Telangana High Court
Sri Ramoju Vimala Devi And Another vs Katnapalli Neelakantamdied And 4 … on 13 June, 2025
*THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
+ A.S.No.202 OF 2020
% 13--06--2025
# Ramoju Vimala Devi and Other
... Appellants
vs.
$ Katnapalli Vijayalaxmi and Others
... Respondents
!Counsel for the Appellant: Sri N.Ashok Kumar
^Counsel for Respondent Nos.2 to 6: Sri Vedula Srinivas
<Gist :
>Head Note :
? Cases referred:
AIR 1973 Andhra Pradesh 149
AIR 1994 Himachal Pradesh 144 : 1994(1) RRR 294
(2015) 4 SCC 601
1982 LAW SUIT (KAR) 271
(2020) 5 SCC 307
AIR 2005 SC 4362
AIR 2001 SC 2725
AIR 1987 SC 962
AIR 1983 SC 114
AIR 1970 SC 1286
AIR 1964 SC 136
AIR 1961 SC 1378
AIR 1959 SC 504
1951 SCC 1050
AIR 1969 SC 1359
1970(1) SCC 677
2/31 BRMR,J
AS.No.202_2020
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
A.S.No.202 OF 2020
Between:
Ramoju Vimala Devi and Other ... Appellants
And
Katnapalli Vijayalaxmi and Others
... Respondents
JUDGMENT PRONOUNCED ON: 13.06.2025
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________
B.R.MADHUSUDHAN RAO,J
3/31 BRMR,J
AS.No.202_2020
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
A.S.NO.202 OF 2020
JUDGMENT:
1. This appeal is filed by the appellants/defendants aggrieved by
the judgment and decree passed in O.S.No.225 of 2014, dated
31.10.2019 by the III Additional District Judge, Karimnagar.
2. The appellants are defendant Nos.1 and 2 and the respondents
are plaintiff Nos.1 to 5. For the sake of convenience, the parties will
be hereinafter referred to as plaintiffs and defendants.
3. Originally plaintiff No.1 has filed suit for partition declaring that
the original plaintiff is entitled to half share in the suit house with
separate possession as determined by preliminary decree and to pass
final decree and put the plaintiff in possession. The schedule property
is house bearing municipal door No.3-7-523 (old No.3-7-364) in an
extent of 693.33 Square yards situated at Vavillapally locality of
Karimnagar Town with boundaries. It is the case of the original
plaintiff that he was adopted by Katnapally Padmaiah son of
Neelakantam when the original plaintiff was 4 years old. K.Padmaiah
died on 12.03.1991. The natural father of the original plaintiff is
Sudarshanam, who is the elder brother of K.Padmaiah. Padmaiah and
his wife Kanakamma took the original plaintiff in adoption in the
presence of near relatives, which took place about 68 years back and
4/31 BRMR,J
AS.No.202_2020
the adoption ceremony took place in the old house of the father of
K.Padmaiah situated at Boiwada, Karimnagar. In the adoption
ceremony the natural parents of the original plaintiff K.Sudarshanam
put the original plaintiff in the hands of K.Padmaiah and his wife
K.Kanakamma. No adoption deed was executed at that time.
K.Padmaiah has admitted the original plaintiff in Government Primary
School at Gunj, Karimnagar when he was aged about five years, after
completion of Primary Education, he was admitted in Government
Middle School, Karimnagar and thereafter in Government Multi-
Purpose High School, Karimnagar, where he passed his Higher
Secondary Education in the year 1962. K.Padmaiah and
K.Kanakamma adopted defendant No.1 as their daughter when she
was 5 years old. Kanakamma died in the year 2010 and the schedule
property is a joint family property, prayed for partition.
4. Defendant No.2 who is the son of defendant No.1 has filed his
written statement that K.Padmaiah was the absolute owner of the suit
house till his death i.e., 18.03.1991 and he worked as a Government
Teacher, later became Head Master and retired on attaining the age of
Superannuation. Original plaintiff is the younger son of late
K.Sudarshanam, who was the elder brother of K.Padmaiah. Original
plaintiff was not adopted by K.Padmaiah and K.Kanakamma at any
point of time and no documents are filed to substantiate the valid
adoption. K.Padmaiah’s name was unfortunately entered in the school
5/31 BRMR,J
AS.No.202_2020
records of the original plaintiff, later on after coming to know about the
same, K.Padmaiah wrote letter to the Head Master, Government
Middle Cum High School, Karimnagar to correct the father name of the
plaintiff in school records. Based on the letter of K.Padmaiah the Head
Master of Middle Cum High School, Karimnagar addressed a letter to
DEO, Karimnagar for correction of the father name of the plaintiff in
the school records vide Letter No.245/246, dated 22.07.1959. The
then DEO, Karimnagar has authorised the Head Master, Middle School,
Karimnagar to correct the father name of the original plaintiff vide
Letter No.23086/23088, dated 31.12.1959 which clearly shows that
K.Padmaiah has not adopted the plaintiff as his son. Original plaintiff
with a malafide intention got entered the name of K.Padmaiah as his
father in the records in spite of knowing the fact that K.Padmaiah
wrote a letter to the Head Master to correct the father’s name of the
original plaintiff. K.Padmaiah and K.Kanakamma have adopted the
defendant No.1 when she was below one year and got her educated
and performed her marriage which is admitted by the plaintiff in the
plaint. K.Kanakamma during her life time executed a registered will-
deed in favour of defendant No.2 on 16.11.1996. Suit is not
maintainable and prayed to dismiss the same.
