Andhra Pradesh High Court - Amravati
P.Abbulu vs M.Rama Mohana Veera Venkata ... on 7 May, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
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HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Appeal Suit No.1291 of 2002
Judgment:
This appeal is directed against the judgment and decree
dated 22-4-2002 passed in O.S.No.41 of 1998 on the file of
the I Additional District Judge, Rajahmundry, East Godavari
District, whereby the suit filed by the sole plaintiff for
declaration of his title to the plaint A, B, C and D schedule
properties and for recovery of possession of A, B and C
schedule properties and for return of moveables shown in
plaint D schedule or the value thereof was dismissed.
2. The facts of the case as pleaded by the plaintiff may
briefly be stated as follows:
(a) One Mutyala Satyavathi is the absolute owner of
plaint A and D schedule properties which are her self-
acquisition property. Her husband Gani Raju was the owner
of paint B and C schedule properties which are his self-
acquired property. The said property is in the effective
control and possession of Satyavathi and she used to manage
the same. They have no issues. Therefore, Satyavathi and
Gani Raju have adopted the defendant as their adopted son
on 19-6-1991. The said adoption is not legally valid and
enforceable as the defendant was aged about 16 years on the
date of the said adoption. The defendant and his natural
parents suppressed the said fact that he is aged about
16 years and fraudulently gave him in adoption to Satyavathi
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and Gani Raju. Subsequently, the said fact came to the
notice of Satyavathi. So, no rights are created in favour of the
defendant as the adopted son of Satyavathi and Gani Raju.
(b) While so, Gani Raju died intestate on 11-7-1993
leaving behind his wife Satyavathi as his sole surviving legal
heir. So, his property devolved on his wife Satyavathi.
Therefore, Satyavathi became absolute owner of plaint A to D
schedule properties and she has been in possession and
enjoyment of the same, managing the said property till
January, 1998. The defendant went back to his natural
parents who are at Peyyeru Village in Krishna District about
two years prior to January, 1998 renouncing his character as
adopted son of Satyavathi and Gani Raju as Satyavathi did
not agree to give any of the plaint A to D schedule properties
to him.
(c) Satyavathi became old and as it is difficult for her to
manage her properties in the said old age without any male
assistance to look after herself and her properties, she shifted
her residence from Subhadrapuram to the house of the
plaintiff, who is the son of her brother at Teki Village in
January, 1998. Since then, the plaintiff is looking after her
welfare. The plaintiff and his father are managing the
property of Satyavathi. The defendant made an attempt to
take forcible possession of the plaint schedule properties but
was in vain.
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(d) While so, on 08-5-1998 Satyavathi executed a Will in
favour of the plaintiff in a sound disposing state of mind
bequeathing plaint A to D schedule properties in his favour.
On 09-5-1998 she was suddenly subjected to ill health on
account of paralysis at Teki Village. She was immediately
admitted in the hospital. The defendant and his father
harassed her in the hospital while she was taking treatment
by making illegal demand to give her property to them.
Satyavathi lodged a report with the Police on 18-5-1998
against them and also sought protection from them.
The defendant and his father forcibly abducted her from the
hospital on 25-5-1998 at 06.00 p.m., and she died on
26-5-1998.
(e) After her death, the plaintiff became absolute owner
of plaint A to D schedule properties by virtue of the Will dated
08-5-1998 executed by Satyavathi in his favour and he has
been in possession and enjoyment of the plaint A and B
schedule properties from the date of the demise of the said
Satyavathi. The defendant high-handedly took possession of
C schedule property on 23-5-1998 by breaking open the lock
of the house and committed theft of 80 kata bags of paddy
stored in the granary shown in D schedule properties along
with other gold etc. The defendant also trespassed into plaint
A and B schedule properties on 28-5-1998 and dispossessed
the plaintiff forcibly from the said property. The defendant
has no right whatsoever on the plaint schedule properties.
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The plaint schedule property is not an ancestral joint family
property. So, the defendant has no right over the said
property. The plaintiff alone is the owner of the said property
by virtue of the Will dated 08-5-1998. Therefore, he has
prayed to declare his title to the plaint schedule property and
also sought recovery of possession of the plaint schedule
properties after ejecting the defendant therefrom.
(f) The sole defendant resisted the said suit. He has
filed his written statement opposing the claim of the plaintiff.
It is his case that late Satyavathi and Gani Raju have taken
him adoption in the year 1991 and the said adoption is legally
valid. There is no contravention of requirements as to his age
in any manner as enjoined under law on the date of adoption.
