# LAKSHMAN SINGH KOTHARI v. SMT. RUP KANWAR - **Citation:** [1962] 1 S.C.R. 477 - **Court:** Supreme Court of India - **Decided:** 1962 - **Case number:** Civil Appeal No. 430 of 1957 - **Bench:** K. Subba Rao, Raghubar Dayal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakshman-singh-kothari-v-smt-rup-kanwar-2139 - **Pages:** 15 ## Headnote Hindu law-Adoption-Validity-Essential requirementsCeremony of giving and taking-Delegation of authority. In order that an adoption may be valid under the Hindu ):..aw there must be a formal ceremony of giving and taking. This is true of the regenerate castes as wf!Jl 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, Salig Ram v. 1\1 unshi Rani Wanchoo ]. l\1arch 22. 478 SUPREME COURT REPORTS [1962) I96I Held, that no valid adoption had taken place. Shoshinath Ghose v. Krishnasundari Dasi, (1880) I. L. R. 6 Lakshman Singh Cal. 38r, Krishna Rao v. Sundara Siva Rao, (1931) L. R. 58 I. A. Kothari r48, Vijiarangam v. Lakshuman, (1871) 8 Born. H. C.R. 244, v. Shamsing v. Santabai, (r.901) I. L. R. 25 Born. 551, and ViySmt. Rup Kanwar yamma v. Suryaprakasa Rao, I. L. R. r942 Mad. 608, referred to. Biradhmal v. Prabhabhati, A. LR. r939 P.C. r952, explained. ## Text ..... • 1 S.C.R. SUPREME COURT REPORTS 477 argument; and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigan's Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para. 48 can Munshi Ram succeed to the property of Nanak Chand. We therefore allow the appeal and set aside the decree of the courts below a.nd dismiss the suit of the plaintiff-respondent so far as the property of Nanak Chand is concerned. In the circumstances we also order the parties to bear their own costs throughout as the High Court did. Appeal allowed. LAKSHMAN SINGH KOTHARI v. SMT. RUP KANWAR (K. SUBBA RAO and RAGHUBAR DAYAL, JJ.) Hindu law-Adoption-Validity-Essential requirementsCeremony of giving and taking-Delegation of authority. In order that an adoption may be valid under the Hindu ):..aw there must be a formal ceremony of giving and taking. This is true of the regenerate castes as wf!Jl 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, Salig Ram v. 1\1 unshi Rani Wanchoo ]. l\1arch 22. 478 SUPREME COURT REPORTS [1962) I96I Held, that no valid adoption had taken place. Shoshinath Ghose v. Krishnasundari Dasi, (1880) I. L. R. 6 Lakshman Singh Cal. 38r, Krishna Rao v. Sundara Siva Rao, (1931) L. R. 58 I. A. Kothari r48, Vijiarangam v. Lakshuman, (1871) 8 Born. H. C.R. 244, v. Shamsing v. Santabai, (r.901) I. L. R. 25 Born. 551, and ViySmt. Rup Kanwar yamma v. Suryaprakasa Rao, I. L. R. r942 Mad. 608, referred to. Biradhmal v. Prabhabhati, A. LR. r939 P.C. r952, explained. 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 appellant. Mukat Behari Lal Bhargava, B. L. Aren and Naunit Lal, for the respondent. 1961. March 22. The Judgment of the Court was delivered by Subba llao J. SUBBA RAo, J.-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: I Sujan Singh I Moti Singh (defendant) Aman Singh I I Sobhag Singh I Zalim Singh I Lakshman 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 • • 1 S.C.R. SUPREME COURT REPORTS 479 Singh, is defendant Moti Singh's paternal uncle. In z96z the year 1923, Sujan Singh was aged about 70 years, S h Lakshman Singh and Moti Singh was about 50 years, and Moti ing 's Kothari wife, Rup Kanwar alias Rup Kanwar Bai, the resv. pondent herein, who was subsequently brought on Smt. Rup Kanwar record in place of Moti Singh after his death, was - about 45 years old. Moti Singh had no son and, thereSubba Rao J. fore, Sujan Singh was anxious to have a boy wellversed in vedic-lore to be adopted to his son Moti Singh to perpetuate his 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 SUPREME COURT REPORTS [1962] '96' bringing of the boy at the instance of his natural father to the house of Sujan Singh, and Moti Singh Lakshman Singh Kothari receiving the boy by putting his hand on his head v. were sufficient compliance with the Hindu Law docSmt. Rup Kanwar trine of "giving and taking" and, therefore, the adop- -- tion was valid. Subba Rao .f. 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 filed in the case did not establish that any ceremony of "giving and taking" took place on :February 14, 1923. Ex. P/I 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 .. • • r } I S.C.R. SUPREME COURT REPORTS 481 It was also mentioned that, as Zalim Singh wished r96r that permission of Moti Singh was required, Moti Lakshman Singh Singh would go to Gurukul for getting Lakshman J{othari Singh admitted in the institution and his name would v. also be entered as the guardian and father of Laksh- omt. Rup ri The version given by this witness is natural and the v. last answer given by him stamps the evidence with a Smt Rup Kanwar seal of impartiality. His evidence is consistent with -- Subba l?ao J, 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 Me war State a,nd 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). I told Dhabaiji Hiralalji that he would give Bapu on my behalf in adoption to Moti Singhji. H,espectcd father was at Mal Okneda near Mander Station in the way. I asked Hiralalji to h:iive Bapu see him (Respected father). Dhabaiji affer 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 presuma- ' bly on some legal advice. This is an attempt to give a legal flavour to an ordin;.ry act of sending a boy 486 SUPREME COURT REPORTS [1962] '96' with an elderly gentleman to another place. We canLakshman Sinsh not act upon the self-serving statement made by this Kothari person in 19~8. It is impossible to conceive that the v. necessary ceremony of adoption, that is, "giving and Snit. Rup Kanwar taking" would be done in such a casual manner and that the natural father or the natural mother or the Subba Rao f. 