PARTAB BAWAJI JIVAJI Vs. BAI SURAJ

JUDGEMENT

(1.) THIS appeal raises an important question as to the validity of an adoption by an unchaste widow among the three regenerate classes. The suit out of which this appeal arises was filed by the three minor daughters of one Bawaji Jiwaji through their next friend, Abhesing, for a declaration that the adoption of defendant No.1 by defendant No.2 is invalid and that the alienations of Bawaji's property by defendant No.1 are ineffective. Bawaji died about the year 1928 leaving behind him his three minor daughters and his widow Baiji, defendant No.2, and a minor son named Bhika who died in his infancy. Defendant No.2 is said to have been living in illicit intimacy with defendant No.3 and she claims to have taken his son, defendant No.1, in adoption. After his alleged adoption defendant No.1 alienated Bawaji's property to defendants Nos. 4 to 8 Hence the minor plaintiffs filed this suit through their next friend to have those alienations set aside alleging that defendant No.1 was not the validly adopted son of Bawaji, that there was no adoption in fact, and that even if Baiji took him in adoption, it was invalid by reason of her unchastity. During the pendency of the suit plaintiffs Nos. 1 and 2 attained majority and they elected not to proceed with the suit. Hence the suit was proceeded with only on behalf of minor plaintiff No.3. Defendant No.1 also died during the pendency of the suit and his widow Bai Suraj was brought on record as his legal representative. She contended that her husband had been taken in adoption by defendant No.2 and that the adoption was valid. Defendants Nos. 2 and 3 remained absent and put in no written statement. The other defendants contended that Bai Baiji, defendant No.2, had taken defendant No.1, Sursing, in adoption with all religious ceremonies and that, therefore, the plaintiffs had no right to the declaration sought for. The lower Court held that the factum of the adoption of defendant No.1 by defendant No.2 was proved, and that although it might be held that defendant No.2 was unchaste and was living with defendant No.3 since 1931, yet the adoption was not invalid on that ground. The suit was, therefore, dismissed with costs and plaintiff No.3 has presented this appeal through her next friend.

(2.) THERE is ample evidence to prove the factum of defendant No.1's adoption. The adoption is alleged to have taken place on May 1, 1930, in the presence of three priests and several villagers. Datta Homa was performed and the acts of giving and taking took place in front of the house of defendant No.2. Dalsukhram who officiated as the priest on the occasion describes the details of the ceremony. He says that in his presence defendant No.3 offered his son in adoption to defendant No.2 and that she accepted the offer and took defendant No.1 in adoption in the presence of several Brahmins and other villagers. Two other witnesses Someshwar and Mani -shankar have also deposed to the same effect. They assisted Dalsukhram in the performance of the ceremony and acted as Varuna -Brahmins. They too state that defendant No.3 gave defendant No.1 in adoption and defendant No.2 took him in adoption in their presence. Chorashi -dinner was given on that day to all the Brahmins of the village. Somabhai and Shivabhai swear that such a dinner was given. They were not present at the time of the ceremony but they state that a dinner was given on account of the adoption of defendant No.1 by defendant No.2. At the time of adoption a group photograph was taken and the photographer has been examined to prove it. It shows defendant No.3 giving his son, defendant No.1, in adoption to defendant No.2. In the photograph appear the three plaintiffs, the priest and defendants Nos 1 to 3 The plaintiffs' next friend was asked to identify these persons in the photograph, but he evaded it by saying that he was unable to identify any person in the photograph. On May 29, 1930, a formal deed of adoption was executed by both defendants Nos. 2 and 3 and was registered. Thus every possible precaution was taken to see that the evidence regarding the factum of adoption was complete. When both the giver and the taker were ready to complete the adoption, there was no reason why any essential part of the ceremony should Have been omitted. The learned Subordinate Judge who examined the witnesses was satisfied that they were stating the truth and held that defendant No.1's adoption by defendant No.2 was duly proved. We agree with that finding.

(3.) THE purpose of an adoption by a widow is the continuation of the family line and the spiritual benefit of her deceased husband, and it would be hard that her impurity or want of chastity should deprive him of the benefits, which, according to Hindu ideas, accrue to him from the adoption. It may now be taken as well -settled that a widow of one of the three regenerate classes, though unchaste or otherwise impure, can make a valid adoption, provided she performs the physical act of taking the boy in adoption and delegates the performance of the necessary religious ceremonies to some one and those ceremonies are duly performed by him. Mr. Shah, however, contends that there is no evidence in this case that defendant No.2 thus delegated the performance of the religious ceremonies to any of the priests who were present there. He relies upon the assertion made by defendants Nos. 4 and 8 in their written statement that defendant No.2 adopted defendant No.1 after performing all the necessary ceremonies.