Even otherwise, since there is a custom among "Kamma"
community in the locality of taking adoption of persons
beyond 15 years of age, his adoption even as per their custom
is valid. The said custom is in vogue for a long time in the
community. In fact, the defendant has not completed the age
of 15 years as on the date of adoption and he was only aged
about 14 years at that time as he was born on 04-4-1977.
Therefore, it was a valid adoption. Late Satyavathi never
disputed the validity of the adoption at any time during her
life time. She and her husband treated him as their adopted
son from the date of the adoption. The defendant also lived
with them and after the death of Gani Raju, he lived with
Satyavathi during her life time. Satyavathi, Gani Raju and
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the defendant treated plaint B and C schedule properties as
their joint family properties and they all together enjoyed the
same and managed the same. His adoptive father had
ancestral nucleus as a base for acquisition of plaint B and C
schedule properties and as such they constitute joint family
property of Gani Raju. He used to manage the properties
during the life time of Satyavathi and after her death on
26-5-1998, he continued to be in possession of the plaint
schedule property as the sole legal heir of Satyavathi as he
inherited the same as her adopted son.
(g) Satyavathi performed his marriage during her life
time in the month of July, 1995. When his wife became
pregnant and went to her parents' house in Karnataka State
and gave birth to a child on 16-4-1998, at the instance of
Satyavathi his mother, he went to his in-laws' house in
Karnataka in the first week of May, 1998 to see his wife and
newly born child and to attend the naming ceremony of the
child. When he returned home on 18-5-1998, to his surprise,
he found the door of the house locked. On enquiry from the
neighbours, he came to know that the plaintiff has shifted his
adoptive mother Satyavathi to the hospital and locked the
door of the house on 09-5-1998. Immediately, he went to the
hospital at Mandapet and found his mother Satyavathi in
a bad health condition and she was even unable to identify
him. When the defendant asked the plaintiff, who was
present there in the hospital for the keys of his house he gave
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evasive replies. So, the defendant got suspicion over him at
that time and he sought intervention of the elders. Yet, he
could not secure the keys from him. So, he has no other go
except to break open the lock of the house on 23-5-1998 in
the presence of the elders. At that time, he found moveable
properties which are shown in the plaint schedule including
his documents like adoption deed, tax receipts, patta pass
books, title deed etc., missing which inferred that the plaintiff
has taken away all the said documents with a male fide
intention to deprive him of his property to which he is legally
entitled. He lodged a report with the Police in this regard.
(h) He denied that late Satyavathi executed Will dated
08-5-1998 in favour of the plaintiff in respect of the plaint
schedule properties. He pleaded that she never executed any
such Will dated 08-5-1998 in favour of the plaintiff. It is
stated that taking undue advantage of the ill health of
Satyavathi and her poor mental and physical condition in the
hospital that the plaintiff has taken her thumb marks on
blank paper and got the Will dated 08-5-1998 fabricated with
the help and aid of professional scribe and attestors who
oblige him. Therefore, the said Will is a rank forgery and it is
not true and valid and binding on him. No rights accrued to
the plaintiff under the said Will and it is pressed into service
by the plaintiff only to grab the plaint schedule property.
In fact, late Satyavathi went into coma and the doctors opined
that her life is coming to an end and on the advice of the
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doctors, she was discharged on 25-5-1998 at about 05.00
p.m. and the defendant took her to Subhadrapuram and she
survived till 06.00 a.m. on the next day. It is pleaded that the
plaintiff was never in possession of A, B and C schedule
properties at any time before and subsequent to the death of
Satyavathi. Therefore, he prayed for dismissal of the suit.
(i) Subsequently, the defendant filed a counter claim
under Order VIII, Rule 6 of CPC for recovery of a sum of
Rs.95,000/- towards damages against the plaintiff with
interest at 12% per annum thereon.
(j) The plaintiff filed a rejoinder to counter claim filed by
the defendant stating that he is not liable to pay any such
damages.
(k) On the basis of the pleadings of both the parties, the
following issues were settled for trial in the trial Court:
1. Whether late Mutyala Satyavathi, wife of Giri Raju, is the
absolute owner of the plaint A, B and C schedule properties ?
2. Whether the Will dated 08-5-1998 alleged to have executed by
late Mutyala Satyavathi in favour of the plaintiff bequeathing the plaint
ABCD schedule properties is true, valid and binding on the defendant ?
3. Whether the adoption of the defendant by Mutyala Satyavathi
and her husband Gani Raju under adoption deed dated 19-6-1991 is not
legally valid and unenforceable under law ?
4. Whether the plaint B and C schedule properties are the joint
family properties of late Mutyala Gani Raju, the husband of Satyavathi
and the defendant as claimed by the defendant ?
