REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9714        OF 2010   [Arising out of SLP (C) No. 28504 of 2008]

 ATLURI BRAHMANANDAM (d) THR. LRS.         ….Appellant

  Versus

 ANNE SAI BAPUJI                                            ...Respondents

JUDGMENT     

 Dr. MUKUNDAKAM SHARMA, J.   

1.  Leave granted.

2.    The present appeal filed by the appellant herein arises  

out of an order passed by the High Court of Andhra Pradesh at  

Hyderabad  in  Appeal  Suit  No.  2185  of  1989  whereby  the  

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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  

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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  

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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  

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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  

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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   

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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  

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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  

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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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