Andhra HC (Pre-Telangana)
Amara Satyanarayana vs Majeti (Amara) Srinivasa Rao on 31 October, 2007
Equivalent citations: 2008(2)ALT410
JUDGMENT P.S. Narayana, J.
1. Heard Srinivas Emani, Counsel representing the appellant and Sri M. Krishna Mohan Rao, the learned Counsel representing the respondent.
2. This Court on 1.4.1999 made the following order:
Admit in view of the substantial questions raised in Ground Nos. 1, 2, 4, 7, 8 and 14.
The said Grounds are as hereunder:
The judgment of the Lower Appellate Court is contrary to law, in reversing the well considered judgment of the Trial Court, which held that the adoption of the respondent/defendant is not valid in law, as the adoption is violative of Section 10(iii) and (iv) of the Hindu Adoption and Maintenance Act of 1956, read with Section 5(2) of the said Act.
The Lower Appellate Court erred in law and also on fact in not at all considering the evidence of the witnesses examined on behalf of the plaintiff as well as the defendant in proper perspective as required under law, which clearly established that the adoption said to have taken place on 22.8.1984, is not according to the custom prevailing in Vysya Community to take adoption of a boy after he completes 15 years of age as contemplated under Section 10(4) of the Hindu Adoption and Maintenance Act of 1956.
The Lower Appellate Court failed to note that Section 10(iii) and (iv) of the Hindu Adoption and Maintenance Act, 1956, does not contemplate to take a boy in adoption before Upanayanam in Vysya Caste though he completed 15 years of age. What all that has been contemplated is that he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; he or she has not been completed the age of 15 years, unless there is a custom or usage applicable to the parties, which permits persons, who have completed the age of 15 years being taken in adoption, but not the Upanayanam in Dhijas and as such it should have been held that the adoption of the respondent/defendant is in violation to the aforesaid provision of law and it is hit by Section 5(2) of the said Act and as such the respondent/defendant cannot acquire any rights in the adoptive family with respect to the properties possessed by the adoptive parents.
The Lower Appellate Court should have noted mat the mode of proof of custom and its relevance is laid under Section 13 of the Indian Evidence Act, which reads:
Where the question is as to the existence of any right or custom, following facts respondents relevant:
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;
(b) particular instances in which the right of custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
In the instant case, the defendant/respondent or his witnesses have not established by their evidence that there is a custom in the Vysya Community of adopting a boy who is more than 15 years of age until his thread marriage is over, and thread marriage is not marriage as contemplated under Hindu Marriage Act.
The Lower Appellate Court should have followed the principles laid down in Garimella Annapurnayya v. Kota Appalanarasimhamurthy and Ors. , relating to proof of custom wherein it was held that it is fundamental that the legal custom relates to the length of time during which it has been established and it must be immemorial to mean that the memory of man runneth not to the contrary. However, in India the trend of immemorial custom or its antiquity appears to date back at least to 20 years and more and in the instant case there is no such proof available on record even from the evidence of D.Ws.2 to 6.
The finding of the Lower Appellate Court that the claim of the appellant/plaintiff is barred by limitation with respect to the declaratory relief is erroneous in law as the same is contrary to the principles laid down in Ravula Kamalamma v. Ravula Venkata Narasimha Reddy and Anr. 1969(1) An.WR 308, wherein it is held that Article 57 of the Limitation Act, 1963 corresponding to old Article 118 has no application to the case on hand as the plaintiff/appellant is claiming ownership rights questioning the adoption deed Ex. A.1 and the Will under Ex. A.2 since the appellant/plaintiff is in possession and enjoyment of the plaint f schedule property even as per Ex. A.1 and as such it should have been held that the suit filed by him is not barred by limitation.
3. Sri Srinivas Emani, the learned Counsel representing the appellant would submit that the Court of first instance made an elaborate judgment recording appropriate findings and when the adoption is not valid, the appellant/plaintiff is bound to succeed. The learned Counsel also would contend that the evidence which had been let in by the respondent/defendant would not establish the alleged custom in Vysya Community and the appellate Court totally erred in reversing the well considered judgment of the Court of first instance. The learned Counsel had drawn the attention of this Court to the oral evidence available on record and would maintain that the witnesses examined on behalf of the respondent/defendant i.e., D.W. 2 to D.W. 6, simply deposed that even in cases where the adoptions were made though age barred, they had been in fact regularized and accepted by the community. The Counsel would maintain that this would not satisfy the requirement of establishing the ingredients of a valid custom so as to save the validity of adoption from the rigorous condition of age bar. The learned Counsel also pointed out to the relevant findings recorded by the appellate Court and would maintain that the standard of proof required in establishing the custom even in the light of Section 13 of the Indian Evidence Act had not been discharged. Hence, viewed from any angle, the appellant is bound to succeed.