5. Whether the defendant took forcibly possession of the house
property i.e. C schedule property on 23-5-1998 night by break open the
pad-lock as alleged in the plaint ?
6. Whether the defendant committed theft of plaint D schedule
moveables on 25-5-1998 as alleged in the plaint ?
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7. Whether the defendant has become the absolute owner of the
plaint A to C schedule immoveable properties after the death of Mutyala
Gani Raju and his wife Satyavathi ?
8. Whether the plaintiff is entitled to the declaration that he has
acquired right, title and interest over the plaint A, B, C and D schedule
properties under the Will dated 08-5-1998 ?
9. Whether the plaintiff is entitled to recover possession of plaint A
B C D schedule properties after ejecting the defendant therefrom ?
10. Whether the defendant is entitled to the return of the plaint C
schedule moveables or its value thereof ?
11. Whether the plaintiff has a right to claim future mesne profits
for the year 1998 as alleged in the plaint ?
12. Whether the plaintiff committed breach of entrustment of the
property lying in the plaint C schedule as alleged in the counter claim
made by the defendant ?
13. Whether the plaintiff is liable to pay counter claim made by
the defendant by way of damages to the tune of Rs.95,980/- to the
defendant ? and
14. To what relief ?
(l) During the course of the trial of the suit, the plaintiff
got himself examined as P.W.1 and got examined P.Ws.2 to 12
witnesses and got marked Exs.A-1 to A-35 documents in
proof of his case. The defendant was examined as D.W.1 and
he got examined D.Ws.2 to 16 witnesses and got marked
Exs.B-1 to B-23 to substantiate his case.
(m) At the culmination of the trial of the suit, after
hearing both the parties to the suit and upon considering the
evidence on record, the learned I Additional District Judge
held issues 1 to 11 against the plaintiff and in favour of the
defendants and issues 12 and 13 which relate to counter
claim against the defendant and in favour of the plaintiff and
thereby dismissed the suit and also the counter claim.
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(n) Aggrieved thereby, the plaintiff has preferred the
present appeal questioning the legality and validity of the
impugned judgment in dismissing the suit.
3. When the appeal came up for hearing before this
Court, heard Sri Ch.V. Prasad Babu, learned counsel for the
appellant and Smt. Lakshmi Neelima, learned counsel,
representing Sri G.Krishna Murthy, learned counsel for the
respondent.
4. For the sake of convenience, the parties will be
referred as they are arrayed in the plaint in this appeal suit
also.
5. The points that emerge for determination in this
appeal are:
1. Whether the adoption of the defendant taken by Satyavathi and
Gani Raju under Ex.B-4 registered adoption deed is valid under law and
whether the defendant is adopted son of late Satyavathi and her
husband Gani Raju ?
2. Whether the unregistered Will dated 08-5-1998 relied on by the
plaintiff is true, valid and binding on the defendant ?
3. Whether the plaintiff became absolute owner of the plaint
schedule properties by virtue of the Will dated 08-5-1998 pleaded by him
and whether he is entitled for declaration of his title to the plaint
schedule property and for recovery of the said property after ejecting the
defendant therefrom ?
4. Whether the defendant became absolute owner of the plaint
schedule property after the demise of Satyavathi as sole surviving legal
heir as the adopted son of late Satyavathi and her husband Gani Raju ?
5. Whether the impugned judgment and decree of the trial Court
are sustainable under law and whether they warrant interference of this
Court and whether they are liable to be set aside ? and
6. To what relief ?
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6. Point No.1: Before adverting to the point, a few
admitted facts relevant in the context require to be noticed
and taken into consideration. Admittedly, the property in
question belongs to late Satyavathi and her husband Gani
Raju. They are the absolute owners of the said property.
The plaintiff himself has unequivocally pleaded in his plaint
that Satyavathi owned and possessed plaint A and D
schedule property and it is her self-acquired property and her
husband Gani Raju was the owner of plaint B and C schedule
property and it is his self-acquired property. Even the
defendant did not dispute the said fact that both Satyavathi
and her husband Gani Raju are the absolute owners of the
plaint A to D schedule property. So, indisputably late
Satyavathi and Gani Raju are the absolute owners of the said
property. Admittedly, they do not have any issues. So, the
legal tussle is inbetween the plaintiff and the defendant who
are claiming to be the owners of the said property after their
demise. The plaintiff claims the said property on the strength
of the Will dated 08-5-1998 said to have been executed by
late Satyavathi during her life time bequeathing the said
property in his favour. The defendant claims the said
property in his capacity as an adopted son of Satyavathi and
Gani Raju under Ex.B-4 certified copy of the registered
adoption deed. Therefore, the findings given on point No.1
and point No.2 would decide as to who is entitled to the said
property.
