarsiram, as is done at the time of Kanyadan. " The other witnesses referred to above, supported the version given above in a general way. It is urged on behalf of the defendant that this evidence is not sufficient to prove adoption inasmuch as none of the witnesses had stated that the plaintiff was physically given by Shamsunder to Gyarsiram. ft is contend -ed that unless the physical act of giving and receiving is proved, it cannot be taken that the plaintiff had proved the adoption. A number of cases have been cited on behalf of the appellant to show that corporeal delivery of the child is essential to the validity of the adoption. I may only refer to the case of Mahasoya Shosinath Ghose vs. Srimati Krishna Soondari Dasi (1), in which it if observed as follows : - That being so, it is unnecessary for their Lordships positively to decide the first question, namely, whether there can be, according to Hindu Law and usage, an adoption simply by deed, and without that corporeal delivery and acceptance of the child which is almost universally treated as the essential part of an adoption in the Dattaka form. They desire, however, to say that they are very far from wishing to give any countenance to the notion that there can be such a giving and a taking as is necessary to satisfy the law, even in a ease of Sudras, by mere deed, without an actual delivery of the child by the father. 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. The mode of giving and taking a child in adoption continues to stand on Hindu law and on Hindis usage, and it is ret perfectly clear that amongst the twice -born classes there could be no such adoption by deed, because certain religious ceremonies, the Datta Homa in particular, are in their case requisite. The system of adoption seems to have been borrowed by the Sudras from these twice -born classes, whom in prac -tice, as appears by several of the cases, they imitate as much as they can ; adopting those purely ceremonial and religious services which it is now decided are not essential for them in addition to the giving and taking in adop -tion. It would seem, therefore, that accord -ing 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 handing over the child to the adoptive mother, and the adoptive mother declaring that she accepts the child in adoption. Now in the case before me, the evidence is that the natural father of the plaintiff was sitting along with the plaintiff at the place where the ceremonies were going on. Gyarsiram defendant along with his wife was also sitting there. Shamsunder made a gift of the boy to Gyarsiram by performing the Sankalap and Gyarsiram accepted the Sankalap. In Manu, IX, 168, of a Dattima son (Dattak), the ceremony referred to is as follow - He whom bis father or mother gives to another as his son, provided that the donce have no issue, if the boy be of the same class, and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water. (N. R. Raghavachariar's Hindu Law, Third Edition, p. 88 ). In Tagor Law Lectures, 1950 on Evolution of Ancient Indian Law, following observations have been made Dr. N. C. Sengupta ; see page 155 - The Dattaka son did not belong to the early Vedic society. The very idea of a father disposing of a son as property by gift was obnoxious to the Vedic opinion which is re -emphasised by Apastamba. Further more, the ritual law of the Grihyas knows nothing of any ritual for giving or taking & son in adoption. A ritual of Datta Homa has since then sprung up, but that is nothing but a ceremonial appropriate to any gift of property coupled with certain adopted rituals appropriate to the natural born son. Vasistha's text, which I consider to preserve the earliest authority on the subject, speaks of a person taking a son in adoption making only a Vyahriti Home which is merely an auspicious ritual in almost every religious transaction and has nothing specially appropriate to the taking of a son. 'giving and taking' of a son in adoption under Hindu Law has assumed the form of giving of the gift of the child by the natural father to the adoptive father who accepts the gift. The ritual for the gift of any property consists particularly of pouring water by the giver of the gift in the hands of the person to whom the gift is given and this is the ceremony which is said to have taken place in the case of the adoption of the plaintiff by the defendant. Be it noted that the object of gift that is the plaintiff himself was also present at the place where the gift was given. There was giving and acceptance of the gift as stated by Shamsunder. Under these circumstances, in my humble opinion, the requirements of Hindu law were satisfied. Their Lordships of the Privy Council in the decision referred to above did not mean to lay down that giving and taking must be performed in any particular manner. This is clear from the observations of their Lordships of the Privy Council in the case of Setk Biradh Mal vs. Sethani Prabhabhati Kunwar (2 ). Their Lordships thought that the evidence that the boy was present when the sub -registrar put to his father and to the adoptive mother the questions whether they had executed the deed is sufficient to prove giving and taking. Learned counsel for the appellant has argued that this authority relates to Jains who treat adoption as a secular act. But even amongst Jains, giving and taking is treated as essential and on the point of giving and taking no distinction can be maintained between Hindus and Jains. In the case of Maroti Bansi Teli vs. Radhabai w/o Tukaram Kunbi (3), Bose J, observed as follows relating to the ceremony of giving and taking in adoption. I have already referred to the decision of their Lordships of the Privy Council in A. I. R. 1939 P. C. 152 to show to what extreme simplicity the ceremony of giving and taking can be reduced. All that is necessary is that there should be some overt act to signify the delivery of possession of the boy from the one family to the other ; see I. L. R. (1942) Mad. 608 and Mayne's Hindu Law, 10th Edn. , p. 251. Delivery of possession is equally necessary in other matters ; but often it can only be symbolical, as in the case of land. All, therefore, that the law requires to evidence delivery is some overt act to signify the giving and taking. It is not even necessary that words should be spoken ; signs would be enough, a nod or a smile ; It will certainly be enough for the one to say 'i give' and for the other to say 'i take' without anything further, provided all are present. The above cases point out that giving and taking may not be by actually handing over the child to the adoptive father or mother. The ceremonies that took place in this case are sufficient to fulfil the requirements of Hindu Law. I. therefore, hold that the plaintiff was duly adopted by the defendant on the 1st June, 1947. This is further borne out by the deed of adoption dated the 7th August, 1947, in which it is stated be Gyarsiram that all religious and essential ceremonies in connection with the adoption bad been performed. In the adoption deed it is further admitted that the plaintiff had been adopted by the defendant and that the former had lived with the latter for some time. The next contention on behalf of the appellant is that the plaintiff is not entitled to maintain the suit for mere declaration and should have prayed for consequential relief. The legal right of the plaintiff has been infringed in this case inasmuch as the adoption was sought to be revoked by defendant Gyarsiram and he is surely entitled to maintain the suit for mere declaration to establish his legal status of an adopted son. I, therefore, do not find any force in this contention of the learned counsel for the appellant. The appeal has got no force and is dismissed with costs. . ;