Atluri Brahmanandam (D) Thr.Lrs vs Anne Sai Bapuji

1 High Court has dismissed the appeal filed by the

appellant herein and affirmed the judgment and decree passed

by the trial court in favour of the respondent.

3. The appellant herein was the defendant in the suit filed

by the respondent seeking for a decree for possession and

future mesne profits with interest at the rate of 6% per annum

and for payment of Rs.4,500/- with interest at the rate of 6%

per annum till realization. One of the contentions which was

raised in the suit was that the respondent/plaintiff was the

adopted son of Late Anne Seetharamaiah and if the findings

are in the affirmative, in that event, he would be entitled to

claim for recovery of possession of the scheduled land.

4. The case of the respondent-plaintiff in the suit was that

in 1965, one Myden Saheb of Atkuru Village in Gannavaram

Taluk of Krishna District filed a small cause suit being S.C.

No. 44 of 1965 against Atluri Brahmanandam of the same

village. The suit was decreed by the Court of District Munsif,

Nuzvid for an amount of Rs. 355/-. Consequent upon the

passing of the said decree, the decree-holder Myden Saheb

filed E.P. No. 29 of 1967 during the course of which the

2 judgment-debtor's agricultural wet land admeasuring Acs.

1.78 was sold in auction in which Anne Seetharamaih

purchased the same for Rs.5,900/-. The auction purchaser is

the adopted father of Anne Sai Bapuji, who filed the present

suit in the Court of Subordinate Judge, Vijaywada which was

later transferred to the Court of Subordinate Judge,

Gudivada.

5. The respondent-plaintiff had stated in the plaint that

after Seetharamaiah purchased the property in Court auction

on 26.4.1968, Brahmanandam filed various applications in

E.P. No. 29 of 1967 and prevented delivery of possession.

However, the Court delivered the possession to Seetharamaiah

on 10.7.1974. It was, however, contended that by taking

advantage of pendency of Miscellaneous Appeal in the High

Court, Brahmanandam trespassed into suit scheduled

property in January, 1975 and obtained wrongful possession.

It was also contended that Anne Sai Bapuji, the respondent

herein, is the adopted son of Late Anne Seetharamaiah who

died intestate on 7.8.1981, as a result of which all his

3 properties devolved on respondent and, therefore, he is

entitled to a decree for recovery of possession.

6. The appellant herein who was the defendant denied that

the respondent is the adopted son of Late Seetharamaiah. He

also denied delivery of possession on 10.7.1974 and contended

that the aforesaid auction sale is liable to be set aside. It may

be mentioned at this stage that the appellant herein did not

file any separate suit seeking to setting aside the auction sale

in which the adoptive father of the respondent purchased the

said property. Without filing such a suit against the sale by

which the appellant has been divested of the title to the

property, the appellant cannot claim to be the owner of the

suit property. But the present suit was filed by the

respondent seeking for decree delivery of possession which

was also contested by the appellant and, therefore, we are

required to examine the contention of the learned counsel

appearing for the parties and to decide the lis between them.

7. The main issue, therefore, in the present appeal on

which extensive argument was made is as to whether or not

the respondent was the adopted son of Late Anne

4 Seetharamaiah. In the plaint filed, the respondent claimed

himself to be the adopted son of Late Seetharamaiah. During

the trial of the suit, the appellant also relied upon and proved

Ex. A-8. Relying heavily on the said document, it was

contended by the respondent that in terms of the said

document, the respondent should be held to be the legally and

validly adopted son of Anne Seetharamaiah.

8. In view of the pleadings of the parties and the judgment

and decree passed by the High Court upholding the judgment

and decree passed by the trial court in favour of the

respondent, two contentions were mainly urged before us by

the learned counsel appearing for the appellant. According to

him, there was no adoption of the respondent by the adoptive

father as alleged and secondly, since the respondent was more

than 15 years of age on the date of the alleged adoption, he

could not have been validly adopted without proving any

customs in favour of such adoption. In support of the

aforesaid contentions, the counsel of the appellant referred to

and relied upon the provisions of Section 10 (iv) and Section

16 of the Hindu Adoption and Maintenance Act, 1956.

