(1) Defendants 1 and 2 are appellants. The suit was filed by the plaintiff for possession of A and B schedule properties from the first defendants, vacant possession of C schedule property from the second defendant and possession of D schedule property from the third defendant. The plaintiff claimed to be the adopted son of one Govinda Rao. The adoption was alleged to have taken place on 10-4-44. It was Govinda Rao, he would be the nearest reversioner to Jeeva Bayee alias Seetha Bayee who died on 23-5-1955. Jeeva Bayee, during her lifetime, effected alienation's. One was in favour of the second defendant under Ex. B. 15 dated 7-6-1948. She also gifted a certain item under Ex. B. 5 dated 14-7-1923 to the first defendant's ancestor. The aliens of Jeeva Bayee resisted the suit on the ground that the adoption was not validly made, and that the necessary formalities for valid adoption were not gone through. The trial court found that the plaintiff failed to prove the adoption, and that even if the evidence on record is held to be sufficient to prove it, it is not valid, as the adoption was not made by the plaintiff's mother who was the only person competent to do it. On appeal by the plaintiff, the lower appellate court reversed the finding and held that the plaintiff had proved that he was validly adopted to Govinda Rao, and that the necessary ceremonies were gone through during the adoption.
(2) That there was an adoption and that the plaintiff was adopted to Govinda Rao, cannot be disputed. Ex. A. 3 is an invitation for the adoption and for subsequent upanayanam issued by Govinda Rao. Ex. A. 4 is a Will executed by Govinda Rao on 5-10-1951. In the will it is stated that he adopted on 10-4-1944 the plaintiff. On the strength of these two documents, and oral evidence, the lower appellate court found that there was, in fact, adoption. Regarding the ceremony of giving and taking of the boy, evidence was let in through P. Ws. 1 to 3. The evidence is to the effect that the maternal uncle and maternal aunt of the plaintiff gave the plaintiff in adoption to Govinda Rao and his wife. The lower appellate court accepted this evidence and found that the plaintiff was, in fact, given in adoption by his maternal uncle and maternal aunt and was received by Govinda Rao and his wife. This finding of fact cannot also be challenged.
(3) Mr. Champakesa Aiyangar, the learned counsel for the appellants, submitted that the finding that there was no adoption and that the boy was given in adoption by the maternal uncle land aunt of the boy, is not sufficient to validate the adoption ceremony. He contended that the boy can only be given in adoption by the parents, that is, the father or mother. In the absence of the father, the mother can give the boy in adoption. If the mother does not give the boy in adoption, there must be clear evidence that she decided to give the boy in adoption and delegated the physical act of giving away the boy to the adoptive parents. It has been held that parents of the boy alone can take a decision as to the giving the boy in adoption, but that the physical act of handing over can be delegated to some other person. The contention of the learned counsel is that in this case there is no evidence that the mother of the plaintiff decided to give the boy in adoption and delegated the physical act of giving away the boy to his maternal uncle and aunt. The position of law is stated in paragraph 172 in Mayne's Treatise on Hindu Law and Usage, 11th Edn. thus:
'As the act of adoption has the effect of removing the adopted son from his natural into the adoptive family, and thereby most materially and irrevocably affects his prospects in life, and as the ceremony almost invariably takes place when the adoptee is of tender years and unable to exercise any discretion of his own in the matter, it follows that only those who have dominion over the child have the power of giving him in adoption. No other relation but the father or mother can give away a boy............... It is well settled that the parents cannot delegate their authority to another person, for instance a son, so as to enable him, after their death, to give away his brother in adoption.............Where the necessary sanction has been given by an authorised person, the physical act of giving away in pursuance of that sanction may be delegated to another.'
At page 655 in Principles of Hindu Law, D. F. Mullah 12th Edn. the position is stated as follows:
'The power (or right) to give a son in adoption cannot be delegated to any person, but the father or mother may authorise another person to perform the physical act of giving a son in adoption to a named person and can delegate someone to accept the child in adoption on his or on her behalf.'
In a recent decision of the Supreme Court reported in Lakshman Singh v. Smt. Rup Kanwar, AIR 1961 SC 1878 the law was summed up 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............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 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 overt the boy or receiving him as the case may be, to a third party.' On the authorities it is clear that the parents alone can exercise their volition to give and take the boy in adoption; but they can delegate the physical act of handing over the boy or receiving him to a third party. The only question that was strongly urged by the learned counsel for the appellants is that in this case there is no evidence that the mother exercised her volition to give the boy in adoption or that she delegated the physical act of handing over the boy to the maternal uncle and aunt of the plaintiff. P. W. 1 stated that his maternal uncle Ramachandra Tao and his wife Subdrabai handed him over to Govinda Rao and his wife and the usual homam was performed. P. W. 2. the village headman, stated that the plaintiff's maternal uncle Ramachandra Rao and his wife gave in adoption the plaintiff to Govinda Rao and his wife, and that the ceremony took place at Ottakkadu. P. W. 3 who is a relation stated that she knew about the adoption, that it took place in Ottakkadu, and that, at the time of the adoption, the plaintiff's mother, maternal uncle and others were present the plaintiff's father not being alive then. The learned counsel for the appellants contended that, even if the evidence of P. Ws. 1 to 3 is accepted in full, there is no evidence to establish that the plaintiff's mother exercised her volition and gave her consent to the adoption or that she delegated the physical act of handing over the boy to the maternal uncle and aunt of the plaintiff.
The lower appellate court found that the cumulative effect of the evidence would show that there was actual adoption performed by Govinda Rao and the mother of the plaintiff was a consenting party to the adoption. It is true that the lower appellate court has not considered as such the question whether the mother exercised her volition to give the boy in adoptions and delegated the physical act of handing over the boy to the maternal uncle and aunt. The question depends on the facts of the case. It has been proved that the mother was present during the adoption ceremony and the ceremony of giving was performed by the maternal uncle and his wife. from this it can be inferred that the mother exercised her volition to give the boy in adoption and delegated the physical act of handing over him to the maternal uncle and aunt. The delegation need not necessarily be proved by express evidence but can also be inferred from the proved facts. The mother is a widow and it is most likely that she thought that it was not auspicious to partake in the ceremony. Therefore, on the evidence I find that the mother exercised her volition to give the plaintiff in adoption and delegated the physical act of handing over him to the maternal uncle and aunt. In the result, I accept the lower appellate court's finding that the adoption is valid and the plaintiff is the adopted son.
(4) So far as the property conveyed under Ex. B. 15 to the second defendant by Jeeva Bayee is concerned, the lower appellate court found that the second defendant is bona fide purchaser, and that the property was sold for the purpose of enabling Jeeva Bayee to undertake pilgrimage to Kasi and Rameswaram. It is not disputed that she performed the pilgrimage. In the circumstances, the sale deed executed by Jeeva Bayee is binding on the plaintiff and the prayer for setting aside the sale deed cannot be granted. The appeal is allowed to this extent. In other respects the appeal is dismissed. No order as to costs. Leave is granted.
(5) Appeal dismissed.