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 Sujan Singh's 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 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 place pursuant to the settled intention of the parties to take the plaintiff in adoption. A natural father, the argument proceeded, need not r.hysically hand over the boy to the adoptive father, bPit 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". Golapchandra 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 irl'l;ention on the part of the r .. •• I S.C.R. SUPREME COURT REPORTS 487 giver and the taker without the presence of the boy 1961 is not sufficient. Nor are deeds of gift and acceptaLakshman Singh nee executed and registered in anticipation of the Kothari intended adoption, nor acknowledgment, sufficient v. by themselves to constitute legal adoption, in the Smt. Rup Kanwar absence of actual gift and acceptance a cc om panied by actual delivery; a formal ceremony being esseuSubba Rao J. tial for that purpose." Much to the same effect it is stated in Mayne's Hindu Law, 11th 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 requite 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 "'ll.lleged, 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 ca~e which shows that there can be an adoption by deed in the manner contended for; all that has been decided is that, amongst (l) (1880) I.L.R 6 Cal. 381. Lakshman Singh Kothari v. Stnt. Rup J(anwar Subba Rao J. 488 SUPREME COURT REPORTS [1962) Sudras, no ceremonies are necessary in addition to the giving and taking of the child in 11.doption., ..... ............ 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 handing over the child to the adoptive mother, and the adoptive mother declaring that she accepts the 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 (') thus: "The gift and acceptance in such a case must, as Sir T. Strange has observed be manifested by some overt acb; 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 tcr 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 hol.d, t~erefore, with the learned J udgy, that the adopt10n is proved and effectual." This view was approved by the Bombay High Court. (I) (r93I) L.R. 58 l.~. 14•. (2) (187r) 8 Bom. H.C.R. 244. r I . / j 1 S.C.R. SUPREME COURT REPORTS 489 in Shamsing v. Santabai (1). A division bench of the '96' Madras High Court in Viyyamma v. Suryaprakasa Lakshman Singh Rao(') applied the principle to a converse case of an Kothari adoptive father delegating his power to accept the v. adoptive boy to another. Sir Lionel Leach, C.J., in Smt. Rup Kanwar extending the rule of delegation to a case of receiving h Subba Rao ]. says at p. 613 t us: "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 pa- .' :·.:rl\nts exercised their volition to give and take the boy · "in adoption, either of them could, under certain un- ' avoidable compelling circumstances, delegate his right •; to give or the right to receive the adoptive son, as the . , '·" . case may he, to a third party. Strong reliance is placed by learned counsel for the a ppell&nt on the decision 'of the Judicial Committee in Biradhmal v. Prabhabhati ('). 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 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 was 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: _1 " ......... their Lordships think that the evidence · that the boy was present at the time when the subregistrar put tb his father and to the widow the (1) (1901) I.LR. 25 Born. 551. (2) I.L.R. 1942 Mad. 608. (3) A.I.R. 1939 P.C. 152. 62 490 SUPREME COURT REPORTS [1962] I96I questions whether they had executed the deed is Lakslnnan Singh sufficient to prove a giving and taking." Hothari This sentence is rather laconic and may lend support v. to the argument that mere putting questions by the Smt. Rup Kanwar Sub.Registrar would amount to giving and taking of the adoptive boy; but the subsequent discussion makes Subba 11" 0 f. 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 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 nf 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 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 t"" I 'I 1 S.C.R. SUPREME COURT REPORTS 491 exigencies of the situation arising out of diverse cir- '96' cumstances necessitated the introduction of the docL k h 5 . h . h f a s nian in: trme of delegation; and, therefore, t e parents, a ter Kothari exercising their volition to give and take the boy in v. adoption, may both or either of them delegate the Smt. Rup Kanwar physicii.l act of handing over the boy or receiving him, as the case may be, to a third party. Subba Rao J. 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. 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.