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7. Now, coming to point No.1, which relates to the
validity of adoption of the defendant as their son by late
Satyavathi and her husband Gani Raju is concerned, it is
significant to note that as can be seen from the pleadings in
the plaint, the plaintiff did not deny the factum of the said
adoption. He has categorically and unequivocally admitted
that Satyavathi and Gani Raju have adopted the defendant as
their son on 19-6-1991. It is clearly pleaded and admitted in
the plaint that the defendant was adopted by Mutyala
Satyavathi and her husband Gani Raju. However, he only
pleads that the said adoption is not valid and enforceable as
the defendant is aged above 15 years and was aged about
16 years at the time of the said adoption and as such the said
adoption is not valid and no rights would accrue to the
defendant as the adopted son of Satyavathi and Gani Raju
and as such he cannot claim any right in respect of the plaint
schedule properties as their adopted son.
8. In order to appreciate the said contention, it is
expedient to go through Section 10 of the Hindu Adoption and
Maintenance Act, 1956, wherein certain conditions are
enumerated for valid adoption of a child. It reads thus:
"10. Persons who may be adopted- No person shall be
capable of being taken in adoption unless the following
conditions are fulfilled, namely-
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
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(iii) 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;
(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."
9. Clause (iv) of the above Section 10 is relevant in the
context to resolve the present controversy. It says that no
person shall be capable of being taken in adoption if he
completes 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.
10. Therefore, from a plain reading of the above, it is
manifest that a person who has completed the age of 15 years
cannot be taken in adoption. However, there is an exception
to the said rule and if there is a custom or usage prevailing in
the said community of taking a person who is above the age
of 15 years in adoption, then the adoption of a person who is
aged about more than 15 years would also be a valid
adoption. Therefore, in the light of the condition in Clause (iv)
of Section 10 of the Act, the present controversy is to be
resolved.
11. Although the plaintiff unequivocally admitted the
factum of adoption of the defendant by Satyavathi and Gani
Raju, he sought to assail the said adoption before the trial
Court on the ground that necessary requirement of actual
giving and taking the child in adoption between the natural
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parents and the adoptive parents is not established and that
Ex.B-4 certified copy of the adoption deed is not valid in
evidence. The trial Court rejected both the said contentions
by recording valid reasons to that effect on proper
appreciation of evidence on record. In fact, the defendant has
adduced evidence in proof of actual taking and giving in
adoption between the natural parents and adoptive parents in
the trial Court. The natural father of the defendant, who is
the best person and competent witness to prove that the
defendant was actually given in adoption by him and taken as
adopted son by his adoptive parents, was examined as D.W.3
and the defendant also got examined D.W.4 and D.W.10
witnesses who officiated the ceremony of adoption. They
spoke about the factum of adoption and also regarding the
fact that the defendant was in fact given in adoption by his
natural parents and was taken in adoption by the adoptive
parents at the time of adoption. D.Ws.9, 10, 14, 15 and 16
also spoke regarding the factum of adoption in their evidence.
Exs.B-9 to B-14 are the photographs with corresponding
negatives taken at the time of adoption of the defendant and
these photographs and negatives are proved by the evidence
of D.W.13, who is the photographer. So, the oral evidence of
D.Ws.3, 4 and 10 and the oral evidence of D.Ws.9, 14, 15 and
16 coupled with Exs.B-9 to B-14 photographs clinchingly
proves that the defendant was given in adoption by his
natural parents to Satyavathi and Gani Raju and they as
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adoptive parents have taken the defendant in adoption as
their adopted son. Therefore, the necessary requirement of
giving the defendant in adoption by the natural parents and
taking the defendant in adoption by the adoptive parents has
been amply proved in this case with acceptable legal evidence.
12. As regards the contention of the plaintiff that the
defendant was aged more than 15 years at the time of the
adoption and the said fact is suppressed by his parents and
they have deceptively given the defendant in adoption to
Satyavathi and Gani Raju and that Satyavathi subsequently
came to know about the said fraud and did not accept the
defendant as her adopted son and the defendant also
relinquished his character as her adopted son and went back
to his natural parents is concerned, the evidence on record
completely belies the said contention. Admittedly, the
adoption took place on 19-6-1991. Ex.B-4 is the certified
copy of the registered adoption deed executed to that effect.
This document proves that the defendant was taken in
adoption by his adoptive parents from his natural parents.