5.1. Plaint is filed on 31.12.2014 and defendant No.2 has filed
written statement on 20.04.2015 which was adopted by defendant
No.1.
6/31 BRMR,J
AS.No.202_2020
5.2. The following issues are framed by the learned Trial Court:
1. Whether the plaintiff is adopted son of late K.Padmaiah?
2. Whether the plaintiff is entitled for half share in the suit
schedule property?
3. To what relief?
5.3. During the pendency of the suit, original plaintiff died in the year
2016 and his legal heirs are brought on record as plaintiff Nos.2 to 5
as per orders in IA.No.361 of 2017, dated 17.01.2017. Defendants
have not filed additional written statement. The learned Trial Court
has recasted the issues as under:
1. Whether the first plaintiff is adopted son of late
K.Padmaiah?
2. Whether the plaintiff No.1 was entitled for half share in
the suit schedule property?
5.4. The learned Trial Court after going through the evidence led by
the parties has decreed the suit as prayed for.
6.1. Learned counsel for the appellants submits that the learned Trial
Judge wrongly answered issue No.1 with regard to the adoption of the
original plaintiff, and the plaintiffs failed to prove that the original
plaintiff was the adopted son of late K.Padmaiah and there is no proof
of adoption with regard to the ceremony nor examined any witness to
that effect except the interested witnesses i.e., PWs.2 and 4. PW.4 is
the sister of Late plaintiff No.1, she did not depose that adoption
7/31 BRMR,J
AS.No.202_2020ceremony was conducted by giving and taking. The burden lies on the
original plaintiff to prove that he was adopted by K.Padmaiah nor any
person is examined to substantiate the adoption. The learned Judge
failed to appreciate the fact that the appellant No.2 bequeathed the
schedule property by way of registered will-deed dated 16.11.1996
under Ex.B5 prior to filing the suit, subject property is no more in the
name of the appellant No.1/defendant No.1 against whom partition is
claimed.
6.2. The learned Judge was not right in coming to a conclusion that
original plaintiff is the adopted son of K.Padmaiah basing on Exs.A2 to
A12 and failed to take into consideration Exs.B6 and B7 i.e.,
correspondence letters between two Head Masters, who identified the
mistake of mentioning the father’s name of original plaintiff No.1 as
Padmaiah instead of Sudarshanam.
6.3. The learned Judge wrongly came to a conclusion that Ex.B5 is
not proved as no witnesses are examined. The authenticity of the
registered will can only be challenged by way of filing a suit for
cancellation of will-deed on the ground of mis-representation. Ex.B5
registered will-deed, dated 16.11.1996 indeed is not disputed by the
respondents/plaintiffs. Exs.B6 and B7 are public documents and they
were wrongly rejected by the learned Trial Judge. Plaintiffs have not
questioned the genuiness of Exs.B6 and B7.
8/31 BRMR,J
AS.No.202_2020
6.4. The learned Judge failed to appreciate the fact that respondent
No.1/plaintiff No.1 was never adopted by K.Padmaiah. The learned
Judge ought to have taken into consideration Ex.B6 which refers to TC
No.1020, dated 17.06.1954, wherein the name of respondent
No.1/plaintiff No.1 father was reflecting as Sudarshanam which fact is
stated by the Head Master of the School. The suit is filed by the
respondent No.1/plaintiff No.1 for partition after 23 years i.e., after the
death of K.Padmaiah. Counsel to substantiate his contention, has
relied on the following decisions in the cases of (1) Chakicherla
Audilakshmamma Vs. Atmakuru Ramarao & Others 1 , (2) Parkash
Chand & Others Vs. Hans Raj & another 2 , (3) Om Prakash (Dead)
through L.Rs Vs. Shanti Devi & others 3, (4) BS Naoaraja Rao Vs. MK
Krishna Rao 4 , 5) M.Vanaja Vs. M.Sarla Devi (Dead) 5 , (6) Pentakota
Satyanarayana & Others Vs. Pentakota Seetharatnam & Others 6 ,
(7) Nilima Mukherjee Vs. Kanta Bhusan Ghosh 7, (8) Rahasa Pandiani
(Dead) LRs & Others Vs. Gokulananda Panda & Others 8 ,
(9) Madhusudan Das Vs. Smt.Narayani Bai & Others 9 , (10) L. Debi
Prasad (Dead) Vs. Smt.Tribeni Devi & Others 10, (11) A.Raghavamma &
1
AIR 1973 Andhra Pradesh 149
2
AIR 1994 Himachal Pradesh 144 : 1994(1) RRR 294
3
(2015) 4 SCC 601
4
1982 LAW SUIT (KAR) 271
5
(2020) 5 SCC 307
6
AIR 2005 SC 4362
7
AIR 2001 SC 2725
8
AIR 1987 SC 962
9
AIR 1983 SC 114
10
AIR 1970 SC 1286
9/31 BRMR,J
AS.No.202_2020
Others Vs. Chenchamma & Others 11, (12) Lakshman Singh Kothani Vs.
Smt.Rupkanwar 12, (13) Kishorilal Vs. Mr.Chaltibai 13, .
7. Learned Senior Counsel for the respondents submits that the
learned Trial Court has properly rejected Exs.B6 and B7 as they are
not obtained under Right to Information (RTI) Act and the mode of
acquisition of these documents from the Government Office is not
explained, they are in the nature of secondary evidence and the
procedure to be followed is under Section 65 of the Evidence Act,
which has not been followed while marking the documents.
