Kalgari Rajayya vs Korepally Muttayya

In this second appeal on behalf of ten Defendants out of fourteen, the challenge lies to the propriety of the judgment and decree of the Sadar Adalut, Warangal dated 18th Aban 1358F., whereby the judgment of the then District Judge, Karimnagar, declaring Respondent 1 to be the validly adopted son of Respondent 2 and as such entitled to the moiety claimed in the suit property was affirmed. There was and had never been any contest between the Respondents. The contest as a matter of fact lay between Kalgari Rajayya, the first Appellant and Respondent 1, Kalgari Muttayya.

The case set up by Plaintiff-Respondent 1 was that in pursuance of the authority given to her by her deceased husband, the second Respondent, Kalgari Gorakka adopted the Plaintiff on 1st Dai 1345F., and a month later executed a registered deed of adoption. The first Appellant in reply set up his adoption as a main defence.

To substantiate his claim, Respondent 1 examined six witnesses. P.W. 4, Mulhar Rao spoke of the execution and subsequent registration of the deed of adoption. Rajaram, P.W. 6 was produced to rebut the evidence that Appellant 1 had not been adopted by Gorakka. The witnesses, who testified as to the factum of the Plaintiff''s adoption were Gorakka P.W. 1 the adoptive mother, Korpally Gangaram P.W. 2 the natural father of the Plaintiff, Bandapally Ram Kishtayya P.W. 3 the purohit, and Gundai Rajayya P.W. 5, who had attended the adoption, ceremony.

Both the Courts below have held that the subject-matter of the testimony of these witnesses was cogent enough to prove the alleged adoption.

The learned advocate for the Appellants confined his arguments to the contention that this evidence grievously falls short of Satisfactorily proving the gift and acceptance on the part of the adoptive mother and the natural lather of the first Respondent.

In support of this contention, he relied on the cases of - ''Rahi v. Bheekan 37 Dec. L.R. 522 (A), and - ''Dutta v. Veshunath'' 12 Nazair-e-Osmania 537 (B). He also relied on the authorities referred to in these cases and laid especial emphasis in - ''Shoshinath Ghose v. Krishna Sunderi Dasi 7 Ind App 250 (P.C.) (C) and - China Ana Muthuvay- yanagar v. Thiruvangada Animal 1942 Mad 395 AIR v 29 (D), which is also reported in 204 Ind Cas 393 (D).

The learned advocate for the Respondent on the other hand urged that the evidence adduced by the first Respondent was sufficient to prove the ceremony of giving and taking and he referred us to -- AIR 1939 152 (Privy Council) and - ''Maroti Bansi v. Radhabai AIR 1945 Nag 60 V 32 (F).

To appreciate these rival contentions, the evidence as to what transpired at the time when the alleged adoption took place may with advantage be recapitulated. In the course of her evidence, Gorakka said:

I made the adoption in my house at Sarangpur. The Brahmin, Bandapalli Ram Kishtayya performed the puja and Gangaram (P. W. 2) gave the boy in adoption. The boy was dressed in new clothes and the invitees were fed.

Gangaram stated:

The adoption took place in the house of Gorakka at Sarangpur. I gave him i.e. the boy Muttayya and Gorakka took him. Brahmin, Bandapally Kishtayya performed the puja. Gorakka had asked to give the boy in adoption to her. On that request, I gave and Gorakka took (him) in adoption. Muttayya was dressed in new clothes and the Brahmin performed the puja and (the guests) were served with food.

The Brahmin Bandapally Kishtayya deposed:

Gorakka took Muttayya in adoption in her house at Sarangpur... I performed the puja and helped Gorakka and Gangaram in the performance of puja. Gorakka dressed the boy in new clothes and after that the food was served.

In answer to the vehemently objected question came the reply that the adoption took place in the presence of the witness and that in the progress of the ceremony Gorakka addressing; Gangaram said that she takes his son in adoption and that he would be the owner of the property. In response Gangaram gave the boy in adoption. Since the adoption, the boy lived with Gorakka and also with his natural father.