13. Now, it is to be seen whether the defendant was
aged more than 15 years at the time of the said adoption or
not. It is the case of the defendant that he was born on
04-4-1977. To substantiate the said material fact, he has
examined his natural father D.W.2 and he has also produced
Ex.B-8 which is the extract of the record from the Primary
School run by Mandal Parishad. To prove this Ex.B-8, he has
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examined D.W.7, who is the Head Master of the said Mandal
Praja Parishad Elementary School, Atchuthapuram. D.W.2,
who is the natural father of the defendant, is the best person
and competent witness being his natural father to speak
about the date of birth of the defendant. His evidence proves
that the defendant was born on 04-4-1977. His evidence
further shows that his marriage actually took place on
16-11-1975 in Annavaram. Apart from this evidence of
D.W.2, the natural father of defendant, the evidence of Ex.B-8
which is the extract of the school register also proves that the
defendant was born on 04-4-1977. D.W.7, the Head Master,
stated that he issued Ex.B-8 certificate and he brought the
original admission register of the school from the year 1977
and as per the entry at page-15 of the original admission
register, the defendant was admitted into the school in the
second class on 18-6-1982 under Admission No.930 and he
further deposed that the defendant studied in their school up
to fourth class and as per the entries in the admission
register, his date of birth is 04-4-1977. He has also stated
that he issued Ex.B-8 on the basis of the entries in the
original admission register of the school. The Photostat copy
of the entries at page-14 of the original register is Ex.B-20.
Therefore, the evidence of D.W.2 coupled with Ex.B-8 and the
testimony of D.W.7 who proved Ex.B-8 now proves that the
defendant was born on 04-4-1977. So, it is now evident that
he was aged about 14 years at the time of his adoption in the
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year 1991. Whether the adoption was on 17th as contended
by the plaintiff or on 19th of June, 1991, it makes no
difference and as per the evidence discussed supra, it is now
established beyond doubt that the defendant was only aged
about 14 years at the time of his adoption. So, he is well
within the age limit of 15 years as contemplated under Clause
(iv) of Section 10 of the Act. The contention of the plaintiff
that Ex.B-8 certificate is not valid has been rightly rejected by
the trial Court for the reasons recorded in the impugned
judgment. So, the said adoption is legally valid.
14. Even otherwise, it is the case of the defendant that
he belongs to Kamma caste and there is a custom or usage in
his caste of adopting persons more than 15 years and as such
even if he is more than 15 years of age as contended by the
plaintiff that still the said adoption is valid.
15. It is already noticed that there is an exception
contained in Clause (iv) of Section 10 of the Act stating that if
there is a custom or usage prevailing in any particular
community of taking persons more than 15 years in adoption
then the said adoption of a person beyond 15 years of age
would also be a valid adoption. The defendant has examined
D.W.11 to prove that there was such custom or usage
prevailing in their caste. This D.W.11 deposed that he was
adopted by one Damina Lakshmi Narasamma, wife of late
Veeranna under Ex.B-22 registered adoption deed dated
03-02-1947 and he was aged 18 years at the time of the said
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adoption and as he belongs to Kamma community that there
is a custom in their caste of adopting a person of any age
before marriage. He also stated that Ex.B-23 is his date of
birth certificate which shows that he was born on 01-7-1929.
He also stated that about four years ago, one B.Rama Rao of
Kodamanchili Village of West Godavari District adopted one
Kanumuri Satyanarayana Murty of Teki Village who was also
aged about 18 years at the time of the adoption. The said
evidence of this D.W.11 who deposed relating to the fact that
there was a custom or usage prevailing in their community of
adopting persons more than 15 years of age was not
shattered or shaken in any way in his cross-examination to
discredit his testimony given to that effect. The said evidence
of D.W.11 establishes that there is a custom or usage
prevailing since long in their community of adopting persons
more than 15 years of age. Therefore, even if the defendant is
more than 15 years age at the time of the adoption under
Ex.B-4 as contended by the plaintiff, still the said adoption is
valid under Clause (iv) of Section 10 of the Act. The Andhra
Pradesh High Court in the case of State of A.P. v. M.Pullam
Raju1 held at para-3 of the judgment as follows:
"3. ... ... ... Sec.10(iv) of the Act, therefore, leaves no doubt
in my mind that if any boy or girl to be adopted, even
though completed 15 years on the date of the adoption,
would be eligible for valid adoption provided there is any
custom or usage prevalent in the particular caste or
community to which the parties belong."
1 1980(1) A.P.L.J. 356
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16. At para-4, the Court further held as follows:
"4. This view of mine gains support from the reported cases
which I may refer to in this context. In Hanumantha Rao
vs. Hanumayya 1964(1) An.WR. 156 a Division Bench of
this Court has held that the 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."