Respondent No.1/plaintiff No.1 is the adopted son of K.Padmaiah and
K.Kanakamma. Kanakamma does not have any right to execute
registered will in favour of appellant No.2. The evidence of plaintiff
Nos.1 to 4 coupled with Exs.A1 to A14 proves that respondent
No.1/plaintiff No.1 is the adopted child of Padmaiah and Kanakamma
and the Trial Court has discussed the evidence in detail coupled with
the documents marked thereon. PW.4 is the natural sister of
respondent No.1/plaintiff No.1, who deposed about the adoption, there
are no reasons to discard the evidence adduced by the
respondents/plaintiffs and there is no perversity or illegality in the
order passed by the Trial Judge. In support of his contention, he relied
on the decisions in the cases of (1) Nayansingh Gangaramsingh Vs.
11
AIR 1964 SC 136
12
AIR 1961 SC 1378
13
AIR 1959 SC 504
10/31 BRMR,J
AS.No.202_2020
14
Sumersingh Kewalsingh (2) Voleti Venkata Ramarao Vs.
Kesaparagada Bhaskararao and others 15, (3) L.Debi Prasad (Dead) by
LRs. Vs. Tribeni Devi and Others 16.
8. Counsel on record have filed their written arguments in support
of their contentions.
9. Heard learned counsel for the parties, perused the record.
10. Now the point for consideration is: whether the judgment
passed by learned III Additional District Judge at Karimnagar in
OS.No.225 of 2014, dated 31.10.2019 suffers from any perversity or
illegality?
11.1 Ex.A2 (higher secondary school record) goes to show that
plaintiff No.1 has studied 9th class during the period 1956-57, 10th
class during the period 1957-58, 11th class during the period 1958-59
and 12th class during the period 1959-60. The name of school
mentioned thereon is Government Multipurpose High School,
Karimnagar. Ex.A3 is the transfer certificate issued by Government
Multipurpose High School, Karimnagar vide TC.No.953 Register No.753
for classes 9 and 10.
11.2. As per Exs.A2 and A3, the date of birth of plaintiff No.1 is
21.05.1943.
14 1951 SCC 1050 15 AIR 1969 SC 1359 16 1970(1) SCC 677 11/31 BRMR,J AS.No.202_2020
11.3. Ex.A4 is the conduct certificate of plaintiff No.1 pertaining to
High School carrier dated 25.11.1960 showing that his conduct is
satisfactory. Ex.A5 is the Game Certificate of plaintiff No.1 while he
was a student of 12th standard stating that he has participated in the
games. Exs.A4 and A5 are issued by Government Multipurpose High
School, Karimnagar. It is to be noted here that the Transfer Certificate
under Ex.A3 is pertaining to class 9 and class 10 and Ex.A2 is
pertaining to class 9 to class 12. Ex.A6 is the Provisional Certificate of
plaintiff No.1, dated 28.10.1983. Ex.A7 is the Memorandum of Marks
issued by Kakatiya University, dated 01.09.1984. Ex.A8 is the
Provisional Certificate issued by Kakatiya University, Warangal, dated
25.10.1984. Ex.A9 is the certificate of eligibility issued by RDO
Karimnagar, dated 17.06.1961. Ex.A10 is the BC certificate issued by
Tahsildhar, Karimnagar, dated 15.06.1961.
11.4. Ex.A11 is the Secondary Grade Basic Teachers Certificate
issued by Andhra Pradesh Education Department, dated 22.06.1967,
whereunder plaintiff No.1 has undergone carpentry and book binding
course. Ex.A12 is the voter ID card of plaintiff No.1. Ex.A13 is his
Service Register. Ex.A14 is the letter issued to PW.1, dated
24.11.2015. Wherein PW.1 has sought for some information under RTI
Act pertaining to plaintiff No.1 vide RTI Application dated 18.11.2015.
Exs.A2 to A12 shows the father name of Plaintiff No.1 as K.Padmaiah.
12/31 BRMR,J
AS.No.202_2020
12. By the date of filing the plaint, the plaintiff No.1 was aged about
72 years and was a retired teacher and as per the pleadings,
K.Padmaiah died on 12.03.1991. Ex.B1 is the Death certificate of
K.Padmaiah, dated 11.04.1991, issued by the Commissioner, Municipal
Corporation, Karimnagar, which shows the death as 18.03.1991 at
House No.3-7-239, Bavilapally, karimngar. Ex.B1 goes to show that
K.Padmaiah died on 18.03.1991 but not on 12.03.1991.
13. Ex.B3 is the Transfer Certificate of defendant No.1 (Appellant
No.1 herein), dated 20.07.1984 issued by Principal, Government Junior
College Girls, Karimnagar. Her Father’s name is shown as K.Padmaiah.
Ex.B4 is the proceedings issued by the Commissioner, Municipal
Corporation, Karimnagar (mutation proceedings). Ex.B5 is the
registered will executed by Kanakamma on 16.11.1996 in favour of
defendant No.2 (appellant No.2 herein). Ex.B6 is the letter addressed
by the Head Master, Government Middle – cum – High School,
Karimnagar to the District Educational Officer, Karimnagar, dated
22.07.1959. Ex.B7 is the letter addressed by the District Education
Officer, Karimnager, dated 31.12.1959 to the Head Master, MPHS
Karimnagar. It is to be noted here that Exs.B6 and B7 copies are
marked to Mr.K.Padmaiah, Head Master, Government Middle – cum –
High School, Banswada, for information.