Gundai Rajayya testified:

Gorakka had taken the boy in adoption in her house at Sarangpur. In the first Instance Gorakka asked the boy to be given in adoption and Gangaram gave him in adoption. There after puja was performed and the boy was dressed in new clothes and a short while later the guests were served with food... After adoption Gorakka is looking after and bringing up the boy.

This evidence went prima facie to show that a ceremony for purposes of adoption was held, to which guests and the Brahmin were invited. After the guests had assembled, Gorakka asked Gangaram to give his son Muttayya to her in adoption; in response to that request, Gangaram gave the child and Gorakka took him in adoption. To consecrate the ceremony the Brahmin, Bandapally Ram Kishtayya performed the puja; the boy was dressed in new clothes and the company which has gathered was feasted.

The cogency of the evidence commanded the credence on the part of both the Courts below. The only criticism directed against it was that it merely established the fact of offer and acceptance and not the corporeal delivery of the adoptee.

In other words, according to the learned advocate for the Appellant, it was not sufficient for the witness to say in any abstract manner that one gave and another took in adoption. They must also depose as to the manner according to which the giving and taking took place. It was to reinforce this argument that reliance was placed on the authorities referred to above. Now the case of 7 Ind App 250 (PC) (C)'' is not an authority for the proposition which the learned advocate asks us to lay down. In that case, the Judicial Committee observed as follows:

All that has been decided is that among Sudras no ceremonies are necessary in addition to the giving and taking of a child in adoption. The mode of giving and taking the child in adoption continues to stand on Hindu law and on Hindu usage & it is perfectly clear that amongst the twice-born classes, there could be no such adoption by deed, because certain religious ceremonies, the ''datta homam'' 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 practice, 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 adoption.

It would seem, therefore, that according to the Hindu usage which the Courts should accept as governing the law, the giving and taking in adoption should take place by the father handing over the child to the adoptive mother and the adoptive mother declaring that she accepted, the child in adoption.

The contest in that case was whether a mere execution of deed was an overt act sufficient to constitute an adoption, and the decision is an authority for the proposition that any overt act is not sufficient but there must be corporeal delivery of the child by a person competent to give, to a person competent to take accompanied by a declaration on the one side "I give the child In adoption" and on the other "I take the child in adoption". The same comment applies to the decision of the Privy Council reported in - AIR 1931 109 (Privy Council) .

The case of Shoshinath Ghose (C) was considered by a Bench of the Madras High Court in 1942 Mad 395 (D). The importance of this case lies in the fact that it has been strongly relied on in 37 DLR 522 (A) and 12 Nazair-e-Osmania 537 (B). In that case the widow had said that her husband and she herself went and brought the child to their house when he was five years old in order to adopt him so as to perpetuate their lineage and further said that they asked the natural father of the boy that he should give the boy to them so that they might have him as their son. Then they got his tonsure ceremony performed.

The natural father stated that the adoptive father told him and the boy''s mother that he was going to adopt the boy and he asked for their permission to do so. The witness was not actually asked whether he gave his consent. The learned Judges, in spite of that held that there could be no doubt that he did adopt because the adoptive father and his wife took the boy away with them there and then and thereafter brought him up.

It may be observed that the sequence of events as were adumbrated in - ''Shoshinath''s case (C)'' were wanting in the Madras case (D). Despite that, the learned Judges observed:

It cannot be doubted that Srinivasa Ayyangar asked the natural father to give the boy in adoption, that the father consented and that he handed over the boy to him to be taken in adoption.

It was, however, argued on behalf of the party contesting the adoption that this was not sufficient. According to the contestant, there should have been a formal ceremony and words mentioned by Baudhayana uttered, otherwise there could be no giving and taking within the meaning of the Hindu Law. In support of this contention, reliance was placed on - 7 Ind App 250 (PC) (C), - ''Kuppusami Reddi v. Venkatalakshmi Ammal AIR 1915 Mad 1221 V2 (H), - ''Govindayyar v. Dorasami'' 11 Mad 5 (FB) (I) and ''1931 PC 109 (AIR V18) (G). Leach C.J. who delivered the judgment of the Court overruled the contention by observing:

But none of these cases goes to the length which he asked the Court to go. In - ''Shoshinath Ghose v. Krishnasundari Dasi (C)'', the Privy Council had to consider whether there was a, valid adoption when there had been no actual giving and taking of the boy but the mere exchange of deeds of gift and acceptance. Their Lordships held that this was not sufficient....