Per contra, the Counsel representing the respondent would maintain that the appellate Court recorded convincing reasons and the general custom in Vysya Community of taking a boy aged more than 15 years being a well recognized custom, the appellate Court is well justified in the light of the evidence available on record in reversing the Decree and Judgment of the Court of first instance.
4. Heard the Counsel on record and perused the findings of the Court of first instance and also the findings recorded by the appellate Court.
The substantial questions of law on the strength of which the second appeal had been admitted already had been specified above. The unsuccessful plaintiff being aggrieved of the reversing judgment and decree made in A.S. No. 42/98, on the file of I Additional District Judge, Guntur had preferred the present second appeal. It is needless to say that the appellant as plaintiff instituted the suit O.S. No. 95/90 on the file of Senior Civil Judge, Bapatla. The Court of first instance on appreciation of the evidence of P.W. 1 to P.W. 3, D.W. 1 to D.W. 6, Exs. A.1 to A.5, Exs. B.1 to B.38 and Exs. X.1 and X.2 recorded findings in detail and came to the conclusion that the adoption being invalid, the plaintiff is bound to succeed and accordingly decreed the suit. Aggrieved by the same, the matter was carried by way of appeal A.S. No. 42/88 on the file of I Additional District Judge, Guntur and the appellate Court having observed that the defendant was only aged about 17 years on the date of adoption and after referring to Section 10 of Hindu Adoptions and Maintenance Act 1956 and also certain decisions relating to the customary mode of adoption, came to the conclusion that in the light of the evidence available on record, custom in Vysya Community in the area had been established and hence the decree and judgment made by the trial Court cannot be sustained and accordingly allowed the appeal dismissing the suit O.S. No. 95/90 on the file of Senior Civil Judge, Bobbili. Aggrieved by the same, the present second appeal had been preferred.
5. For the purpose of convenience, the parties hereinafter would be referred to as "plaintiff and "defendant' as shown in O.S. No. 95/90 on the file of Senior Civil Judge, Bobbili. The suit was instituted by the plaintiff for declaration that the plaintiff is the absolute owner of the plaint schedule property and also for perpetual injunction restraining the defendant from interfering with his absolute rights in relation to the said property. It was pleaded in the plaint as hereunder:
The plaintiff and his wife Sarojini Devi had no issues. The defendant is none other than the sister's son of the said Sarojini Devi. The plaintiff and his wife Sarojini Devi thought of taking the defendant in adoption. The adoption is evidenced by a document which is registered on 31.8.1984 at Bapatla. The plaintiff and his wife were made to believe the age of the defendant is below 15 years on 31.8.1984. There are no utterances as to the giving and taking in relation to the alleged adoption which is a mandatory requirement for a valid adoption. There is no custom in Vysya Community to adopt a boy aged more than 15 years. Before executing and registering the adoption deed on 31.8.1984, the defendant and his persons insisted that the said Sarojini Devi should execute a Will in favour of the defendant in the plaint schedule properties as a prelude to the adoption. The said Sarojini Devi executed a Will on 31.8.1984 bequeathing life interest to the plaintiff in the suit property and vested reminder to the defendant. The remaining Vi share in item No. 1 is bequeathed to one Vutukuri Anantha Lakshmi. The said Sarojini Devi died on 14. 1984. The defendant had not performed the obsequies of the said Sarojini Devi. The adoption of the defendant is void ab initio and consequently the defendant is not entitled to any right in the suit properties. The Will dated 31.8.1984 so far as the defendant is concerned is non est. The plaintiff being a legal heir to his deceased wife, became the absolute owner of the suit properties. The plaintiff had suffered from paralysis and in need of assistance. The plaintiff therefore married again. The defendant is staying with his parents at Kakumanu and is not looking after the plaintiff. The defendant gave reply with false allegations. The income from the suit property is insufficient to meet the medical expenses and other expenses of the plaintiff. There is legal necessity to alienate the suit property. The defendant and his parents are creating hurdles in the process. As the adoption is null and void under law, the Will became infructuous so far as the defendant is concerned in the eye of law. The defendant has no right and interest in the suit property and hence the suit.
6. The defendants resisted the suit with the following averments: It was pleaded that the plaintiff married the maternal aunt of the defendant viz., Sarojini Devi after the death of his first wife i.e., another maternal aunt of the defendant. The plaintiff did not get any children through any one of his wives. The said Sarojini Devi suffered from cancer. The plaintiff and his wife Sarojini Devi requested the parents of the defendant to give the defendant in adoption. The defendant was adopted on 22.8.1984 at 5.30 a.m., according to the Hindu Sastras. On the same day, the adoption is reduced into writing which was registered on 1.9.1984. In Guntur District there is a custom in Vysya Community of adopting a boy irrespective of his age prior to Upanayanam. With the active assistance of the plaintiff the said Sarojini Devi executed a Will on 31.8.1984 in a sound and disposing state of mind bequeathing a portion of the house to her fostered daughter and other portion to the defendant and an extent of Ac. 1-77 cents to the defendant with absolute rights creating life interest in the plaintiff. The Will dated 31.8.1984 operates independently and de hors the adoption. After the death of his wife Sarojini Devi in 1984, the plaintiff married against the detriment of the defendant and gave away the jewellery left by Sarojini Devi to his fourth wife. The plaintiff is disputing the adoption of the defendant at the instance of his fourth wife and in that process, the plaintiff issued a notice on 7.2.1989 with false allegations and the defendant gave a suitable reply. Therefore the suit be dismissed with costs.