17. The wording used in Section 10(iv) is custom or
usage. So, proof of anyone of them is sufficient since the
disjunctive "or" is used. In order to prove a custom, it must
be shown to be in existence since a long time. To prove
usage, it need not be proved that it was in existence for such
a long time.
18. At para-7 of the above judgment of the A.P. High
Court, it is held as follows:
"7. ... ... ... The expression "custom or usage" would
indicate that if either of the two is established by evidence,
the exception must prevail. "Usage" cannot be equated to
'custom' which is now well settled to be of continuous one
from time immemorial. The term "usage" according to
Oxford dictionary means "manner of using or treating;
habitual but not necessarily immemorial practice".
Therefore, even if the practice of taking a boy or girl aged
more than 15 years in adoption is proved to be in vogue,
habitual practice though not necessarily immemorial as in
the case of custom, has to be given effect to. If 'custom' and
'usage' are used for the same purpose, there is no necessity
to use both the expressions and the expression "custom or
usage" employed in Sec.10(iv) must have a specific purpose
and the same has to be interpreted in a pragmatic,
reasonable and practical way."
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19. Therefore, considering the evidence of D.W.11 who
has given evidence relating to the usage prevailing in their
caste of adopting persons who are aged more than 15 years in
the light of the exception carved out in Section 10(iv) of the
Act and the interpretation given to the expression "usage"
used in Section 10(iv) in the above judgment of this High
Court, it is to be held that even if the defendant is found to be
aged more than 15 years, it will not invalidate his adoption
under Ex.B-4. Therefore, the contention of the plaintiff that
the adoption of the defendant under Ex.B-4 is not valid and
no rights will be accrued to him in respect of the plaint
schedule properties of late Satyavathi and Gani Raju holds no
water and it is liable to be rejected. As per the evidence on
record, it is proved with acceptable legal evidence that the
defendant was given in adoption by his natural parents and
he was taken in adoption by his adoptive parents and the
said adoption is valid.
20. Section 16 of the Act is also relevant in the context
to consider, which says that whenever there is a registered
document purporting to be record of an adoption made and is
signed by the person giving and the person taking the child in
adoption, then it shall be presumed that the adoption has
been made in compliance with the provisions of the Act,
unless and until it is disproved. Here is a case where the
factum of adoption is evidenced by Ex.B-4 registered adoption
deed. Therefore, in view of Section 16 of the Act, when the
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adoption was taken under a registered document, it shall be
presumed that the adoption has been made in compliance
with the provisions of the Act. So, it shall be presumed that
all the requirements contemplated under Section 10 of the
Act for valid adoption have been complied with in this case.
It is a rebuttable presumption and the plaintiff can rebut the
said presumption by adducing any direct evidence to that
effect or by showing any preponderance of probabilities.
He miserably failed to displace the said presumption either by
adducing any direct evidence or by showing any
preponderance of probabilities. Except making a bald
assertion that there was no giving and taking the child in
adoption as required under Section 10 of the Act and that he
is more than 15 years of age contrary to Section 10(iv) of the
Act, he has miserably failed to substantiate the said
contention. Therefore, even as per Section 16, it shall be
presumed that all the essential requirements are fulfilled
relating to the adoption of the defendant under Ex.B-4.
Although it is sought to be contended that Ex.B-4 which is
a certified extract cannot be admitted in evidence as
secondary evidence, for valid reasons, the trial Court while
discussing Section 65 of the Evidence Act and particularly
Section 65E of the Evidence Act, which deals with
admissibility of secondary evidence relating to certified copies
of public documents, rejected the said contention and held
that Ex.B-4 is admissible in evidence. This Court do not find
21
any legal flaw in the said findings recorded by the trial Court
in dealing with all the said contentions raised by the plaintiff.
Therefore, the point is answered accordingly and affirmatively
in favour of the defendant and against the plaintiff holding
that the defendant is the adopted son of late Satyavathi and
Gani Raju under Ex.B-4 and that it is a valid adoption.
21. Points 2 and 3: It is the case of the plaintiff that he
is the son of the brother of late Satyavathi and two years prior
to her death, the defendant left her and went away to his
natural parents and at that time, he took care of Satyavathi
and he also admitted her in the hospital during her last days
before her death and Satyavathi suffered from the ailment of
paralysis on 09-5-1998 and on 08-5-1998 she executed a Will
in his favour bequeathing her plaint schedule properties in
his favour. Therefore, he became absolute owner of the said
properties by virtue of the said Will after the demise of
Satyavathi on 26-5-1998. The defendant denied that he left
Satyavathi two years prior to her death and went away to his
natural parents as she refused to give any property to him
and he pleaded that on her advice that he went to see his wife
and his newly born child at his in-laws' house in Karnataka
State just a few days prior to her hospitalisation and on his
return when he found that his house was under lock and key
and on enquiry when he came to know that Satyavathi was in
hospital, he went to the hospital and the defendant did not
give keys of the house to him and as such he broke open the
22
lock of the door of the house. He denied that Satyavathi
executed any such Will dated 08-5-1998 in favour of the
plaintiff. It is also his case that there are several suspicious
circumstances surrounding the Will which proves that it was
fabricated and it is not true and valid.
