Appeal No 757 of 1963
Appeal by special leave from the judgment and decree dated November 29 1960 of the Andhra Pradesh High Court in Appeal No 261 of 1956
M C Chagla R Thiagarajan and T Satyanarayana for the appellant
Suryanarayanamurthy and K Jayaram for respondents Nos 1 4 to 6 9 to 11 13 17 25 26 29 39 42 45 47 55 to 57 59 63 and 64
The Judgment of the Court was delivered by Bachawat J
This dispute relates to the succession to the immoveable properties of late Bhaskara Rao a Brahmin karnam 302 who died on November 29 1903 without issue but leaving a widow
The suit was instituted on April 15 1953 by the appellant claiming to be the nearest heir of Bhaskara Rao for recovery of possession of the properties
The case of the contesting defendants is that Bhaskara Rao executed a will on November 29 1903 authorising his widow Seshamma to adopt a son that pursuant to such authority she adopted Rajeswarara in or about May 1904 that Rajeswararao died in 1950 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 the 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 following passage in Mulla s Principles of Hindu Law 13th ed
article 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 independent judgment in selecting the boy to be adopted
According 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 of age
One of the written statements said that she was about 15 years old
Exhibit A 2 an extract from the register of deaths suggests that she was then aged about 14 years
In exhibit A 7 dated March 25 dated May 2 dated April 25  dated November 1 191 dated November 15 1911 Exs
A 11 and A 12 dated November 17 1911she was described as a minor
But exhibit B 138 dated August 9 1910 described her as a major
The evidence of DW 2 suggests that she was about 15 years old at the time of adoption
The evidence of DW 3 fixes her age at about 17 years in or about 1903
Evidence was adduced to show that she married in 1898 303 when she was 11 or 12 years old
The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age
The adoption was made in May 1904
It was challenged in 1953 after a lapse of about 50 years
The long delay in filing the suit is not satisfactorily explained
A declaratory suit challenging the adoption could have been filed soon after the adoption
Rajeswara Rao died in 1950 Seshamma died on October 2 1952
During his life time Rajeswararao was re cognised by every member of the family as the adopted son of Bhaskara Rao
He was registered as kamam and acted as such till his death
Under exhibit B 12 dated November 19 1937 the plaintiff s mother Kamappa purchased a property from Rajeswara Rao wherein he was described as the adopted son of Bhaskara Rao
Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao the strongest presumption arises in favour of the validity of the adoption
The law on this point is correctly stated in Mulla s Hindu Law 13th ed article 512 page 519 But when there is a lapse of 55 years between the adoption and its being questioned every allowance for the absence of evidence to prove such fact must be favourably entertained
It stands to reason that after a very long term of years and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act the burden must rest heavily upon him who challenges its validity See also Venkataseetarama Chandra Row vs Kanchu Marthi Raju1
The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away
The appellant has not rebutted this presumption and has not shown that Sashamma did not attain the age of discretion in May 1904 and was not competent to make the adoption
The courts below rightly found in favour of the factum and validity of the adoption
There is no merit in this appeal
The appeal is dismissed with costs
VPS Appeal dismissed
1 AIR 1925 PC 201 202


Summary:
One B a Brahmin Karnam executed a will in 1903 authorising his widow to adopt
After his death the widow adopted R in 1904
The first respondent was R s adopted son
R died in 1950 and his adoptive mother died in 1952
During his lifetime R was recognised by every member of the family as the adopted son of 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 because the adoptive mother had not attained the age of discretion at the time of the adoption and was therefore not competent to make the adop tion
The suit was dismissed
In appeal to this Court HELD  Where there is a lapse of 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 present case having regard to the long lapse of time the recognition of 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 drawn
The appellant made no attempt to produce the certified copy of the register of births which would have shown the exact age of the mother and thus failed to rebut the presumption
303 C D F Venkataseetarama Chandra Row vs Kanchu Marthi Raju AIR applied