Andhra HC (Pre-Telangana)
Penumetcha Peddiraju Alias Venkata ... vs Penumetcha Viswanadha Raju And Ors. on 8 November, 1989
Equivalent citations: II(1990)DMC510
JUDGMENT Radha Krishna Rao, J.
1. The plaintiff who is the brother of late Subba Raju filed a suit for partition of the plaint schedule properties and for allotment of l/5th share to him and for delivery of possession after ejecting the defendants and for mesne profits. Excepting the defendants 6 and 7 no other defendant contested the suit and on the other hand they supported the version of the plaintiff. D-7 is the natural son of D-6 and adopted son of late Subba Raju. The plaintiff relied upon Ex. A-1, a will said to be executed by late Subba Raju and D-6 & D-7 relied upon Ex. B-1, a unregistered will and also Ex. B-61, another will said to have been executed by Venkayamma, wife of late Subba Raju. The trial Court as well as the appellate Court found that late Subba Raju was fond of D-7 and he brought him up and he admitted D-7 in the Deaf and Dumb School at Kakinada and accepted the documentary evidence, Exs. B-7 to B-47 to show that late Subba Raju was affectionate towards D-7. With regard to the execution of Ex. A-1 and Ex. B-1, the learned Subordinate Judge found that Ex. A-1 is not a genuine document and it was prepared with the signatures available on the blank papers by P.W. 1 at the instance of the attestors and P.W. 4. With regard to Ex. B-1, it was found that the evidence of D.Ws. 8 and 11 is not consistent regarding the plea of attestation etc., and came to the conclusion that though the genuineness is not denied, Ex. B-1 was not proved in accordance with law. The other document Ex. B-61, said to have been executed by Venkayamma, wife of Late Subba Raju is not accepted as it has not been filed at the relevant point of time. With regard to the adoption, both the Courts below came to the conclusion that the boy is aged about 21 years at the time of adoption and so the adoption of a boy aged above 15 years is bad and therefore, the registration of the adoption deed will not cure the defect, and the adoption also is not correct as the parties have not pleaded either the custom or usage raised by them. Against this concurrent finding of fact by the two lower Courts, this second appeal has been tiled by D-6 and D-7.
2. It is an admitted case that late Subba Raju died on 2-12-1972 leaving behind him his wife and D-7. It is also an admitted case that Venkayamma, wife of late, Subba Raju died. Late Subba Raju has got brothers and separated from his brothers and himself and his wife are living separately and there was no cordial relationship between Subba Raju and his brothers. Thereafter, Subba Raju developed attachment towards the wife of D-6 and mother of D-7 and the circumstance of executing a registered adoption deed in favour of D-7 indicates about the" preference that has been exhibited by late Subba Raju and his wife towards D-6 and D-7 and it appears to be correct. But while considering the documentary evidence, we have to consider whether a case has been made out by them or not. The plaintiff sets up the will Ex. A-1 and it is found from the infirmities that have been pointed out in the evidence of the attestors and the scribe that it is not a genuine document. On a reading of the evidence on record it is clear that it is highly improbable for late Subba Rao to execute the document like Ex. A-1 and keep the same in the custody of P.W 4. The insolvency proceedings and the promissory note also have to be taken into consideration in this connection. Ex. A-1 is not a genuine document and the reasons that have been given by the two Courts below that it was brought in to existence with the aid of blank papers with the signatures available is correct.
3. So far as Ex. B-1 is concerned, the learned counsel for the appellant herein argued that merely because the document is admitted as having been executed by late Subba Raju, it cannot be said that the document has been accepted. By mere admission of a will, it cannot be said that it has been proved. But in this case, in Ex. A-1, a mention has been made about Ex. B-1. D.W. 8 and P.W. 2 are the attestors of Ex. B-1 but there is doubt about the place and time of its execution. Both the Courts below have scrutinised the evidence that has been adduced by the parties and both Courts have come to the conclusion that Ex. B-1 was not proved.
4.The first contention raised by the learned counsel for the appellant is that no issue has been framed with regard to Ex. B-1. There need not be a separate issue particularly when the parties have adduced evidence knowing fully well that the document has to be considered by the Court. The defendants are also aware that they have to prove Ex. B-1. When the plaintiff and the defendants went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case or that there was that mistrial which vitiates proceedings. The suit could not be dismissed on the narrow ground and also there is no need for a remit, as the evidence that has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. The Supreme Court in Nedunuri Kameswaramma v. Sampati Subba Rao, also laid down the same principle while considering the question under Order. 14 Rule 1 C.P.C. With regard to Ex. B-1, the evidence that has been let in has been considered by both the Courts below. So the contention that the admission made by the other side that there was a document will not come in the way of the Court to assess or test the truthfulness or the nature of the document. When on evidence the document has been found to be not correct, they cannot gain any strength on the ground that the execution of the document has been admitted by the other side.
5. In P. Suryanarayana v. Achamma, 1988 (2) APLJ 95 this Court held that when the execution of the will is admitted and when the attestors are dead, evidence of a person who is acquainted with the hand writing of an attestor can be sufficient proof, and there is no necessity of calling for the attestors in compliance with the provisions of Section 68 of the Evidence Act. It is true that the proviso to Section 68 has no application to the case of a will and the application of examining one witness in proof of the execution when the document is a will is a mandatory requirement of the section. It is also seen that the proviso speaks of specific denial in respect of other documents. However, it is seen if a party admits execution of the will under Section 58 of the Evidence Act, no proof is necessary. What is the effect of not examining the attestors in compliance with the provisions of Section 68 has been considered in that judgment. But when the parties have adduced evidence in support of their contention in proof of the will and if that evidence has been found unacceptable, they cannot gain any strength from any of the rulings that because of the admission of the will they could not prove or produce any document to that effect.
