PRIVY COUNCIL

Sri Kanchumarthi Venkata Seetharama Chandra Row

              Vs.

              Kanchumarthi Raju alias Venkata Krishna Row

                         P.C.A No. 92 of 1924
              (Lords Atkinson, Shaw and Darling JJ.)

              23.06.1925

              JUDGMENT

LORD SHAW J.

1. This is an appeal from a decree and judgment of the High Court of Judicature at
Madras, dated the 18th October, 1922, reversing a decree and Judgment of the Court
of the Additional Sub ordinate Judge of Rajahmundry, dated the 29th April, 1921.

2. The appeal raises a question of fact. One Subbayya died on the 1st November,
1878, leaving two widows and with out natural issue. His first widow had been for
some time separated from him. His second widow resided with him. Some days after
his death she adopted the first respondent, a young boy as son to her husband
Subbayya. The boy was accordingly handed over by his natural father whose
household he left and he lived and grew to manhood as member of the household of
Subbayya's widow, his adoptive mother. The lapse of time between the adoption and
the date of suit was about 42 years. The challenge of the adoption is made by the
plaintiff, not only of course after the death of Subbayya, but after the death of his
senior widow, who died in 1895, and after the death of the Junior widow, the adoptive
mother, who survived as long as 1907.

3. It was not contended before the Court that no adoption was made. It was an
adoption perfectly suitable in all respects" it was acted on for the long period of years
mentioned" but the sole argument on the appeal was a challenge of any authority
having been given by Subbayya to his widow to make the adoption. The case
accordingly is restricted even on fact to this question. Were it not that the plaintiff has
obtained, on this part of the case the support of a judgment of the Subordinate Judge,
the case and the appeal might be justly characterised as not only unfounded but
audacious.

4. It is fair to the Subordinate Judge to give his conclusion on the issue of fact in the
case. He puts it thus:-

5. Sixth issue. - The point for decision is whether Ammayamma adopted 1st
Defendant as the son of Subbayya, and if so whether she was given by him the
required authority to adopt" and, given my very best and anxious consideration to the
recorded evidence, probabilities of the case and the decisions cited on both sides,
paying due attention to the facts that the adoption of 1st Defendant was celebrated
about forty-two years ago and that he was, all through and till the filing of the suit,
being treated as the adopted son of Subbayya and a member of the Kanchumarthi
family by all its members, inclusive of the Plaintiff, by a wide circle of relatives and
friends, by the tenantry of the Kalavala palli estate, by the Government and its
officials and by the outside public" and bearing in mind the presumptions that can be
properly and legitimately made in favor of his adoption from the long time that had
elapsed (about 42 years) after the adoption and from the acquiescence there in all
through this very long period of those inside and outside the family, as shown by some
of the decisions cited on either side, I come to the conclusion that Ammayamma did in
fact adopt 1st Defendant as the son of her deceased husband Subbayya on a day within
a month of the death of Subbayya."

6. Up to this point this is an admirable and correct summary. But the learned Judge
after this state's his conclusion :-

7. That she had not the authority of her husband to make the adoption and that
therefore it is not a valid adoption."

8. The singularity of this result is obvious when it is considered that the four principal
witnesses who proved the adoption also proved the authority to adopt. They knew both
the husband and wife. They saw the husband, and heard him, in his last illness, give
the authority to the wife a few days before his death, and a few days after his death
they saw the ceremony of the adoption. The learned Subordinate Judge believes them
on the latter point, but, for some reason, does not give effect to their testimony on the
former point. It is not as if there was anything singular in the giving of such an
authority. The adoption was itself in accord with what a pious Hindu would wish to be
done so that someone would remain after his death to perform the sacrificial and other
ceremonial and pious duties resting upon a child.
9. So far as the widow was concerned, her conduct had no element of usurpation in it,
but simply the element of carrying out her husband's dying wish. So far as the adopted
son was concerned, he was transferred from his natural home to his adopted home and
he has lived there all his life as a member of that household.

10. So far as the plaintiff is concerned he denied the adoption in this suit, a thing
which now stands amply proved and admitted. He did not question the authority to
adopt during the late widow's life which extended for 30 years beyond that of her
husband, and his suggestion now is that the idea of the young man's adoption being
unauthorized was put into his head as a result of a conversation with someone who is
not produced as a witness.

11. The record, however, does not stop there, because the local authorities, having
made the ordinary enquiries as to the necessary entries upon the register consequent
upon Subbayya's death, made the enquiries and took the depositions, and the second
wife was entered as guardian of the minor and adopted son - that is to say, the first
respondent. There were litigation's of various characters during the course of this long
term of years and the plaintiff acted along with the adopted son, acknowledging, in the
course of the proceedings, his right.

12. It is at the end of this long chapter that the challenge is made. Their Lordships
have considered all the documents produced and read all the evidence. They can not
understand why it should not be held to be quite conclusive, not only of the fact of
adoption, but of the authority to adopt. It stands to reason that after such a long term of
years, and the variety of transactions of open life and conduct, upon one footing alone
- namely, that the adoption was recognized as a valid act - the burden, resting
altogether apart from the law of limitation, upon any litigant who challenges the
authority of an admitted adoption, is indeed of the heaviest order. In their Lordships'
view it is not, however, necessary to invoke any doctrine of presumption in this case.
The facts, the evidence, and the documents are all one way - namely, in the direction
of establishing that the view taken by the learned Judges of the High Court, is in result
sound.

13. Their Lordships will accordingly humbly advise His Majesty that the appeal
should be refused with costs.

Appeal refused.