In the case of Dwyamushvayana adoption, the ceremony of giving and taking is essential and cannot be presumed from the mere execution of an adoption deed.

C. B. BHARGAVA, J.

( 1 ) THIS appeal by the plaintiff and directed against the judgment and decree of the senior Civil Judge No. 1. Jodhpur. dated the 11th December, 1962. involves a question of unusual character for decision.

( 2 ) THE parties to the case are known as Bhagats that is offsprings of dancing girls. Chaterdas and Girdharidas were real brothers, the former being the elder one. Chaterdas had only one son that is Dhansukhdas the plaintiff. Plaintiffs case is that on Migsar Vadi 1st Smt. 1954. corresponding to 25th November. 1897 he was adopted as Dwvamush-yayana son by Girdharidas whose first wife had died about a year after the marriage and since then the latter gave UP the idea of remarrying and adooted an attitude of renunciation. However, near about Smt. 1962. he married Mst. Sigrati and from her a daughter named Ramrakhi who is defendant no. 1 was born. Defendant No. 2 is the son of Ramrakhi. Girdharidas and chaterdas remained joint till Jeth Sudi 15. Smt. 1987 when they divided their properties and started living separately. Plaintiff being the son of both brothers, used to live with both of them as their son. On 12-9-1949. under the influence of respondent No. 1 and her mother. Girdharidas made a gift of his properties mentioned in para 6 of the plaint in favour of respondent No. 1 and her son respondent No. 2 and executed a registered document in their favour. Girdharidas died on Posh Sudi 8 Smt. 2006 (correspondent to 27th December 1949 and his last rites were performed by the plaintiff. Plaintiff instituted a suit for cancellation of the said gift-deed but it was dismissed by the trial court on 16-10-1958 on the ground that no consequential relief for possession was prayed. Hence the plaintiff instituted the present suit on 1-9-1959 for recovery of the properties gifted by girdharidas in favour of the respondents.

( 3 ) THE suit was contested by the respondents and plaintiffs status as dwyamushvayana son of Girdharidas and the fact of his adoption in Smt. 1954 was denied. It was stated that Girdharidas at the age of 16 years had married one mst. Anandi in Smt. vear 1954 but the latter died in Samwat Year 1955. On her death. Girdharidas married Mst. Sigrati in 1956. It Was denied that Girdharidas bad given up the idea of re-marrying or had adopted an attitude of renunciation. It was also denied that any agreement regarding the plaintiffs adoption was executed in Smt. 1954, and if such document was in possession of the plaintiff it was false and fabricated. It was also stated that Girdharidas being a minor in Smt. 1954 was incompetent to enter into any contract and the plaintiff too was not even born on the alleged date of adoption. It was also stated that Girdharidas and chaterdas had separated in Smt. 1965 although a division of immovable property took place in Smt. 1987. It was admitted that Girdharidas made a gift of the disputed property in favour, of the respondents but it was stated that the gift was made voluntarily and not under the undue influence of the respondent No. 1 and her mother. It was stated that the respondents were in possession of the disputed properties from the time of the execution of the gift-deed in their favour. It was also stated that the plaintiff never lived with Girdharidas nor did he give any part of his earnings to the latter. It was admitted that the plaintiff had filed a suit for the cancellation of the sift deed but it was stated that the plaintiff had intentionally omitted to sue for the consequential relief of possession and so the present suit was barred under Order 2 Rule 2 C. P. C. Plea of res iudicata and the bar of limitation was also raised.

( 4 ) THE learned Senior Civil Judge on the pleadings of the parties framed as many as 10 issues but for the decision of this appeal, only issue No. 1 needs be set out:

"did Girdharidas execute the writing dated Miesar Vadi 1 Smt. 1954 and is the plaintiff Dwvamushvavana son of Girdharidas?"

Learned counsel for the