ATLURI BRAHMANANDAM (D) THROUGH LRS.versusANNE SAI BAPUJI

               [2010) 14 (ADDL.) S.C.R. 339


     ATLURI BRAHMANANDAM (0) THROUGH LRS.                       A
                              v.
                      ANNE SAi BAPUJI
              (Civil Appeal No. 9714 of 2010)
                   NOVEMBER 18, 2010
                                                                B
           [DR. MUKUNDAKAM SHARMA AND
                  ANIL R. DAVE, JJ.]

     Hindu Adoption and Maintenance Act, 1956 - ss. 1O(iv)
and 16 - Adoption - Adopted child more than 15 years of age C
on the date of adoption - Validity of- held: Exception to s.
1O(iv) provides that if custom or usage permits the adoption
beyond the age of 15 years, such adoption is valid - On facts,
customs in 'Kamma' Community of Andhra Pradesh permits
adoption beyond 15 years of age- Such custom having been o
repeatedly recognized by courts, it has blended into Jaw of the
land and proof thereof not necessary u/s. 57 of Evidence Act
- In view of s. 16 also, the deed of adoption being a registered ·
deed, court has to presume that the adoption was in
compliance with the provisions of the Act as the deed has not E
been disproved- Evidence Act, 1872- s. 57 - Judicial notice.

     In a suit filed by the respondent-plaintiff against the
appellant-defendant, it was stated by the plaintiff that he
was the adopted son of the auction purchaser and, thus,
was entitled to claim for recovery of possession of the         F
suit property. The appellant-defendant denied that the
plaintiff was the adopted son. Courts below had decreed
the suit.

    In an appeal to the Supreme Court, the issue for G
consideration was whether the plaintiff was the adopted
son of the auction-purchaser, as he was adopted when
he was more than 15 years of age and whether the
adoption was barred by s. 1O(iv) of Hindu Adoption and
                             339                                H
    340    SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A   Maintenance Act, 1956.
          Dismissing the appeal, the Court

       HELD: 1.1. The adoption of the respondent by his
  adoptive father is legal and valid. Clause (iv) of Section
B 10 of Hindu Adoption and Maintenance Act, 1956
                   a
  provides that person to be adopted should not have
  completed the age of 15 years. But there is also an
  exception that if there is a custom or usage applicable
  to the parties permitting persons who have completed
C 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
D 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 compliance of the provisions
  of the Act unless and until it is disproved. [Paras 12] [345-
E H; 346-A-C]
       1.2. In the instant case the respondent was more than
  15 years of age at the time of his adoption. But the
  respondent has proved by leading cogent and reliable
  evidence like Ext. A-8 (the deed of adoption) that there is
F a custom in the "Kamma" community of Andhra Pradesh
  for adoption of a boy even above the age of 15 years.
  Therefore, the exception to s. 10(iv) of the Act which is
  en grafted in the same part of the pr'Jvision of Section 10
  of the Act was satisfied. Since the aforesaid custom and
G 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
H the aforesaid adoption. [Para 13] [346-D-F]
 ATLURI BRAHMANANDAM (D) THROUGH LRS. v.               341
             ANNE SAi BAPUJI
     2. The ordinary rule is that all customs general or A
otherwise have to be proved, but u/s. 57 of the Evidence
Act, 1872 nothing need to be proved of which the court
can take judicial notice. When a custom has been
repeatedly recognized by courts, it is blended into the law
of land and proof of the same would become B
unnecessary under Section 57 of Evidence Act. 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 c
legal and valid.[Paras 15 and 16) [347-A-C]

      Ujagar Singh vs. Mst. Jeo AIR 1959 SC 1041 - relied
on.

    Nara Hanumantha Rao vs. Nara Hanumayya and Anr.           D
1964 AndhraWeekly Reporter 156 - referred to.
                     Case Law Reference:
      1964 Andhra Weekly     Referred to.          Para 14
      Reporter 156                                            E
      AIR 1959 SC 1041       Referred to.          Para 15

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9714 of 2010.
                                                              F
    From the Judgment & Order dated .10.6.2008 of the High
Cour of Andhra Pradesh at Hyderabad in Appeal Suit No. 2185
of 1989.

    M.V. Durga Prasad, G. Ramakrishna Prasad, B,
Suyodhan, Bharat J. Joshi for the Appellants.                 G

    G.V.R. Choudhary, K. Shivraj, Chaudhuri, A. Chandra
Sekhar for the Respondent.

      The Judgment of the Court was delivered by
                                                              H
    342    SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A         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
    High Court has dismissed the appeal filed by the appellant
8
    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
C   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
D   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
E   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 judgment-debtor's
F   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
G   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.
H
 ATLURI BRAHMANANDAM (D) THROUGH LRS. v. 343
ANNE SAi BAPUJI [DR. MUKUNDAKAM SHARMA, J.]
No. 29of1967 and prevented delivery of possession. However,        A
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        B
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 properties devolved
on respondent and, therefore, he is entitled to a decree for
recovery of possession.                                            c
     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 D
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 E
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. F

     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
Seetharamaiah. In the plaint filed, the respondent claimed         G
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
                                                                   H
    344   SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A   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
8
  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
C 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.

D         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
E   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.
F   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
G evidence led by PW-1, the respondent. We have carefuliy
  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
H adoption deed went unrebutted and unchallenged. We have
 ATLURI BRAHMANANDAM (D) THROUGH LRS. v. 345
ANNE SAi BAPUJI [DR. MUKUNDAKAM SHARMA, J.]

already referred to the recitals in the said documents which is        A
 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            B
·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:-
                                                                       c
     "10. No person shall be capable of being taken in adoption
     unless the following conditions are fulfilled, namely:-

      (i)
                                                                       D
      (ii)

      (iii)

      (iv)    he or she has not completed the age of fifteen
              years, unless there is a custom or usage applicable      E
              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 force is produced before any       F
              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   G
              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             H
    346    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A 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
B 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
c presume that the adoption has been made in 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
D 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
E 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
F 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
G Division Bench has recognized that there is a custom among
  the members of the "Kam ma" 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.

H         15. In the case of Ujagar Singh v. Mst. Jeo reported in
 ATLURI BRAHMANANDAM (D) THROUGH LRS. v. 347
ANNE SAi BAPUJI [DR. MUKUNDAKAM SHARMA, J.]
AIR 1959 SC 1041, this Court has held that the ordinary rule A
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 B
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 C
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.

     · 17. In view of the above discussion, we find no infirmity at D
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.                                               E

K.K.T.                                      Appeal dismissed.