In making these observations, the Board was considering whether the exchange of the deeds was sufficient and they were of the opinion that it was not. They were not laying the proposition that the utterance of the words used by Baudhayana was necessary. They were, indicating that the essentials for valid adoption were the handing over of the boy by his father for this purpose and the acceptance by the adoptive parent. Whether there has been a giving and a taking are questions of fact which can be proved by evidence of what is said and what happens on the occasion.

After discussing the authorities cited before the Bench, the learned Chief Justice with whom Kuppuswamy Ayyar, J. concurred concluded with these observations:

We hold that the Hindu Law does not require that there shall be formal ceremony when the boy is given and accepted. 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, that the boy shall be handed over and that the adoption ceremony shall be performed when the parties belong to twice- born classes.

Quoting these observations, Taqi J. in the case of - ''12 Nazair-e-Osmania 537 (B)'' laid down, at page 543:

In our opinion, according to Hindu Law it is essential the ceremony of giving and taking should be proved. What evidence would be acceptable to the Court in proof of that essential is purely a question of evidence, the sufficiency of which depends on the facts of each particular case. No hard and fast rule in generalised form can be laid down which will cover each case.

For this reason, we are not prepared to lay down as a general rule that it would invariably be insufficient proof if the witness merely states that the ceremony was performed. Circumstances are possible in which such a statement may be held to be sufficient to prove the alleged adoption. For example, if the Court is satisfied that the witness had knowledge of the significance of the ceremony such a statement would be deemed to have the intended probative force.

These observations seem to have been made in view of the decision of the Privy Council in the case of AIR 1939 152 (Privy Council) . In that case, their Lordships held that the evidence that the boy who was alleged to be adopted was present at the time when the Sub-Registrar put to his father and to the widow who adopted the boy the questions whether they had executed the deed) of adoption, is sufficient to prove a giving and taking.

In the view of Sripatrao J., (as he then was) this was an over-simplification of the essential ceremony which was not warranted by the rule enunciated in Nirnaya Sindhu and he expressed his concurrence with the ratio decidendi of the case reported in 37 D LR 522 (A)''. According to that authority, a detailed proof of the act and movement of the adoptive and natural parents; of the adoptee in the process of gift and acceptance was necessary in order to prove a valid adoption.

Having regard to the evidence brought on the record in this case, we need not enter into the controversy as to whether the view of the Privy Council in ''Biradh Mal''s case (E)'' had been rightly distinguished in 37 DLR 522 (A)'' on the ground that it was dealing with a Jain adoption. The evidence in this case has been summarised above.

The cumulative effect of it is that in .the assembly of the guests, who had been invited to witness the ceremony of adoption, the adoptive mother asked the natural father to give his son in adoption and the natural father, after expressing his consent, gave the child to the adoptive mother, and thereafter the adoptee remained under the care and tutelage of the parent, who adopted him.

This evidence according to the ratio governing the China Ana Muthuvayyangar Vs. Thiruvangadammal and Others, '' Would be held to be sufficient in proof of the alleged adoption inasmuch a corporeal delivery of the boy would stand corroborated by the fact that he lived with the adoptive mother after the ceremony was over. The cases of 37 DLR 522 (A)'' and ''12 Nazair-e-Osmania 537 (B)'' are distinguishable on the ground that m both these cases, the adoptive mothers denied the alleged adoption and therefore it was held that a strict standard of proof was required to evaluate the evidence.

In the present case the adoptive mother has admitted the claim and entered the witness box to support it by her sworn testimony. The natural father has also come forward to support the alleged adoption. Not only that, an adoption deed is also executed and formally registered.

In these circumstances, we find no occasion to differ from the view of the evidence taken by the Courts below. The result is that the appeal falls and is hereby dismissed. The Respondents will get the costs of this Court and the Courts below from the Appellants.