JUDGMENT

Hamilton, J - This is an appeal by plaintiffs against whom there are concurrent findings of the Courts below. The plaintiffs sued as reversioners of one Sitla Din alleging that Barey Lal, defendant, had not been validly adopted. The Courts below found that he had been validly adopted and the appeal is based on a decision of their Lordships of the Privy Council reported in Mahashoya Shosinath Ghose v. Krishna Soondari Dasi (1881) 6 Cal 381. The learned Counsel says that their Lordships of the Privy Council in that decision required a declaration from the adoptive mother that she accepted the child in adoption to make the adoption valid and admittedly in this case there was no such declaration by the adoptive mother. It is necessary consequently to examine carefully this decision.

2. The facts in that case were that there had been correspondence about a possible adoption and the boy was brought to the adopting mother on 7th June 1864. Deeds were executed on 11th June 1864, which were alleged to be deeds of adoption, but on 12th June 1864, the boy went back with his natural father and, together with his brothers, went back in September 1864, to the adoptive mother while Sri Narain, the natural father, was on a pilgrimage. In November, the brothers went home but the boy remained in the house of the adoptive mother. The father wanted the boy back and in December 1864 he was sent back, as expressly stated in an accompanying letter, agreeably to his father's order. From that day the boy did not go back to the adoptive mother and the father wrote a letter evidently pointing to the adoption of another child by the defendant. Their Lordships found that the facts were strongly confirmatory of the notion that all parties then considered that at that time the adoption was not complete, but remained, to some extent, still in fieri. That being so, it became unnecessary for their Lordships positively to decide the first question, namely whether there can be, according to Hindu law and usage, an adoption simply by deed, and without that corporeal delivery and acceptance of the child which is almost universally treated as the essential part of an adoption in the dattaka form. They made further observations about the possibility or otherwise of an adoption merely by deed and concluded with the following sentence:

It would seem therefore that according to Hindu usage, which the Courts should accept as governing the law, the giving and taking in adoption ought to take place by the father handing over the child to the adoptive mother, and the adoptive mother declaring that she accepts the child in adoption.

3. The learned Counsel for the appellants therefore urges that their Lordships of the Privy Council made a declaration to the adoptive mother that she accepts the child in adoption sine qua non for a valid adoption. It will be noted that the real point for decision by their Lordships was whether an adoption could be made merely by the execution of a deed without some form of a ceremony, and also that they did not say that Hindu texts require such a declaration but only Hindu usage. The learned Counsel is supported in his view by a Full Bench decision of the Madras High Court reported in Govindayyar v. Dorasami (1888) 11 Mad 5 (FB). The point for decision there was whether the ceremony of datta homam was or was not essential to a valid adoption among Brahmans in Southern India, when the adoptive father and son belonged to the same gotra. In the course of their judgment they stated that giving and taking, evidenced by an overt act, were the only elements of a legal adoption among sudras, but it must be observed that any overt act is not sufficient. They then quote that part of the decision of their Lordships of the Privy Council to which I have referred above including that last sentence and they say that that decision is an, authority for the proposition that any overt act is, not sufficient, but that there must be corporeal delivery of