14. At the time of marking Exs.B6 and B7 through DW.2, plaintiff’s
counsel has raised objection for the same. The learned Trial Court
13/31 BRMR,J
AS.No.202_2020
recorded the objection as “Exs.B6 and B7 are marked subject to
objection that they are not certified copies and they do not contain
seal of the office concerned and the said objection has to be decided
during disposal of the case”.
15. Insofar as Exs.B6 and B7 the trial Court observed at Para No.14
of its judgment which reads as under:
“Admittedly Exs.B6 and B7 do not contain seal of the
office concerned. Ex.B6 contains date as 22.07.1959 on top
and under the signature of Head Master it contains the date
as 22.07.1989 and it appears like that. The Transfer
Certificate referred to in Ex.B6 which allegedly contains the
name of father of first plaintiff as Sudarshanam is not
produced. Ex.B7 is signed by District Educational Officer and
not by the District Educational Officer. Admittedly the
correction as sought to be made as requested in Ex.B6 and
as directed in Ex.B7 is not made and it is admitted by DW.2.
The authors of Exs.B6 and B7 are not examined. Therefore,
it is clear that except the self serving testimony of DW.2
there is no independent evidence to show that they were
issued by the authors mentioned in them. Hence, they are
not proved. Hence, the objection on behalf of the plaintiffs
is sustainable one and they cannot be relied upon”.
16. Learned counsel for the appellants/defendant Nos.1 and 2
submits that Exs.B6 and B7 are public documents, which are the
correspondence between the two authorities and they fall under
Section 74 of the Indian Evidence Act, further they are more than 30
14/31 BRMR,J
AS.No.202_2020
years old, they may not be proved by examining any person and the
only requirement for proof is to consider the custody of the document
from whom those documents were produced as per Section 90 of the
Indian Evidence Act.
17.1. Section 74 of The Indian Evidence Act, 1872 deals with pubic
document, sub-clause (1) says that documents forming the acts or
records of the acts, sub-clause (1)(iii) says of public officers,
legislative, judicial and executive, of any part of India or of the
common wealth or of a foreign country.
17.2. Section 90 of Indian Evidence Act is as under:
“90. Presumption as to documents thirty years old:-
Where any document, purporting or proved to be thirty years
old, is produced from any custody which the Court in the particular
case considers proper, the Court may presume that the signature
and every other part of such document, which purport to be in the
handwriting of any particular person, is in that person’s
handwriting, and, in the case of a document executed or attested,
that it was duly executed and attested by the persons by whom it
purports to be executed and attested.
Explanation – Documents are said to be in proper custody if
they are in the place in which, and under the care of the person
with whom, they would naturally be; but no custody is improper if
it is proved to have had a legitimate origin, or if the circumstances
of the particular case are such as to render such an origin
probable”.
15/31 BRMR,J
AS.No.202_2020
18.1. Ex.B6 :
GOVERNMENT OF ANDHRA PRADESH
Office of the Govt., Middle-Cum High School
Karimnagar.
No. (245) Dated: 22-7-1959
246
From
The HEAD MASTER,
Govt., Middle-Cum High School, Karimnagar.
To, The District Educational Officer,
KARIMNAGAR.
Subject: Correction of the father’s name in T.C. of
K.Neelakantam.
Ref:
Sir/Madam,
While enclosing herewith the true copy of the application submitted by
Sri.K.Padmiah, I have to state that K.Neelakantam S/o. Sri.K.Sudarshanam
ex-student of this school was admitted in this school in class VI old with
T.C.No.1020 dated 17/6/54 from the C.P.S. Karimnagar. In the said T.C. the
father’s name was entered as K.Sudarshanam, but in the admission form in
both the places of guardian and father the name of Sri.K.Padmiah was written
by the student. As such the student was issued T.C. with the name of
Sri.K.Padmiah only as father. In fact as per the T.C. issued from the C.P.S.
Karimnagar his father’s name is K.Sudarshanam.
Therefore you are requested kindly to arrange for necessary correction
in the school records of Multipurpose High School, Karimnagar.
The student under question as admitted in Multipurpose High School,
Karimnagar with this school T.C.No.118 dated 11/6/56.
Yours faithfully,
Sd/- 22-7-89
(G.R.Narsiah)
HEADMASTER.
JMR
Copy to Sri.K.Padmiah, Headmaster Middle-cum-High School,
Banswada, (guardian) camp Karimnagar for information.
16/31 BRMR,J
AS.No.202_2020
18.2. Ex.B7
OFFICE OF THE DISTRICT, EDUCATIONAL OFFICER KARIMNAGAR DIST.
No.23086 Dt. 31/12/59 23088
Sub: – CORRECTION IN THE FATHERS NAME OF K.NEELA KANTHAM EX-
STUDENT OF M.S. KARIMNAGAR IN THE T.C. NO.118. Dt.11-6-1956.
Please refer the T.C.No.118, Dt. 11-6-1956 issued from
M.S.Karimnagar the father’s name of K.Neela Kantham Ex-Student of said
School Class VI old has been mentioned K.Padmiah instead of
Sri.K.Sudershanam. You are therefore requested kindly arrange to correct
the father’s name as state above.
Sd/-
For DIST.EDUCATIONAL OFFICER
KARIMNAGAR DIST.
Waheed
To
The Headmaster M.P.H.S. Karimnagar.
