Case: Lakshman Singh Kothari Vs. Smt. Rup Kanwar

2. The following genealogy will be useful to appreciate the contentions of the parties:It is not necessary to give the other branches of the genealogical tree. It will be seen from the genealogy that plaintiff Lakshman Singhs grandfather, Sobhag Singh, is defendant Moti Singhs paternal uncle. In the year 1923, Sujan Singh was aged about 70 years, and Moti Singh was about 50 years, and Moti Singhs wife, Rup Kanwar alias Rup Kanwar Bai, the respondent herein, who was subsequently brought on record in place of Moti Singh after his death, was abut 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 his line. One February 14, 1923 the plaintiff was brought from his fathers 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 Singhs 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 Sub-ordinate 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.

Reasoning: 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 partyWe, 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 requrest of the plaintiffs father, accompanied the boy to Sujan Singhs house at Ajmer 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 placeThese 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 held 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 adoption10. 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 hand 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 party11. 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 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