22. Therefore, the burden is on the propounder of the
Will to remove all the said suspicious circumstances
surrounding the Will and also to prove that Satyavathi has
validly executed the said Will in his favour. The scribe of the
Will and also the attestors of the Will are the residents of the
other villages. The evidence of the scribe shows that he
prepared the Will in the hall of the house of the plaintiff and
the testator i.e. Satyavathi is in the other room and he has
taken the Will after it was drafted by him into the room and
obtained her thumb impressions on it. So, it is evident that
the scribe has not drafted or prepared the Will in the presence
of the testator Satyavathi. The Will was prepared in the hall
while the testator is in other room. The scribe P.W.9 deposed
that he maintains a register and enters the details of
execution of Wills by him in the said register and submit the
same annually before the Registrar for audit and that he did
not enter the fact that he has drafted the present Will in
question in the said register. However, it is stated by him in
his re-examination that he only enters the details regarding
the registered Wills in the said register and not unregistered
Wills. In the further cross-examination, he stated that he
23
enters the fee collected by him for drafting the Wills.
So, considering this evidence on record of the scribe, the trial
Court disbelieved valid execution of the Will and held that
there are several suspicious circumstances surrounding the
said Will which the plaintiff as a propounder of the Will failed
to remove such adverse circumstances surrounding the Will.
No doubt, the mere fact that the scribe and attestors of the
Will are from the other villages by itself cannot be a ground to
disbelieve the Will as contended on behalf of the plaintiff
while placing reliance on the judgment of the Madras High
Court in A.Ramesh v. Manohar Prasad (AIR 1999 Madras 149)
and also in S.Kaliyammal v. K.Palaniammal (AIR 1999 Madras
40) and the judgment of the Himachal Pradesh High Court in
Naudha alias Bidha v. Sudarshan Singh (1998(3) Civil L.J.
830), wherein it is held that the mere fact that the attesting
witnesses not belonging to village of testator cannot be termed
as suspicious circumstances. Yet the law is equally well
settled that each case has to be considered on its own merits
of the case. Even though the above circumstance cannot be
the sole factor to suspect the genuineness of the Will, when
there is no acceptable explanation given for not choosing the
local scribe and the witnesses and when the other
circumstances emanating from the record which justifies the
conclusion that there are strong suspicious circumstances
surrounding the Will which are not removed by the
propounder, then in appropriate cases, the Court is justified
24
in disbelieving the Will on the ground that strong suspicious
circumstances surrounding the Will are not removed by the
propounder of the Will.
23. In the instant case, there are strong circumstances
which are adversely surrounding the Will which throws any
amount of suspicion over the genuineness of the Will which
the plaintiff has miserably failed to remove the same.
The learned trial Judge has taken an extensive exercise of
subjecting the evidence relating to the proof of Will adduced
by the plaintiff to judicial scrutiny and recorded a finding that
the plaintiff failed to remove the said suspicious
circumstances surrounding the Will and that the Will is not
valid and binding on the defendant. Upon reappraising the
evidence on record, this Court also found that there are
strong suspicious circumstances surrounding the Will which
throws any amount of doubt regarding the genuineness and
valid execution of the said Will and that the plaintiff failed to
remove the same. The said suspicious circumstances are
dealt with hereunder.
24. The contention of the plaintiff that the defendant
never lived with Satyavathi is proved to be false from his own
pleadings in the plaint. It is pleaded by him that two years
prior to the death of Satyavathi, the defendant left her and
went away to his natural parents, which clearly indicates that
from the year 1991 when he was taken in adoption that the
defendant was with Satyavathi and lived with her till 1996
25
even according to the case pleaded by the plaintiff in the
plaint. So, this plea belies the contention of the plaintiff that
the defendant never lived with Satyavathi after the adoption.