7. On the strength of these pleadings, the following Issues were settled by the Court of first instance:
1. Whether the plaintiff is entitled for declaration as prayed for?
2. Whether the plaintiff is entitled for consequential injunction as prayed for?
3. To what relief?
As already referred to supra, the Court of first instance, on appreciation of the evidence, held the adoption to be invalid taking the age factor into consideration which is mandatory under Section 10 of the Hindu Adoptions and Maintenance Act 1956, hereinafter in short referred to as "Act" for the purpose of convenience, and decreed the suit. Incidentally, the Will executed by the adopted mother and the independent operation thereof irrespective of adoption also had been considered. The appellate Court at Para 5, framed the following Point for consideration:
Whether the plaintiff is entitled to declaration and perpetual injunction as prayed for?
On a careful appreciation of the evidence available on record, it is true that to prove some instances and to establish several facts and circumstances of the like nature, the evidence of D.W. 2, D.W. 3, D.W. 4, D.W. 5 and D.W. 6 had been let in apart from the evidence of D.W. 1. As against this evidence, the evidence of P.W. 1 supported by P.W. 2 and P.W. 3 is available on record. The fact that adoption in question does not satisfy the age requirement is not in controversy between the parties. What had been forthcoming is that inasmuch as it is a customary mode of adoption, the same is saved. Section 10 of the Act deals with Persons who may be adopted and Section 10(iv) of the Act specifies:
No person is 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.
Section 5 of the Act falling under Chapter II, dealing with Adoptions to be regulated by this Chapter specifies:
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
It is needless to say that in the present case, since the age of the adopted boy at the relevant point of time being about 17 years, which is not in serious controversy between the parties, the same to be held to be invalid in the light of Section 10(iv) of the Act unless the same is saved by the custom or usage applicable to the parties which may permit persons who have completed the age of 15 years being taken in adoption.
8. Reliance was placed on a decision of the revision Bench of this Court in Alapaty Ramulu v. Majety Chalapathi Rao and Anr. Appeal No. 364/1965 dated 21.2.1980, wherein it was held that the trial Court held on the basis of relevant evidence that there was a custom and usage in the Vysya Community of the area (case comes from Tenali sub-Court) to adopt boys even beyond the age of fifteen years and no material was brought to the notice of the High Court to depart from that finding. Reliance also was placed on the decision of the Apex Court in Kondiba Rama Papal alias Shirke (dead) by his heirs and LRs. and Anr. v. Narayan Kondiba Papal , wherein it was held that custom in the concerned area permitting adoption of a child at any age is judicially recognized and the proof of custom is not necessary in the subsequent cases and once the factum of adoption is proved, adoption cannot be challenged on the ground that the child was above 15 years-at the time of adoption.
9. In the present case, it is not the case of the respondent/defendant that the custom had been judicially recognized. No doubt, the decision of the Division Bench referred Alapaty Ramulu v. Majety Chalapathi Rao and Anr. (supra), had been relied upon, but on a careful analysis it appears, in the light of the acceptable evidence which had been placed before the trial Court and the findings recorded in relation thereto, in Appeal this Court was not inclined to disturb such findings, in the said decision. It is needless to say that to establish custom and usage, the ingredients are to be satisfied. It is no doubt true that some evidence had been placed and a serious attempt had been made by the respondent/defendant to establish the custom. Further, strong reliance was placed on a decision of this Court in Garimella Annapumayya v. Kota Appalanarasimhamurthy and Ors. 1994(3) A.L.T. 491, in relation to composite family, illatom affiliation and the custom while praying for the relief of partition and the ingredients to be established in relation thereto. In the light of the facts and circumstances, though certain incidental questions also had been canvassed before this Court, the principal question before this Court being whether the custom pleaded by the respondent/defendant would save the adoption, in the facts and circumstances and in the light of the nature of evidence which had been adduced, this Court is of the considered opinion that further opportunity to be given to both the parties to let in further evidence on the plea of custom pleaded by the respondent/defendant in Vysya Community of the locality. It is needless to say that this matter being an old one, the appellate Court to give top priority to this matter, afford opportunity to both the parties to let in further evidence on the aspect referred to supra and decide the matter afresh in accordance with law. Accordingly, the decree and judgment of the appellate Court are hereby set aside and the matter is remanded to the limited purpose of permitting the parties to let in evidence on the principal question specified above.
The second appeal is accordingly allowed to the extent indicated above. No order as to costs.