6. Ex. B-61 is another will that has been filed in the suit. The conduct of the parties in not producing the same earlier and filing the same after long lapse of time after close of the trial and the reasoning given by the two Courts about the execution of the document by Venkayamma also shows that they have failed in their attempt. But notices have been exchanged in the year 1973 and no mention has been made about the existence of this document. Obviously each party is trying to get some evidence in support of their case and it appears that late Subba Raju or his wife Venkayamma are in favour of D-7 who was brought up by them, but they, failed to prove either Ex. B-1 or Ex. B-61.
7. The last contention that has been raised by the learned counsel for the appellant is that when there is a registered adoption deed the lower Courts ought to have accepted the same. In support of their case they relied upon a judgment of this Court in The State of A.P. v. Manthena Pullam Raju, 1980 (1) APLJ 856 wherein this Court held as valid the adoption of boys who have completed 15 years in Kshatriya community. In the adoption deed they have mentioned that the boy is aged 15 years. But in the evidence it has come to light that he is 22 years of age. It is not the case of the defendants that the boy is aged 22 years and that there is a custom in Kshatriya community. Neither the custom was pleaded nor was it proved by the defendants. On the other hand, they relied upon the fact that the boy is aged only 15 years. If he is really 15 years at that time, we can understand that what has been stated by them is correct. When he is 22 years of age and when the defendants have failed to plead or prove about the custom it is not possible to accept their case. No evidence has been let in on that context. The decision cited above relates to a case arising under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. It is to be noted that in the case arising under Land Ceiling Act, the contesting party is the Government. When the declarants set up the plea of adoption, naturally the persons that are examined on their behalf are interested persons. It is difficult for the Government to procure evidence in that connection. If that adoption is contested and there are rival parties who contend that there is no valid adoption or if they plead that there is custom, there is every possibility for the parties to adduce some evidence with regard to the custom or usage. The decision rendered in a Ceiling Case that a major can be adopted if there is custom will not be taken into consideration in a contested civil case. Even a reading of that judgment also it is clear that there was no discussion about the instances that have been mentioned in this case and only a mention has been made that there is lot of oral and documentary evidence showing instances of adoption. If a major is adopted and the same is accepted in Land Reforms cases, the parties will gain one standard holding. In those eases, the declarants are interested parties. In this connection it is relevant to notice Section 10(iv) of the Hindu Adoptions and Maintenance Act, which reads as follows :
"10. No person shall be capable of being taken in adoption, unless the following conditions are fulfilled, namely :--
(i) xx xx (ii) xx xx (iii) xx xx
(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."
This provision generally bars the adoption of a boy or girl who has completed 15 years. The existence of custom or usage applicable to the parties permits persons who have completed the age of 15 years being taken in adoption. Therefore, where there is a custom or usage applicable to the parties permitting adoption of boys or girls who have completed the age of 15 years, the general rule in Section 10 (iv) prohibiting boys and girls above 15 years from being taken in adoption will not be applicable. Normally a boy or girl who has not completed 15 years is only permitted to be taken in adoption.
8. In Hanumanthu Rao v. Hanumayya, 1964 (1) An. W.R. 156, a Division Bench of the Court has held that adoption of a boy over 15 years belonging to kamma community in Andhra is valid in view of the existence of caste system by which boys aged more than 15 years can be adopted which has been proved sufficiently by evidence on record. A similar view has been expressed by the Bombay High. Court in Housabai v. Jijabai, , wherein such custom has been proved to be in existence in the community of Goja in the State of Maharashtra. Therein it was held that the adoption of a boy aged above 15 years is protected by Section 10(iv) of the Act as there was sufficient proof of such a custom in that community.
9. In this case no custom has been pleaded nor proved on the basis of which the defendants can gain any strength. About giving and taking the boy i.e., D-7 there is no sufficient evidence. Even the photograph that has been exhibited also does not show that the mother is a consenting party. Her presence is not found in the photograph, nor was she examined. At a later stage she has not come forward that she has also consented. There is evidence about her mental condition but it is at variance. Since the consent of the mother who is alive also has not been obtained, the adoption must fail on that count. When the adoption itself is not valid as per the conditions stipulated in Sections 6 or 10 of the Hindu Adoptions and Maintenance Act, the question of giving any weight to the registered document will arise. If the adoption as such is invalid on the basis of the evidence, the document that has been registered with regard to that adoption cannot be taken into consideration to find out that there is a valid adoption. "Whether the adoption is valid or not is essentially a question of fact and where both the Courts below have answered it on a careful scrutiny of the entire material on record it cannot in no way be interferred with in a second appeal by the High Court. (Vide : Nagubai Ammal v. B. Shama Rao ).
10. If the Courts have recognised the custom in a particular matter it is not necessary to prove it. The Court can take judicial notice of such custom. It is true that a person 15 years of age can be adopted, but there must be custom in that particular community or caste. But in this case the custom is neither pleaded nor proved that in Kshatriya community a boy aged above 15 years can be adopted. The decision relied upon by the learned counsel for the appellant in Manthena Pullamraju's case (cited supra) stating that there is custom in Kshatriya community cannot give any strength particularly in the absence of any evidence in this case. A distinction can be made with regard to the above decision. That case arises out of land ceiling proceedings. But in this case the custom is neither pleaded nor proved.
11. The second appeal is accordingly dismissed. No costs.