D. H. SHUKLA, M. K. SHAH, J.

( 1 ) THE original plaintiff whose suit for partition and accounts of the properties belonging to his deceased adoptive father was dismissed has preferred this appeal challenging the judgment and decree by which his special suit No. 71 of 1970 was dismissed by an order dated 31 July; 1972 passed by the learned Civil Judge (Senior Division) at Jamnagar. . . . . . . . . . . . .

( 2 ) IT is to be seen that the document is executed by Gaga Punja. That person is not examined though alive. The original document is also not produced and brought on record; but a certified copy is on record at Ex. 67. It was alleged that the original was with deceased Malde that is the deceased husband of defendant No. 1 and that as it was not forthcoming a copy should be exhibited. Now ordinarily a document would go after registration to the person who had executed the same that means it would go to Gaga Punja and unless Gaga Punja comes and explains as to what happened to the original document it would not be permissible to have a copy on record. . . . . . . . . . . . . . . .

( 3 ) THIS document is therefore of a highly suspicious nature and cannot be relied upon particularly when the executants of the documents viz. Gaga and Liribai who are alive are not examined.

( 4 ) BUT apart from this a deed of adoption even if registered can not be pressed into service to prove the factum of adoption which if challenged must be established by oral testimony of persons who were present at the ceremony deposing to the effect that all the formalities including the act of physically giving and taking of the boy in lawful manner had taken place. The factum of adoption is required to be proved by cogent evidence and mere execution and registration of an adoption deed cannot be a substitute for the same.

( 5 ) MR. Mehta then took us through the evidence of priest Lalji Karsanji who according to the plaintiff was the person who performed the necessary ceremonies with regard to adoption on 21st April 1953. . . . . . . . . . . . . . . . . . . . . HE then refers to the performance of Puja of Satyanarayan and Chandla ceremony. In the Satyanarayan Puja Malde Matubai Gagabhai Liribai and Maruthat is plaintiff were present besides other village people. This was performed at the house of Malde. Maru was given bath first. Then Chandla was applied on his forehead and after he was made to sit near Shri Bhagwan Sankalpa was first made by Gaga and Liribai to the effect that Mulu was being given by Gaga and Liri as son to Malde. Malde and Matubai made the Sankalpa of taking Mulu as their son. Mulu was already ready to be adopted. Then Slokas were chanted. This is the only ceremony he refers to. He does not refer to any physical act of giving and receiving which is absolutely necessary to the validity of adoption nor does he refer to the usual Datta homan that is oblations of clarified butter to fire nor any other minor ceremonies such as putresti Jag (sacrifice for male issue) to which ceremonies reference has been made by Mulla in sec. 488 of his Principles of Hindu Law at page 553. The evidence therefore of the Gor or the priest who is supposed to have performed the necessary ceremonies for the adoption does not establish the performance of the most essential ceremony viz. the physical act of giving and receiving as also the ceremony of Datta Homam and minor ceremonies such as putresti jag (sacrifice for male issue) etc. As Mulla in sec. 489 says; the physical act of giving and receiving is absolutely necessary to the validity of an adoption. This is so not only in the case of the twice born classes but also in the case of Shudras. This ceremony is of the essence of adoption and the law does not accept any substitute for it. Mere expression of consent or the 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. To constitute giving and taking in adoption all that is

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