JUDGMENT: In 1965, Myden Saheb of Atkuru Village in Gannavaram 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 Court of District Munsif, Nuzvid, for an amount of about Rs.355/- including costs and interest. The decree holder filed E.P.No.29 of 1967. Judgment Debtor's agricultural wetland admeasuring Acs.1.78 was brought to sale. In the Court auction, Anne Seetharamaiah of the village purchased the same for Rs.5,900/-. The auction purchaser is adopted father of Anne Sai Bapuji, who filed O.S.No.72 of 19841 on the file of the Court of the Subordinate Judge, Gudivada, for possession, future profits with interest at six per cent per annum and for payment of Rs.4,500/- with interest six per cent per annum till realization. The suit was decreed, aggrieved by which, defendant Atluri Brahmanandam filed present appeal. For the sake of convenience, parties are referred to by their status in O.S.No.72 of 1984. 2. The case of the plaintiff, Anne Sai Bapuji is that after Seetharamaiah purchased property in the Court auction on 26.04.1968, Brahmanandam filed various applications in E.P.No.29 of 1967 and prevented delivery of possession. Pending these proceedings, the Court Amin delivered possession to Seetharamaiah on 10.07.1974. However, it was alleged that Brahmanandam, taking advantage of pendency of miscellaneous appeal in High Court, trespassed into suit schedule property in January, 1975, and obtained wrongful possession. Anne Sai Bapuji is adopted son of Seetharamaiah, who died intestate on 07.08.1981, as a result of which, all his properties devolved on Anne Sai Bapuji. Therefore, he is entitled for recovery of possession. 3. The defendant opposed the suit. He denied that Anne Sai Bapuji is adopted son of Seetharamaiah. Though he admitted the decree in S.C.No.44 of 1965 and subsequent proceedings, he denied delivery of possession on 10.07.1974 by Court Amin. He also alleged that for recovery of sum of Rs.300/-, selling property worth about Rs.9,000/- is inequitable and that the sale is liable to be set aside. He also denied the allegations of trespass and asserted that all through the proceedings from 1965 it is defendant who is in possession of the property. He challenged the adoption deed set up by the plaintiff, Anne Sai Bapuji. 4. The trial Court framed the following issues for trial. 1. Whether the plaintiff is the adopted son of late Anne Seetharamaiah? 2. He challenged the adoption deed set up by the plaintiff, Anne Sai Bapuji. 4. The trial Court framed the following issues for trial. 1. Whether the plaintiff is the adopted son of late Anne Seetharamaiah? 2. Whether plaintiff is entitled to file this suit? 3. Whether late Seetharamaiah was put in possession of schedule land on 10.07.1974 by Amin by the Court and whether he was in possession and enjoyment till January, 1975? 4. Whether late Seetharamaiah agreed to reconvey the schedule property to the defendant as contended in para 11 of the written statement? 5. Whether the plaintiff is entitled to any damages, and if so, to what amount? 6. Whether the plaintiff is entitled to recovery of possession of schedule land? 7. Whether the court fee paid is correct? 8. Whether the relief relating to possession is not properly valued? 9. To what relief? 5. Evidence was let in by rival parties. P.Ws.1 to 4 and Exs.A1 to A9 for plaintiff; and D.Ws.1 to 5 and Exs.B1 to B5 as well as Ex.X1 and X2 were marked for other side. Ex.A8 is the registered adoption deed, dated 27.04.1966. Exs.A1 to A4 are the copies of sale certificate in E.P.No.29 of 1967, delivery warrant, delivery receipt and report of Amin in that order. On considering oral and documentary evidence, learned trial Court held that Anne Sai Bapuji is adopted son of late Seetharamaiah and therefore, he is entitled to file a suit. The trial Court also found that Seethramaiah was put in possession by Amin on 10.07.1974 and that plaintiff is entitled to recover possession of property. The plea of defendants that Seetharamaiah agreed to reconvey the property was rejected. 