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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