Copies to:-
The Headmaster M.S.Karimnagar with reference to his letter
No.245, Dt.22-7-59, for information.
Copy to Sri K.Padmiah, H.M.Middle Cum High School,
Banswada Dist. Nizamabad. For information.
18.3. Ex.B7 copy is sent to the Head master, M.S.Karimnagar for
information which goes to show that Ex.B6 letter is signed by the Head
Master on 22.07.1959.
19.1. The factum of proper custody cannot itself be the subject-
matter of any presumption and it should be satisfactorily proved. Or an
analysis of the provisions of Sec. 90 and its interpretation judicially, we
may deduct the following propositions :
1. That the presumption applies to documents proved to be 30
or more years old:
17/31 BRMR,J
AS.No.202_2020
2. The document must come from proper custody;
3. The presumption is discretionary and in cases where a
document is exfacie suspicious, the Court may very well
refuse to make the presumption and call upon the party to
offer other proof forthwith;
4. The presumption can only be applied to documents which
bear the signature of the writer or of witnesses and the
presumption cannot be drawn in the case of unsigned or
anonymous papers; and
5. The extent of presumption relates only to the signature,
execution or attestation of a document that is to say, its
genuineness. The drawing of the presumption does not
connote the idea that the contents of the documents are
true or that they have been acted upon ;
6. The presumption applies only to original documents and not
on any copy thereof, certified or otherwise” : Chakicherla
Audilakshmamma case1 at Para No.7.
19.2. Whenever a document purporting or proved to be thirty years
old is produced from a proper custody, the Court may either to
dispense with proof of the execution of the document or call for further
proof in favour of the document. The discretion is left to the Court to
raise or not to raise presumption in respect of a document depending
upon the circumstances of each case but this discretion must be
exercised judicially and not arbitrarily. The exercise of discretion
should not only be in consonance with law and justice but also with
great caution because wrong exercise of the discretion under this
provision is likely to strengthen the hands of forger. In many cases, it
18/31 BRMR,J
AS.No.202_2020will be most dangerous to draw presumption that the document is
genuine merely because it is thirty years old according to the recitals
in the document and also is produced from proper custody. Whether a
document is produced from proper custody or not is a matter of
judicial satisfaction and it ought to be founded on the evidence on
record. The factum of proper custody cannot itself be a subject matter
of any presumption and it should be satisfactorily proved :
Prakashchand’s case2 at Para No.12.
19.3. Om Prakash case3 is not applicable to the case on hand in view
of the fact that the appellant/plaintiff therein did not make any
attempt to prove the execution of the gift deed without the aid of
Section 90 of the Indian Evidence Act, 1872. As none of the attesting
witnesses were examined in the proceedings as required by Section 68
of Indian Evidence Act, 1872.
19.4. There can be no dispute about this proposition of law. But it is
also necessary to bear in mind that S.90 of the Evidence Act is
incorporated in the Statute for the obvious reason that it would be
difficult to adduce evidence as time passes by. In due course of time,
the witnesses and the attestors may die or became unable to give their
evidence. It is in order to get over this difficulty that S.90 of the
evidence Act is incorporated in the said act. Hence, on the same
reason, it may be proper to hold that it would not be possible to
adduce evidence of the persons concerned in the case of an ancient
19/31 BRMR,J
AS.No.202_2020document to prove the contents and that the circumstances
probabilising the contents brought on record would be sufficient to
prove the contents and the fact that it was acted upon. (Vide : Banga
Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhuri 17 which is
followed in BS Naoaraja Rao4.
20. Applying the above propositions to the present case, have to
examine whether the Trial Court was right in rejecting Exs.B6 and B7.
The trial Court observed in the order that the author of Exs.B6 and B7
are not examined therefore, it is clear that except the self serving
testimony of DW.2, there is no independent evidence to show that they
were issued by the authorities mentioned in them. Hence, they are not
proved. The trial Court has answered that Exs.B6 and B7 do not
contain the seal of the office concerned, but failed to answer the other
objection of plaintiff’s counsel in respect of certified copies.
21.1. The appellants/defendants have taken a specific defense in the
written statement that ‘unfortunately the name of K.Padmaiah was
entered into the school records of the plaintiff No.1 and later on
coming to know about the same, late K.Padmaiah wrote a letter to the
then Head Master, Government Middle – cum – High School,
Karimnagar, to correct the father name of plaintiff in the school
records’.
17
(1917) ILR (44) Cal 186
20/31 BRMR,J
AS.No.202_2020
21.2. Ex.B6 is the letter addressed by the Head Master, Government
Middle – cum – High School, Karimnagar, to the District Educational
Officer, Karimnagar, dated 22.07.1959 which clearly specifies that
K.Neelakantam (plaintiff No.1/respondent No.1 herein)
S/o.K.Sudharshanam ex-student of the school was admitted in this
school in Class-VI with old TC.No.1020, dated 17.06.1954 from CPS
Karimnagar. In the said TC, father’s name was entered as
K.Sudharshanam and requested to arrange for necessary corrections.
Copy is marked to K.Padmaiah, the Head Master, Government Middle –
cum – High School, Banswada, for information.
21.3. Ex.B7 is issued by the office of the District Education Officer,
Karimnagar District, dated 13.12.1959 to the Head Master, MPHS
Karimnagar. Ex.B7 is pertaining to correction of plaintiff No.1’s
father’s name as K.Sudharshanam instead of K.Padmaiah as per
T.C.118, dated 11.06.1956. The said copy is also marked to
K.Padmaiah for information. Though there are no seals on Exs.B6 and
B7 but the numbers are mentioned therein which are issued by the
Government Officials and they fall under the Public Officers which
documents are forming the acts of records of a public document.