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9. We have perused the records which are placed before us

including the deed of adoption which is placed on record by

the respondent and proved as Ex. A-8. The said Ex. A-8 is

dated 27th April, 1966 and incidentally, is a registered deed of

adoption. The recital in the said deed of adoption is that the

natural parents of the respondent had given the respondent

aged about 18 years and unmarried on the said date in the

presence of elders and in accordance with the provisions of the

Hindu Adoptions and Maintenance Act, 1956 to Anne

Seetharamaiah, who was issueless and, hence, the adoption.

It also recited that the aforesaid adoption is in accordance

with the customs prevailing in the "Kamma" community in

Andha Pradesh.

10. The aforesaid deed of adoption was produced in evidence

and the same was duly proved in the trial by the evidence led

by PW-1, the respondent. We have carefully scrutinized the

cross-examination of the said witness. In the entire cross-

examination, no challenge was made by the appellant herein

either to the legality of the said document or to the validity of

the same. Therefore, the said registered adoption deed went

6 unrebutted and unchallenged. We have already referred to the

recitals in the said documents which is a registered document

and according to the recitals therein, the respondent was

legally and validly adopted by the adoptive father Late Anne

Seetharamaiah and that such adoption even beyond the age of

15 years is permissible and recognized in the "Kamma"

community of Andhra Pradesh. All these factors also go

unrebutted and unchallenged.

11. Section 10 and Section 16 of the Hindu Adoptions and

Maintenance Act, 1956 of which reference was made during

the course of arguments read as follows:-

"10. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-

(i) ...

(ii) . . .

(iii) . . .

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

16. Whenever any document registered under any law for the time being in

7 force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

12. We are concerned for the purpose of this case with clause

(iv) of Section 10 which provides that a person to be adopted

should not have completed the age of 15 years. But there is

also an exception provided therein to the aforesaid required

qualification which provides that if there is a custom or usage

applicable to the parties permitting persons who have

completed the age of 15 years being taken in adoption, such a

person could also be validly adopted. On the other hand, the

effect and the implication of Section 16 of the Act is that if

there is any document purporting to record an adoption made

and is signed by the person giving as well the person taking

the child in adoption is registered under any law for the time

being in force and if it is produced in any Court, the Court

would presume that the adoption has been made in

8 compliance of the provisions of the Act unless and until it is

disproved.

13. There is no denial of the fact in the present case that the

respondent was more than 15 years of age at the time of his

adoption. But the respondent has relied upon the exception

provided in section 10 (iv) and has proved by leading cogent

and reliable evidence like Ex. A-8 that there is a custom in the

"Kamma" community of Andhra Pradesh for adoption of a boy

even above the age of 15 years. Therefore, the aforesaid

exception which is engrafted in the same part of the provision

of Section 10 of the Act was satisfied. Since the aforesaid

custom and aforesaid adoption was also recorded in a

registered deed of adoption, the Court has to presume that the

adoption has been made in compliance with the provisions of

the Act, since the respondent has utterly failed to challenge

the said evidence and also to disprove the aforesaid adoption.

14. Reference has also been made to a Division Bench

decision of the Andhra Pradesh High Court reported in 1964

Andhra Weekly Reporter p.156. In the said decision, the

Division Bench has recognized that there is a custom among

9 the members of the "Kamma" caste to adopt a boy of more

than 15 years old and that such custom is valid. The said

decision rendered by a Division Bench in 1964 has stood the

test of time and has remained binding till date.

15. In the case of Ujagar Singh v. Mst. Jeo reported in AIR

1959 SC 1041, this Court has held that the ordinary rule is

that all customs general or otherwise have to be proved, but

under Section 57 of the Evidence Act, 1872 nothing need to be

proved of which the Court can take judicial notice. It was also

held that when a custom has been repeatedly recognized by

Courts, it is blended into the law of land and proof of the same

would become unnecessary under Section 57 of Evidence Act,

1872.

16. The aforesaid decision is squarely applicable to the facts

and circumstances of the present case. The Andhra Pradesh

High Court has recognized such a custom among the

"Kamma" community of Andhra Pradesh of taking in adoption

of a person even above the age of 15 years of age and has held

the same to be legal and valid.

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17. In view of the above discussion, we find no infirmity at all

in the findings of the trial court which were affirmed by the

High Court that the adoption of the respondent by Late Anne

Seetharamaiah is legal and valid. We, therefore, find no merit

in this appeal which is dismissed but we leave the parties to

bear their own costs.

............................................J [Dr. Mukundakam Sharma ]

............................................J

[ Anil R. Dave ]

New Delhi, November 18, 2010.

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