( 33 ) UNFORTUNATELY the evidence adduced by the defendants suffers from intrinsic infirmities and vital lacuna. As has already been seen there is no shred of evidence with regard to factum of adoption and all that has come on the record is that Lachhi Ram Sood, deceased, was acknowledging defendant No. 1 to be his adopted son and he was treating him as his son. It is well settled that under Hindu Law the physical act of giving and receiving is absolutely necessary to the validity of adoption. This is not so only in the case of twice-born classes but also in the case of Shudras. This ceremony is of the essence of adoption and law does not accept any substitute for it. Mere expression of consent or execution of a deed of adoption, though registered but not accompanied by an actual delivery of the boy, does not operate as a valid adoption. In Lakshman Singh Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378 (7), the Supreme Court stated the legal position thus :

"under the Hindu Law, whether among the regenerate casts 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 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 very depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. "

( 34 ) REFERENCE in the said judgement was, inter alia, made to the leading decision of Judicial Committee in Shoshmath Ghose v. Krishnasundari Dasi, ILR 6 Cal. 381 (8 ). In the said case the question arose whether there can be, according to Hindu Law and usage, adoption simply by deed and without corporeal delivery and acceptance of the adopted child which almost universally treated as an essential part of adoption in Dattaha form. Their Lordships of the Privy Council answered the question in the negative. It is thus abundantly clear that ceremony of giving and taking constitutes an essential part of adoption amongst Hindu and onus lay heavily on the defendants to prove the fact of adoption by cogent and reliable evidence. In this context I may extract below the relevant sentence from Article 512 of Mulla's Hindu Law:

"but the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. "this statement of law has- been quoted with approval by the Supreme Court in a recent decision in Banwari Lal v. Tirlok Chand and others, AIR 1980 SC 419 (9), upon which reliance has been placed by council for both, the parties, although for different reasons.

( 35 ) THE facts of the case Banwari Lal v. Tirlok Chand and others were that one Gobind Ram died in 1952 leaving a will under which his estate (specified in the will) were to his brothers widow Smt. Chhoti as a life tenant with no power of alienation and after her death it was to go to Banwari Lal, his adopted son. Smt. Chhoti died in 1955 leaving a will under which she also devised the entire properties to Banwadi Lal, described as Gobind Ram's son. The said will was held to be genuine and operative so as to constitute Banwari Lal as heir and-owner of properties of Gobind Ram but his adoption was not upheld by the High Court in appeal. The Supreme Court observed that :

"in this view of the matter, the failure to establish the stated relationship is not decisive of the point under consideration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawful adopted Banwari Lal but for the reason that he treated Banwari Lal as

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