21.4. Exs.B6 and B7 are produced by DW.2 and this Court is of the
view that the said documents are in the proper custody and under the
care of the person they would naturally be and it is proved to have a
legitimate origin. The Court may presume that the signature and every
21/31 BRMR,J
AS.No.202_2020
other part of such document which purports to be the handwriting of
any particular person is in that persons handwriting. The learned trial
Court ought to have considered Exs.B6 and B7 but has gone to an
extent of saying that they are not proved and rejected them in toto. As
stated supra, Exs.B6 and B7 copies are marked to K.Padmaiah for
information which documents were in proper custody of the appellants
and they were produced before the Court and the observations of the
trial Court in respect of Exs.B6 and B7 is not in accordance with law
and it is not necessary to examine the author of Exs.B6 and B7. This
Court is of the view that Exs.B6 and B7 falls under public documents
and they are more than 30 years old, they fall under the proposition
supra.
22. It is the case of plaintiff No.1 (respondent No.1 herein) in the
plaint is that his natural father by name K.Sudharshanam put him in
the hands of late K.Padmaiah and his wife K.Kanakamma. No adoption
deed was executed at that time and there is authentic proof of the fact
of adoption of plaintiff No.1 by late K.Padmaiah.
23.1. M.Vanaja’s case5 and Pentakota Satyanarayana’s case6 are
not applicable to the case on hand in view of the fact that plaintiff No.1
was adopted when he was 4 years old i.e., prior to the 1956 Act.
23.2. Nilima Mukherjee’s case7 is also not applicable to the case on
hand as she did not enter the witness box to give evidence but on her
22/31 BRMR,J
AS.No.202_2020
behalf her son PW.1 was examined and no document for adoption was
produced before the Court. The facts are distinguishable.
23.3. When the plaintiff relied on oral evidence in support of the
claim that he was adopted by the adoptive father in accordance with
the Hindu rites, and it is not supported by any registered document to
establish that such an adoption had really and as a matter of fact
taken place the Court has to act with a great deal of caution and
circumspection. Be it realized that setting up a spurious adoption is
not less frequent than concocting a spurious will, and equally, if not
more difficult to unmask. And the Court has to be extremely alert and
vigilant to guard against being ensnared by schemers who indulge in
unscrupulous practices out of their lust for property. If there are any
suspicious circumstances, just as the propounder of the will is obliged
to dispel the cloud of suspicion, the burden is on one who claims to
have been adopted to dispel the same beyond reasonable doubt.
In the case of an adoption which is not supported by a registered
document or any other evidence of a clinching nature if there exist
suspicious circumstances, the same must be explained to the
satisfaction of the conscience of the Court by the party contending that
there was such an adoption. Such is the position as an adoption would
divert the normal and natural course of succession vide Rahasa
Pandiani’s case8 (Para No.4).
23/31 BRMR,J
AS.No.202_2020
23.4. A person who seeks to displace the natural succession to
property by alleging an adoption must discharge the burden that lies
upon him by proof of the factum of adoption and its validity :
A.Raghavamma & Others Vs. Chenchamma & Others, AIR 1964 SC
136. The evidence in proof of the adoption should be free from all
suspicion of fraud and so consistent and probable as to give no
occasion for doubting its truth. Nonetheless the fact of adoption must
be proved in the same way as any other fact : Kishorilal Vs.
Mr.Chaltibai, AIR 1956 SC 504 which is followed in Madhusudan Das’s
case9.
23.5. In the case of all ancient transactions, it is but natural that
positive oral evidence will be lacking. Passage of time gradually wipes
out such evidence. Human affairs often have to be judged on the
basis of probabilities. Rendering of justice will become impossible if a
particular mode of proof is insisted upon under all circumstances. In
judging whether and adoption pleaded has been satisfactorily proved
or not, we have to bear in mind the lapse of time between the date of
the alleged adoption and the date on which the concerned party is
required to adduce proof. In the case of an adoption said to have
taken place years before the same is questioned, the most important
evidence is likely to be that the alleged adoptive father held out the
person claiming to have been adopted as his son; the latter treated the
former as his father and their relations and friends treated them as
24/31 BRMR,J
AS.No.202_2020father and son. There is no predetermined way of proving any fact. A
fact is said to have been proved where after considering the matters
before it, the Court either believes it to exist or considers its existence
so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists : L.Devi
Prasad’s case10 (Para No.10).
23.6. It is well settled that a person who seeks to displace the
natural succession to property by alleging an adoption must discharge
the burden that lies upon him by proof of the factum of adoption and
its validity : A.Ragavamma’s case11 (Para No.14).
23.7. The ceremony of giving and taking which is very essential for
the validity of an adoption had not taken place in this case and that
the plaintiff was in fact never adopted by the defendant : Lakshman
Singh’s case12 (Para No.11).
23.8. The performance of the marriage itself does not prove the
adoption which is otherwise disproved and as a circumstance
supporting the inference of adoption set up by the appellant it is
holding neutral : Kishorilal’s case13 (Para No.19).
24.1. What the Hindu law requires is the giving and taking of the boy
“in adoption” and nothing more : Nayansingh Gangaramsingh’s case14
(Para No.4).
