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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