So, when he has taken such false plea which is clearly borne
out by the record i.e. from the pleadings and the evidence on
record, it throws any amount of doubt regarding the
genuineness of the valid execution of the Will. When the
defendant admittedly lived with her till 1996 as per the case
of the plaintiff and till she was hospitalised as per his case,
it would be beyond the comprehension of any prudent man to
believe that Satyavathi while completely ignoring his adopted
son has executed a Will in favour of the plaintiff, who is the
son of her brother who never looked after her affairs till she
was hospitalised in the month of May, 1998. Further, as per
the evidence on record and even as per the contents of the
Will Ex.A-2, as can be seen from the last lines of the Will, it is
evident that the testator Satyavathi was a signatory. It is
stated that as she could not sign on that day due to her
ailment that her thumb impression was taken. No medical
evidence was adduced by the plaintiff to prove that she was
unable to sign at the time of her ill health due to any physical
disability or ill health. Therefore, obtaining the thumb
impression of a person who is a signatory/testator is another
strong suspicious circumstance impeaching the validity of the
Will. Further, it is relevant to see that she is under the
dominant influence of the plaintiff in her lonely state while
26
she was suffering from serious ill health and as such taking
advantage of the said circumstances, obtaining her thumb
impressions on a white paper in the said situation and
thereafter fabricating a Will on the said papers also cannot be
completely ruled out as contended by the defendant.
Therefore, for all these reasons, it cannot be held that Ex.A-2
Will is a valid Will executed by the testator with an intention
to bequeath all her properties in favour of the plaintiff.
25. Therefore, Ex.A-2 Will is not found to be validly
executed by Satyavathi in favour of the plaintiff bequeathing
her property in favour of the plaintiff. So, the plaintiff has
failed to establish his title to the plaint schedule properties
and that he has become an absolute owner of the said
property. His entire case relating to declaration of his title is
based on Ex.A-2 Will, which is now proved to be not valid and
binding on the defendant. Therefore, this finding cuts the
case of the plaintiff at its roots. In a suit for declaration of
title or ejectment, the entire burden is on the plaintiff to prove
his valid title to the plaint schedule property without
depending on the weakness of the case of the defendant.
Failure to prove his clear title to the disputed property
non-suits the plaintiff. Therefore, as he failed to prove Ex.A-2
Will relied on by him and as it is found that he is not the
absolute owner of the plaint schedule properties, he is not
entitled to any declaration of his title to the plaint schedule
property. Consequently, he is not entitled to the relief of
27
ejectment of the defendant who is in possession of the
property therefrom. Therefore, these two points are also held
affirmatively in favour of the defendant and against the
plaintiff.
26. Point No.4: In view of the finding recorded on point
No.1 that the defendant is the adopted son of Satyavathi and
Gani Raju, under Ex.B-4 and that the said adoption is valid
under law, he being the adopted son of Satyavathi and Gani
Raju who are the absolute owners of the plaint schedule
properties inherited the said property from Satyavathi and
Gani Raju, who died intestate as it is found that Ex.A-2 Will
is not valid and binding on the defendant. So, the defendant
in his capacity as the adopted son of Satyavathi and Gani
Raju, succeeded to their estate and became absolute owner of
the plaint schedule property and he is entitled to enjoy the
same. The point is answered accordingly in favour of the
defendant.
27. Point No.5: The trial Court while answering issue
Nos.4 to 7 particularly held that the defendant is entitled to
have possession of the said plaint schedule property in his
own right as he became the absolute owner of the said
property as the adopted son of Satyavathi and Gani Raju.
The trial Court also while considering the facts and
circumstances of the case and the oral and documentary
evidence and on proper appreciation of the same, arrived at
a right conclusion that the adoption of the defendant under
28
Ex.B-4 is valid and that the Will Ex.A-2 set up by the plaintiff
is not valid and binding on the defendant and held that the
plaintiff is not the absolute owner of the said properties and
the defendant is entitled to the same and recorded findings to
that effect which are based on proper appreciation of evidence
on record. Upon reappraisal of the said evidence on record,
this Court also found that the adoption of defendant is valid
and the Will set up by the plaintiff is not valid and binding on
the defendant and that the defendant became the absolute
owner of the said property in his capacity as the adopted son
of Satyavathi and Gani Raju and that he is entitled to be in
possession of the said property in question and enjoy the
same. Therefore, the impugned judgment and decree of the
trial Court are perfectly sustainable under law. They
absolutely warrant no interference in this appeal and the
appeal is liable to be dismissed as it is devoid of any merit.
Hence, the point is answered accordingly.
28. Point No.6: In the result, the appeal suit is
dismissed with costs. Pending applications, if any, shall
stand closed.
__________________________________________
CHEEKATI MANAVENDRANATH ROY, J.
07 May, 2020. th Ak 29 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Appeal Suit No.1291 of 2002 07th May, 2020.
(Ak)