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PETITIONER: VOLETI VENKATARAMA RAO

       Vs.

RESPONDENT: KESAPRAGADA BHASKARA RAO & ORS.

DATE OF JUDGMENT: 15/04/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1969 AIR 1359            1970 SCR  (1) 301  1969 SCC  (2)  79

ACT: Hindu law-Adoption-Challenge to adoption after a long  lapse of years-Presumption as to validity.

HEADNOTE: One B, a Brahmin Karnam, executed a will in 1903 authorising his  ’widow to adopt.  After his death, the widow adopted  R in 1904.  The first respondent was R’s adopted son.  R  died in  1950, and his adoptive mother died in 1952.  During  his lifetime, R was recognised by every member of the family  as the  adopted son of B, and he was registered as  the  Karnam and  he  acted as the Karnam till his death.  In  1953,  the appellant, claiming to be the nearest heir of B filed a suit for  recovery of possession of B’s property contending  that R’s  adoption was invalid, because, the adoptive mother  had not  attained  the  age of discretion at the  .time  of  the adoption  and was therefore not competent to make the  adop- tion.  The suit was dismissed. In appeal to this Court, HELD  : Where there is a lapse of several years between  the adoption and its being questioned, the burden rests  heavily upon  him  who challenges it, and every  allowance  for  the absence   of  evidence  to  prove  it  must  be   favourably entertained. [303 D-E] In  the  present case, having regard to the  long  lapse  of time, the recognition of R as, the adopted son of B, and the fact  that those who could have given evidence in favour  of the adoption had passed away, a strong presumption in favour of   the   validity   of    adoption   should   be    drawn. The appellant made no attempt to produce the certified  copy of the register of births which would have shown, the  exact age of the mother and thus failed to rebut the  presumption. [303 C-D; F] Venkataseetarama  Chandra Row v. Kanchu Marthi  Raju  A.I.R. 1925 P.C. 201 applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 757 of 1963.

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Appeal  by special leave from the judgment and decree  dated November 29, 1960 of the Andhra Pradesh High Court in Appeal No. 261 of 1956. M.   C Chagla, R. Thiagarajan and T. Satyanarayana, for  the appellant. Suryanarayanamurthy and K. Jayaram for respondents Nos. 1, 4 to 6, 9 to 11, 13, 17, 25, 26, 29, 39, 42, 45, 47, 55 to 57, 59, 63 and 64. The Judgment of the, Court was delivered by Bachawat,  J. This dispute relates to the succession to  the immoveable  properties  of  late  Bhaskara  Rao,  a  Brahmin karnam, 302 who  died on November 29, 1903 without issue, but leaving  a widow.   The  suit was instituted on April 15, 1953  by  the appellant  claiming to be the nearest heir of  Bhaskara  Rao for  recovery of possession of the properties.  The case  of the  contesting defendants is that Bhaskara Rao  executed  a will on November 29, 1903 authorising his widow Seshamma  to adopt  a son, that pursuant to such authority  she  ’adopted Rajeswarara, in or about May 1904 that Rajeswararao died  in 1950  and that the first defendant is his adopted son.   The courts below concurrently found in favour of the  defendants on  all  the points.  They held that (1) Bhaskara  Rao  duly executed  the  will dated November 29, 1903; (2)  his  widow Seshamma  in fact adopted Rajeswararao in or about May  1904 and  the  requisite ceremonies of adoption  were  performed. These findings of fact are no longer challenged. The trial court held that ’at the time of adoption  Seshamma was about 14, years of age.  The High Court held that having regard  to the lapse of time there was a strong  presumption that  Seshamma had attained the usual age of  discretion  at the time of the adoption, that the presumption had not  been rebutted and that the adoption was valid. Mr.  M. C. Chagla argued that in May 1904 Seshamma  had  not attained the age of discretion and was not competent to make the adoption.  He relied on the following passage in Mulla’s Principles of Hindu Law, 13th ed. art. 465, page 491 :-               "A  minor widow may adopt in the same  circum-               stances  as an adult widow, provided  she  has               attained the age of discretion and is able  to               form an independent judgment in selecting  the               boy  to  be  adopted.   According  to   Bengal               writers  the age of discretion is  reached  at               the beginning of the sixteenth year; according               to   Benaras  writers,  at  the  end  of   the               sixteenth year.  The former view was taken  in               a recent Madras case." Now there is no clear evidence on the question of Seshamma’s age in May 1904.  The plaint said that she was then 10 years of  age.   One of the written statements said that  she  was about  15  years  old.   Exhibit A-2  an  extract  from  the register of deaths suggests that she was then aged about  14 years.  In Ex.  A-7 dated March 25, 1907, Ex.  B-5 dated May 2,  1907, Ex.  B-110 dated April 25, 1909, Ex.   B-7,  dated November  1, 191 1, Ex.  B-22 dated November 15, 1911,  Exs. A-11 and A-12 dated November 17, 1911,she was described as a minor.   But Ex.  B-138 dated August 9, 1910  described  her ’as  a  major.  The evidence of DW 2 suggests that  she  was about 15 years old at the time of adoption.  The evidence of DW  3  fixes  her age at about 17 years in  or  about  1903. Evidence was adduced to show that she married in 1898                             303 when  she  was 11 or 12 years old.  The  appellant  made  no attempt  to  produce the certified copy of the  register  of

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births  which would have shown her exact age.  The  adoption was  made  in May 1904.  It was challenged in 1953  after  a lapse of about 50 years.  The, long delay in filing the suit is   not  satisfactorily  explained.   A  declaratory   suit challenging  the adoption could have been filed  soon  after the adoption.  Rajeswara Rao died in 1950, Seshamma died  on October 2, 1952.  During his life time Rajeswararao was  re- cognised by every member of the family as the adopted son of Bhaskara Rao.  He was registered as kamam and acted as such, till his death.  Under Ex.  B-12 dated November 19, 1937 the plaintiff’s   mother  Kamappa  purchased  a  property   from Rajeswara Rao wherein he was described as the adopted son of Bhaskara  Rao.  Having regard to the long lapse of time  and the  recognition  of  Rajeswararao as  the  adopted  son  of Bhaskara Rao, the strongest presumption arises in favour  of the  validity  of the adoption.  The law on  this  point  is correctly  stated in Mulla’s Hindu Law, 13th ed., art.  512, page 519:-               "But when there is a lapse of 55 years between               the  adoption and its being questioned,  every               allowance for the absence of evidence to prove               such fact must be favourably entertained.   It               stands  to reason that after a very long  term               of  years,  and a variety of  transactions  of               open  life and conduct upon the  footing  that               the adoption was a valid act, the burden  must               rest  heavily  upon  him  who  challenges  its               validity,"  See also Venkataseetarama  Chandra               Row v. Kanchu Marthi Raju(1). The presumption in this case is very heavy considering  that all the parties to the adoption and all those who could have given  evidence in favour of its validity have passed  away. The appellant has not rebutted this -presumption and has not shown that Sashamma did not attain the age of discretion  in May  1904 and was not competent to make the  adoption.   The courts  below  rightly  found in favour of  the  factum  and validity of the adoption.  There is no merit in this appeal. The appeal is dismissed with costs. V.P.S.                                                Appeal dismissed,. (1) A.I.R 1925 P.C. 201, 202. 304