25/31 BRMR,J
AS.No.202_2020
24.2. The law on this point is correctly stated in Mulla’s Hindu Law,
13th Ed., art. 512 page 519:-
“But when there is a lapse of 55 years between the
adoption and its be questioned, every allowance for the
absence of evidence to prove such fact must be favourably
entertained. 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 : Voleti
Venkata Ramarao’s case15.
24.3. There is no doubt that the burden of proving satisfactorily that
he was given by his natural father and received by Gopal Das as his
adoptive son is on Shyam Behari Lal. But as observed by the Judicial
Committee of the Privy Council in Rajendrao Nath Holdar v. Jogendro
Nath Banerjee and Others (14. Moors Indian Appeals P.67); that
although the person who pleads that he had been adopted is bound to
prove his title as adopted son.
In the case of all ancient transactions, it is but natural that
positive oral evidence will be lacking. Passage of time gradually wipes
out such evidence. Human affairs often have to be judged on the basis
of probabilities. Rendering of justice will become impossible if a
particular mode of proof is insisted upon under all circumstances. In
judging whether an adoption pleaded has been satisfactorily proved or
26/31 BRMR,J
AS.No.202_2020
not, we have to bear in mind the lapse of time between the date of the
alleged adoption and the date on which the concerned party is required
to adduce proof. In the case of an adoption said to have taken place
years before the same is questioned, the most important evidence is
likely to be that the alleged adoptive father held out the person
claiming to have been adopted as his son; the latter treated the former
as his father and their relations and friends treated them as father and
son. There is no predetermined way of proving any fact. A fact is said
to have been proved where after considering the matters before it, the
Court either believes it to exist or considers its existence so probable
that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists. Hence if after taking an
overall view of the evidence adduced in the case, we are satisfied that
the adoption pleaded is true, we must necessarily proceed on the
basis, in the absence of any evidence to the contrary, that it is a valid
adoption as well : Debi Prasad’s case16 (Para Nos.9 & 10).
25. Applying the above propositions to the present case, have to
examine whether the learned Trial Court has properly appreciated the
evidence on record.
26.1. The evidence of PW.1 (plaintiff No.3) is the replica of the plaint
averments. In his cross examination he stated that his father has not
filed any suit for partition during the life time of late K.Padmaiah and
K.Kanakamma and he do not know whether K.Padmaiah during his life
27/31 BRMR,J
AS.No.202_2020
time in 1959 filed application before the Head Master concerned for
correction of the name of the plaintiff No.1’s father from Padmaiah to
Sudharshanam and whether it was ordered to be corrected as per the
letter of the District Education Officer and he admitted that Padmaiah
died on 18.03.1991 and his father was alive when defendant No.2 filed
his written statement along with documents. PW.1 further stated in his
cross-examination that he was aware of the documents filed by the
defendants about the correction of the name of plaintiff No.1’s father
in the school records. A question is put to PW.1 that appellant
No.1/defendant No.1 was adopted by Padmaiah and Kanakamma and
she is the surviving legal heir. The answer given by PW.1 is that his
father is also adopted along with her.
26.2. PW2 is the wife of deceased plaintiff No.1, her evidence is that
after the marriage she lived with her husband in the house of
Padmaiah and that her first and second sons were born in the house of
Padmaiah and they have also performed cradle ceremony, her husband
Nilakantam has performed funeral and karma of late Padmaiah and
subsequently, plaintiff No.1 constructed a house at Kotirampur locality
at Karimnagar town and they started residing there at. In her cross
examination she has stated that her husband was taken adoption in
the first instance and later on defendant No.1 was adopted.
26.3. The evidence of PW.3 is to the extent that himself and plaintiff
No.1 have worked in Educational Department and himself and other
28/31 BRMR,J
AS.No.202_2020
co-teachers know that the plaintiff No.1 is the adopted son of
Padmaiah and that in all the school records the name of the Padmaiah
was recorded as the father of Nilakantam. In his cross-examination he
denied the suggestion that Padmaiah has adopted only appellant
No.1/D1 and not any other person, witness adds that Padmaiah has
adopted Nilakantam first. He also denied the suggestion that the
District Educational Officer on the application of Padmaiah ordered
correction of the School records of Nilakantam stating that there was
mistake in the same regarding the name of his father as Padmaiah.
26.4. PW.4 is the own sister of plaintiff No.1, she deposed that
Padmaiah and Kanakamma had no issues thereby they adopted his
brother (plaintiff No.1/respondent No.1 herein) when he was four
years old. Plaintiff No.1 was given in adoption to K.Padmaiah and later
he admitted the plaintiff No.1 at primary school and recorded his name
as the father of Nilakantam. Deceased Padmaiah got Nilakantam
educated and performed his marriage, she and another relatives have
attended the same and Padmaiah has performed the cradle ceremonies
of first and second son of plaintiff No.1 and that plaintiff No.1 has
performed the funerals and karma of late Padmaiah. All the relatives
treated the deceased plaintiff No.1 as the adopted son of K.Padmaiah.
In her cross examination she stated that plaintiff No.1 has not filed any
suit against Padmaiah and Kanakamma during their life time claiming
that he was the adopted son and that she do not know whether
29/31 BRMR,J
AS.No.202_2020
Padmaiah during his life time in 1959 filed application before the Head
Master concerned for correction of the name of the father of the
plaintiff No.1 in the records from Padmaiah to Sudharshanam and
whether it was ordered to be corrected as per the letter of the District
Educational Officer and that she do not know whether appellant
No.1/defendant No.1 is brought up in the house of Padmaiah and
Kanakamma and that her marriage was performed.
