GANGA BAYEE Vs. P G KRISHNA RAO

JUDGEMENT

(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: