JUDGMENT

1. This is an appeal under Section 12(2), Oudh Courts Act. There is only one question in the appeal, namely whether to make a proper adoption it is necessary that the adoptive father or mother should make a declaration of acceptance of the child in adoption in order to make the adoption valid. The suit was brought by the reversioners of one Sitla Din, alleging that Barey Lal defendant had not been validly adopted. The appellants' learned Counsel relies upon Mahashoya Shosinath Ghose v. Krishna Soondari Dasi, (81) 6 Cal. 381 a Privy Council decision, and Govindayyar v. Dorasami, (88) 11 Mad. 5 (F.B.), a Full Bench decision of the Madras High Court, The question to which their Lordships of the Madras High Court applied their minds was whether the ceremony of "Datta Homan" is essential to a valid adoption among Brahmans in Southern India when the adoptive father and son belong to the same "gotra." The decision of the Privy Council was quoted as showing what was necessary to a valid adoption, and on the basis of it, it was held that "Datta Homan" was not essential. It is true that their Lordships say that the Privy Council decision is an authority for the proposition that any overt act is not sufficient and that corporeal delivery of the child must be, accompanied by the declaration on the one side, "I give the child in adoption," and on the other "I take the child in adoption." The learned Single Judge of this Court, with whom we agree on this point, considered that their Lordships of the Madras High Court were going beyond anything that the Privy Council had said. He further pointed out that in Mulla's Hindu law, para. 448 where the requisites of a valid adoption are given, a formal declaration is not one of those requirements. The appellants' learned Counsel admits that there is no set formula for such a declaration. Moreover, as the learned Single Judge points out, nothing is said in the Privy Council decision about a declaration of giving in adoption, and if there is no necessity for a formal declaration to that effect, there seems no reason why there should be necessity for a formal, declaration of taking in adoption.

2. In the Privy Council decision, the facts of which have been carefully analysed by the learned Single Judge of this Court, we find that that does not lay down a hard and fast rule. The headnote runs: "Although amongst Sudras, no ceremonies are necessary in addition to the giving and taking of a child in adoption; yet it must not be inferred therefrom that there can be such a giving and taking as is necessary to satisfy the law, even amongst Sudras, by mere deed, without an actual delivery of the child by the father," and it was held that "in this case on the evidence certain deeds of gift and acceptance of a child, duly executed and immediately registered, had not been intended by the parties as a complete adoption; the terms of the deeds themselves not being necessarily inconsistent with such finding." At p. 255 their Lordships of the Privy Council discussed all the circumstances and came to the conclusion that the parties did not regard the adoption as complete, but it remained, to some extent, still "in fieri." We have to see, therefore, whether from the circumstances of the present case such complete giving and acceptance of the child can reasonably be inferred. The circumstances of the present case are set down by the learned Single Judge of this Court, and we cannot do better than quote them here:

In the present case the evidence is to the effect that Mt. Chandrapali and her husband Rameshar asked Jageshar and his wife to give their son Barey Lal in adoption to them. They replied that they were willing to do so. A 'puja' was held in which Jageshar, his wife, Rameshar, and his wife Mt. Chandrapali, the adopting mother, also participated. Bameshar and his wife sat for the 'puja' and asked again Jageshar and his wife to give them Barey Lal in adoption. Jageshar and his wife then put Barey Lal in th