Voleti Venkatarama Rao Vs. Kesapragada
Bhaskara Rao & Ors  INSC 113 (15 April 1969)
15/04/1969 BACHAWAT, R.S.
CITATION: 1969 AIR 1359 1970 SCR (1) 301 1969
SCC (2) 79
Hindu law-Adoption-Challenge to adoption
after a long lapse of years-Presumption as to validity.
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 adoption. 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.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 757 of 1963.
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
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
circumstances 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 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 recognised 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.