CHAUTH MAL Vs. HAGAMI LAL

JUDGEMENT

(1.) THESE are two connected appeals directed against the judgment and decree by the Senior Civil Judge, Udaipur dated 24 9-1966.

(2.) THE facts giving rise to these appeals are as follows: One Ganeshlal died leaving behind his widow Smt. Ganga Bai. He had no ton and consequently Smt. Ganga Bai adopted respondent No. 2 Roshanlal to her husband Ganeshlal by a registered adoption deed dated 30-10-1950, a copy of which has been placed on the record and marked Ex. A. 3. Shortly thereafter she executed an agreement to sell the house in question belonging to her husband for Rs. 800/-in favour of appellant Chauthmal and obtained Rs. 200/- in cash as part of the sale price. A copy of this agreement has also been placed on the record and marked Ex. A. 2. It may be relevant to state, here that Chauth Mal was already occupying a part of house i. e. two 'medis', a covered stair-case and also an open terrace as a tenant of Ganeshlal. However, before the sale deed could be executed, it appears that relations between Smt. Ganga Bai and Roshan Lal got strained, with the result that ignoring the first adoption she adopted respondent No. I Hagami-Lal who was then a minor on 20-1-1954. This adoption was oral and is not evidenced by any writing. On 11. 3. 51 Roshan Lal executed a sale deed in respect of the house in question in favour of Chauthmal in pursuance of the agreement Ex. A. 2. A copy of this sale deed has also been produced and marked Ex. A. 1. Two days after the execution of the said sale deed Roshanlal and Mohanlal, brother of Hagamilal as guardian defacto of Hagamilal entered into an agreement whereby the dispute as to the adoption of Roshanlal and Hagamilal by Smt. Ganga Bai was amicably settled. Roshan Lal chose to withdraw himself from his adoptive family and accepted Hagamilal as the validly adopted son of Ganeshlal. In order to avoid litigation Mohanlal also agreed on behalf of Hagamilal that Roshanlal would be paid Rs. 1300/- in lieu of giving up his right to the property of Ganeshlal. It was further agreed that the transactions entered into by Roshanlal as the adopted son of Ganeshlal would be recognised and not challenged by Hagamilal. THE original agreement entered into between Mohanlal, as guardian of Hagamilal minor and Roshan Lal is marked Ex. 1. THEre is no dispute between the parties that this agreement bears the signatures of Mohanlal and Roshanlal. As to what are the implications of this agreement is of course a point of serious dispute and will be dealt with at the proper place.

(3.) LEARNED counsel for the appellant has urged that the courts below have erred in holding that Roshanlal's adoption by Smt. Ganga Bai was not valid for want of evidence of giving and taking. He has also argued in this connection that the courts below have erred in upholding Hagamilal's adoption by Smt. Ganga Bai. This point, in my opinion, cannot be accepted. No doubt there is registered adoption deed Ex. A 2 in favour of Roshanlal, evidence regarding giving and taking in connection with his adoption is conspicuous by its absence. It is not disputed that giving and taking was essential to validate the adoption, and mere existence of a registered deed of adoption could not fill up the lacuna caused by lack of the ceremony of giving and taking. The best person to support the case of Roshanlal's adoption by Smt. Ganga Bai was undoubtedly Roshanlal himself. But even he states that the ceremony of giving and taking did not take place and there is no other evidence in this respect. On the other hand there is over-whelming evidence from the side of Hagamilal which clearly indicates that his natural mother had delegated authority to his elder brother Mohanlal to give him in adoption and that Smt. Ganga Bai took Hagamilal in adoption at the time the ceremony of adoption took place in presence of her relations. No exception can be taken to this evidence and no criticism worth the name has been advanced in respect of it. All that has been argued is that the natural mother of Hagamilal should have physically handed over the boy to Smt. Ganga Bai. This is not essential. It is trite law that the authority of giving the boy in adoption can be delegated by the natural parents. In this state of evidence, the learned Senior Civil Judge was perfectly justified in coming to the conclusion that Roshanlal's adoption was not proved to be valid whereas Hagamilal's adoption is proved to have taken place in accordance with law and I do not see any reason to interfere with that finding.