27.1. The evidence of DW.1/appellant No.1 herein is the replica of the
written statement. In her cross-examination, she admitted that
K.Nilakantam/plaintiff No.1/respondent No.1 herein (since deceased is
the son of Sudarshanam). She denied the suggestion that Padmaiah
has performed the marriage of plaintiff No.1 and got him educated.
DW.1 has further stated in her cross-examination that plaintiff No.1 is
not adopted at any point of time by Padmaiah and his wife. She
denied the suggestion that plaintiff No.1 has performed the last rites of
Padmaiah.
27.2. The evidence of DW.2 is in the lines of DW.1. In his cross-
examination he admitted that Padmaiah name is shown as father of
plaintiff No.1 in school records, college records and office records and
correction is not carried out as Sudershanam from Padmaiah in respect
of father’s name of plaintiff No.1 as per Exs.B6 and B7.
28. On perusal of Ex.B5, it is mentioned therein that defendant No.1
(appellant No.1 herein) is the adopted daughter. No where in Ex.B5 it
30/31 BRMR,J
AS.No.202_2020
is stated that plaintiff No.1 is the adopted son of K.Padmaiah and that
of the executant of the document.
29. The burden is on the plaintiffs to prove that the plaintiff No.1 is
the adopted son of K.Padmaiah.
30. The age of PW.4 is shown as 78 years by the date of filing the
affidavit i.e., 11.06.2019.
31. It is the case of the plaintiff No.1 that he was 4 years old at the
time of the alleged adoption and that PW.4 might have been 6 years
old, moreover, she has not deposed about the ceremonies that the
natural parents of the plaintiff No.1 put the child in the hands of
K.Padmaiah and his wife Kanakamma. Except the evidence of PW.4,
there is no other evidence placed by the plaintiffs/respondents herein
to show that plaintiff No.1 was the adopted son of late Padmaiah. The
evidence of PW.4 is not much helpful to the case of the plaintiffs in
view of the fact that she has not deposed about the giving and taking
of the child (plaintiff No.1).
32. It is the further case of the plaintiff No.1 in the plaint that
K.Padmaiah has admitted him in Government Primary School,
Karimnagar when he was aged about 5 years and thereafter in
Government Middle School, Karimnagar. Plaintiffs have not filed any
record to show that the father’s name of plaintiff No.1 is Padmaiah at
the time of his joining in Government Primary School at Gunj,
31/31 BRMR,J
AS.No.202_2020
Karimnagar or in Government Middle School, Karimnagar. Exs.A2 to
A5 are High School Certificates.
33.1. It is not the case of the plaintiff No.1 in the plaint that after the
marriage he resided with Padmaiah along with his wife and that his
two children were born and that the plaintiff No.1 has performed the
ceremony of late Padmaiah. There is no pleading with regard to the
same but PW.2 has gone to an extent of deposing that after the
marriage with her husband she resided in the house of Padmaiah and
that she gave birth to her two children. PW.4 has also deposed about
the same. The evidence of PW.2 and PW.4 are beyond the pleadings in
respect of the above evidence.
33.2. Plaintiffs have withheld the best documents with them (i.e.,
Primary School and Middle School Certificates) and they only relied on
Exs.A2 to A12. The findings of the trial Court that plaintiff No.1 is the
adopted son of K.Padmaiah and K.Kanakamma is not in proper
prospective and failed to analyse the evidence led by the parties.
There is no explanation from the plaintiff No.1 what made him to file
the suit for partition at the age of 75 years nor he made any efforts to
file the same during the life time of K.Padmaiah and K.Kanakamma.
As stated supra, by the date of filing written statement by the
defendants they also filed the documents (i.e., Exs.B6 and B7)
showing that during the life time of K.Padmaiah he made an application
32/31 BRMR,J
AS.No.202_2020
to the concerned authorities for change of name of the plaintiff’s No.1
father’s name from Padmaiah to Sudarshanam.
34. There is no positive evidence led by the plaintiffs to prove that
plaintiff No.1/respondent No.1 herein was adopted by late K.Padmaiah.
Though it is averred in the plaint that natural father of plaintiff No.1 by
name K.Sudarshanam put his son in the hands of K.Padmaiah and his
wife K.Kanakamma which fact is not proved by the plaintiffs through
proper evidence.
35. The learned trial Court wrongly appreciated the evidence on
record. Exs.B6 and B7 goes to the root of the matter which clearly
speaks that the father’s name of plaintiff No.1 is Sudarshanam in the
earlier school records. Plaintiffs have failed to prove the adoption.
36. Since the adoption itself is not proved, the question of partition
of the suit house into two equal shares and for allotment of one such
share to the plaintiff Nos.2 to 5/respondent Nos.2 to 5 herein is
perverse and is not in accordance with law. The learned trial Court has
not properly appreciated the evidence on record coupled with the
exhibits marked thereon. This Court is of the view that the findings of
the trial Court required to be interfered with in view of the reasons
stated supra.
33/31 BRMR,J
AS.No.202_2020
37. In the result, appeal is allowed, the judgment and decree passed
by the learned III Additional District Judge at Karimnagar in
O.S.No.225 of 2014, dated 31.10.2019 is set aside. The parties shall
bear their own costs.
Consequently, Miscellaneous applications if any, are closed.
_________________________
B.R.MADHUSUDHAN RAO, J
13th June, 2025.
PLV