The giving and taking of the child in adoption with intent to transfer the child from the family of birth to the family of adoption is an essential requirement for a valid adoption under Section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956.

K. Natarajan, J.

1. This second appeal has been preferred against the judgment and decree of the learned Subordinate Judge, Devakottai, dated 12. 1997 in A.S. No. 10 of 1986, reversing the judgment and decree of the learned District Munsif in O.S. No. 262 of 1977, dated 1. 1986.

2. The plaintiff/respondent instituted the suit for declaration and permanent injunction, alleging the family of the plaintiff is a prestigious family in Kunnankottai Nadu, spread over 22 villages mainly comprising Kallar community. Further, the family of the plaintiff continued as the Pattathu Ambalam for the 22 villages and the successor is either the son or the grandson of the family. In the days of Pandya Kings, the precedessor of the plaintiff has been appointed as the Pattathu Ambalam for Kunnankottai Nadu and the Pattathu Ambalam is the representative of the Kunnankottai Nattars and he was permitted to negotiate with the Jamindar of Sivaganga. He also has a right to inaugurate the car festival in the Shiva Temple at Kallal village and receive other honours. The plaintiffs natural fathers junior paternal uncle Subbaiah Servai was the last Pattathu Ambalam. Since Subbaiah Servai had no male issue, on 6. 1973, he took the plaintiff in adoption. On the death of Subbaiah Servai, the plaintiff did his funeral rites and succeeded as the Pattathu Ambalam. While so, taking advantage that the plaintiff was a minor, the first defendant, alongwith his brother, defendants 2 to 4, gave out he has been elected as the Pattathu Ambalam and began to claim the honours to which the Pattathu Ambalam is entitled to. The plaintiff sent a petition to the Sub-Collector, Devakottai, on which the enquiry by the police had been conducted. Since cloud has been caused by the defendants as to the rights of the plaintiff in discharging his functions as Pattathu Ambalam he was compelled to file the suit.

3. The defendants resisted the suit stating, the claim of the plaintiff that his predecessors were functioning as the Pattathu Ambalam of Kunnankottai Nadu, by succession, from time immemorial is not true. On the other hand, the predecessors of the defendants are functioning as the Pattathu Amabalam. Since Subbaiah Servai died without any male issue, he took in adoption Subbaiah, who is related to him as a distant Pangali, The allegation that on 6. 1973 Subbaiah Servai adopted the plaintiff is not correct.

4. The learned District Munsif, Devakottai on the pleadings of the parties formulated the necessary issues. On a consideration of the evidence adduced by both the parties, oral and documentary, the learned District Munsif concluded that the ingredients of Section 11(iv) of the Hindu Adoptions and Maintenance Act,1956 (Act 78 of 1956) (hereinafter referred to as the Act) have not been satisfactorily established by the plaintiff and the mere fact that he did the funeral rites of Subbaiah Servai, the last Pattathu Ambalam, will not prove valid and legal adoption. In that view, he dismissed the suit, however, without costs. The plaintiff who was aggrieved by the said judgment and decree of the learned District Munsif, Devakottai preferred A.S. No. 10 of 1986 on the file of the learned Subordinate Judge formulated the necessary points for determination and, on a reappraisal of the evidence, held that the evidence on record clearly proves that the plaintiff did the funeral rites of the last Pattathu Ambalam Subbaiah Servai, which could have been done by him only if he is the adopted son. The learned Subordinate Judge did not record any finding as to whether the ingredients of Section 11(vi) of the Act have been proved by the evidence on record. Ultimately, the learned Subordinate Judge allowed the appeal, reversed the judgment and decree by the Trial Court and decreed the suit with costs, which has given rise to the present second appeal.

5. The substantial question that has been debated before me by the learned Counsel for the appellant is that there is no written do