LexVOLETI VENKATARAMA RAO versus KESAPRAGADA BHASKAR RAO & ORS.
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A B c D F G VOLETI VENKATARAMA RAO v. KESAPRAGADA BRAS.KARA RAO & ORS. April 15, 1969 [S. M. Suau, R. s. BACHAWAT AND v. RAMASWAMI, JJ.] Hindu laY.~A.doption-Challenge to adoption after a long lapse of years-Presumption as to validity. One B, a Brahmin Karnam, executed a will in 1903 authorising his widow to adopt. After bis death, the widow adopted R in 1904. The first respondent was R's adopted son. R died in 1950, end his adoptive mother died in 1952. During his lifetime, R was recognised by evezy member of the family as the adopted son elf B, and he was registered as the Karnam and he acted as the Karnam till his death. In 1953, the appellant, claiming to be the nearest heir of B filed a suit for recovery of possession of B's property contending that R's adoption was invalid, b&- csuse, the a4optive mother had not attained the age of discretion at the time of the lldoption and was therefore not competent to make the adop- tion. The shit was dismissed. In appeal to this Court, HELD : Where there is a lapse elf several years between the adoptiOn and its being questioned, the burden rests heavily upon him who challenges it, and every allowance for the absence of evidence to prove it must be favourably entertained. [303 D-E] In the rresent case, having regirrd to the long lapse of time, the re- cognition o R as, the adopted son of B, and the fact that those who could have given evidence in favour of the adoption had passed away, a strong presumption in favour of the validity of adoption should be drawii. The al'l'ellant made no attempt to produce the certified copy of the register of bil:tlu which would have shown the exact age of the mother and thus fail- ed ,to rebut the presumption. [303 C-D; F] Venkataseetaramil Chandra Row v. Kanchu Marthi Raju A.LR. 1925 P.C. 201 applied. CML APPELLATE JURISDICTION : Civil Appeal No. 757 of 1963. Appeal by special leave from the judgnient and decree dated November 29, 1960 of the Andhra Pradesh High Court in Appeal No. 261 of 1956. M. C .Chag/a, R. Thiagarajan, and T. Satyanarayana, f.or the appellant. Suryanarayana,nurthy and K. Jayaram, for respondents Nos. l, 4 to 6, 9 to fl, 13, 17, 25, 26, 29, 39, 42, 45, 47, 55 to 57, 59, 63 and 64. H The Judgment of the Court was delivered by Bacbawat, J. This dispute refates to the succes8ion to the im- moveable properties of late Bhaskara Rao, a Brahmin karnam, 302 SUPREME COURT REPORTS (1970] I S CR. who died on November 29, 1903 without issue, but leaving a widow. The suit was instituted on April 15, 1953 by the appel- lant claiming to be the nearest heir of Bhaskara Rao for recovery of possession of the properties. The case of the contesting defen- dants is that Bhaskara Rao executed a will on November 29, 1903 authcrising his widow Scshamma to adopt a son, that pursuant to such authority she adopted Rajeswararao in or about May 1904 that Rajeswararao died in l 950 and that the first defendant is his adopted son. The courts below concurrently found in favour of the defendants on all the points. They held that ( 1 ) Bhaskara Rao duly executed •he will dated November 29, 1903; (2) his widow Seshamma in fact adopted Rajeswararao in or about May 1904 and the requisite ceremonies of adoption were performed. These findings of fact are no longer challenged. The trial court held that at the time of adoption Seshamma was about 14 years of age. The High Court held that having regard to the lapse of time there was a strong presumption that Seshamma had attained the usual age of discretion at the time of the adoption, that the presumption had not been rebutted and that the adoption was valid. Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption. He relied on the followi.ng passage in MuNa's Principles of Hindu Law. 13th ed. art. 465, page 491 :- "A minor widow may adopt in the same circum- stances as an adult widow, provided she has attained the age of discretion and is able to form an indepep.<lent judgment in selecting the boy to be adopted. Accord- ing to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras writers, at the end of the sixteenth year. The former view was taken in a recent Madras case." Now there is no clear evidence on the question of Seshamma's age in May 1904. The plaint said that she was then 10 years
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