9911796707
TMI Blog1943 (9) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the adoption and also challenge the transfer by Shankar to the Plaintiff. It is important to note at this stage exactly what the challenge is. So far as the adoption is concerned, the Defendants said (1) that Trimbak had expressly prohibited his widow from adopting and (2) that in any case she was only 13 years old at the time, and so had not attained years of discretion. The first Court found against the Defendants on both these points, and that finding was not challenged before me by either side; nor does it Appear to have been challenged in the lower appellate Court. It was argued before me- and that also seems to have been the position taken up in the first Court at the argument stage- that the factum of adoption was also challenged ; but the words used in the written statement are: It is denied that thirteen years old Mt. Girja took thirty years old Shankar in adoption with due rites and ceremonies as stated by the Plaintiff. 2. This is ambiguous. One does not know whether the factum of adoption is admitted and only its validity challenged on the ground that the due rites and ceremonies were not performed, or whether this is a general denial of the factum, or whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat all that was legally necessary and essential for the validity of the transaction was duly performed. I would refer again to the Privy Council case in A.I R. 1939 P. C. 152 (3) at p. 155, where the sole evidence was that the parties were present before the Sub-Registrar that they admitted execution of a deed of adoption setting forth the giving and the taking. It was held that this admission, coupled with their presence, was enough to establish the giving and the taking. If therefore there is in the written statement a bare denial of the adoption it will be taken to imply a denial only of the fact of adoption and not of its legal validity. The principle of the rule given in O.6, R. 8, Civil P. C, would apply. The Plaintiff alleged here that he was adopted. That was enough. Nothing more was necessary except of course the date and so forth. The Plaintiff then stated that certain religious ceremonies (which incidentally were not essential for the adoption) were also performed. The Defendants denied the factum of the adoption and denied that these unessential ceremonies were performed. In doing that they did not deny the legality of the adoption. But in spite of that their case has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Council in A.I.R. 1939 P. C. 152(3) to show to what extreme simplicity the ceremony of giving and taking can be reduced. All that is necessary is that there should be some overt act to signify the delivery of possession of the boy from the one family to the other: see I.L.R (1942) Mad. 608(4) and Mayne's Hindu Law, 10th Edn., p. 251. Delivery of possession is equally necessary in other matters; but, often it can only be sym. bolical, as in the case of land. All therefore that the law requires to evidence delivery is some overt act to signify the giving and taking. It is not even necessary that words should be spoken; signs would be enough, a nod or a smile. It will certainly be enough for the one to say 'I give' and for the other to say 'I take' without anything further provided all are present. 8. If I have not interpreted the learned trial Judge aright as to his findings about the facts then I disagree with him. He holds that there was a ceremony of adoption, and no one can dispute that. He finds that all concerned were anxious to have the adoption made. He says that the Plaintiff was the prime mover and the one most interested because he was anxious to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en mutter a jargon, which they themselves probably do not always understand, and the principal parties are continually told at different points in the ceremony what to do and say by a dozen different busy bodies, all talking at once, it becomes very difficult to remember exactly what was done though the fact that the essentials were gone through can be recollected without hesitation. As I have said when all the precautions we find here for a proper and valid adoption were taken it is difficult to believe that the one essential was omitted. I therefore believe the evidence about the giving and taking and consider that the form of this part of the ceremony matters little so long as the principal parties knew what their words and actions imported; and about that I have no doubt whatever. It is to be observed that even the first Court does not hold that this ceremony was not performed: all it states is that there is no proof of an actual physical giving and taking. 11. I can understand the reluctance of the lower Courts to uphold this adoption. The widow was at that time contemplating another marriage, and we find an outsider like the Plaintiff, who is even more of an intruder than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions were engineered to eject the relatives of the deceased Trimbak, from their inheritance by means of a law suit. 13. I am not able to accept all this as a proper decision on the matters which have to be considered here. There can be no doubt that the sale deed and the exchange deed actually took place. Both are registered documents, and both are admitted by Defendant 6. The attack on the point of consideration is made, not by the parties to the deeds who uphold them, but by strangers. They are persons who cannot benefit even if the transaction is set aside, because once the adoption is established the property belongs to Defendant 6. He can do what he likes with it, and these others have no interest or concern in it whatever. The law does not allow strangers who have no interest at stake to inter-meddle with other persons' affairs and busy themselves with trying to undo what the parties themselves have done and wish to uphold. It is true Defendant 6 challenged the deeds at one time; but he withdrew the challenge in his pleadings and thereafter supported the documents as well as the consideration. It is well established that in such circumstances no stranger can challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