6. Learned Counsel for appellant/defendant made submissions challenging findings of trial Court. These submissions can be considered under two headings touching upon validity of adoption of Anne Sai Bapuji by Seetharamaiah under Ex.A.8 adoption deed and correctness of plea of delivering possession to Seetharamaiah by Court, who was auction purchaser in E.P.No.29 of 1967 in S.C.No.44 of 1965 on the file of the Court of District Munsif, Nuzivid, which were marked as Exs.A.1 to A.4. Whether Court delivered possession to Seetharamaiah 7. Admitted factual position is as follows. Shaik Myden Saheb filed small cause suit, S.C.No.44 of 1965, for recovery of money and the same was decreed. Whether Court delivered possession to Seetharamaiah 7. Admitted factual position is as follows. Shaik Myden Saheb filed small cause suit, S.C.No.44 of 1965, for recovery of money and the same was decreed. He filed E.P.No.29 of 1967 and brought land of Judgment debtor to sale. Adopted father of plaintiff became successful auction purchaser by offering Rs.5,900/-. Sale was confirmed in his favour under Ex.A.1. After enquiry, application of Atluri Brahmanandam being E.A.No.112 of 1969 to set aside sale was dismissed on 18.8.1970. Thereafter Seetharamaiah filed E.A.No.121 of 1971 for delivery of possession. Brahmanandam filed appeal against order in E.A.No.112 of 1969 on the file of Subordinate Court, which was dismissed for default on 02.11.1972. Subsequently it was restored on 13.8.1973 by imposing costs. Costs were not paid and restoration application stood dismissed. Against the said order, A.A.O.No.529 of 1972 was filed before this Court and the same was dismissed vide Ex.A.5, dated 15.2.1977. In the meanwhile possession was delivered to auction purchaser by Court Amin on 10.7.1974. Delivery receipt, Ex.A.3, and report of Court Amin, Ex.A.4, were marked to prove the same. 8. Evidence of P.Ws.1, 3 and 4 and Exs.A.1 to A.5 would belie contention of Brahmanandam that possession was not delivered to Seetharamaiah and that he continued to be in possession. A perusal of this evidence does not leave any such doubt. Indeed evidence on record clinchingly proves that Court Amin delivered possession to Seetharamaiah on 10.7.1974 under Ex.A.3 delivery receipt and Ex.A.4 Amin's delivery report. Though a strenuous attempt was made by learned Counsel for appellant, this Court is not inclined to accept the submission. There are no strong reasons to take a different view departing from that of trial Court. Therefore the point regarding delivery of possession is accordingly held against appellant/defendant and in favour of respondent/plaintiff. Validity of adoption 9. Learned Counsel for appellant submits that by the date of adoption i.e., 27.4.1966, plaintiff was admittedly aged 18 years and therefore even if adoption deed is registered, unless and until plaintiff pleads and proves that there is a custom applicable to Seetharamaiah's family to adopt a child above 15 years of age as per Section 10(iv) of Hindu Adoptions and Maintenance Act, 1956, (the Act, for brevity), presumption as to validity under Section 16 of the Act does not operate in favour of plaintiff. 10. 10. Learned counsel for appellant placed reliance on Rama Rao v Raja of Pittapur, AIR 1918 PC 81, Bai Sakar v Ismail Gafoor, AIR 1937 Bom. 65, Ujagar Singh v Mst.Jeo, AIR 1959 SC 1041 , Hanumantha Rao v Hanumayya, 1964 (1) An.WR 156, Dhanraj v Smt Suraj Bai, (1975) 2 SCC 251 = AIR 1975 SC 1103 , State of A.P. v M. Pullam Raju, 1980 (1) APLJ 356 (HC), P. Peddiraju v P. Viswanadharaju 1990 (1) ALT 17 and Mahalingam v Kannayyan, AIR 1990 Mad. 333 . 11. Hindu Adoption is now governed by Parliamentary enactment of 1956. The effect of custom and usage are not totally excluded, although Section 4 of the Act gives overriding effect and declares that any custom or usage insofar as it is inconsistent with any of the provisions of the Act shall cease to apply to Hindus. Every plea of adoption has to be proved by person who relies on such adoption, but where the adoption is evidenced by a registered document (adoption deed) purporting to record an adoption, the Court shall have to presume that the adoption is made in compliance with the provisions of the Act. The presumption, however, is rebuttable and burden will shift to challenger. Here Sections 10 and 16 of the Act may be extracted for ready reference. 10. Persons who may be adopted:- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. 16. Presumption as to registered documents relating to adoption:- Whenever any document registered under any law for the time being in force is produced before any 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 disproved. 12. 12. Section 10 of the Act deals with qualifications of persons, who may be adopted. Inter alia it provides that a person who has not completed the age of fifteen years alone can be adopted. This rule adumbrated in Section 10(iv) of the Act has an exception. If there is a custom or usage applicable to the parties permitting persons who have completed the age of fifteen years being taken in adoption, Section 10(iv) of the Act does not disqualify adoption of a person above the age of fifteen years. Section 16 of the Act contains a presumption. When a registered document is produced purporting to record an adoption made, the Court shall presume that the adoption is made in compliance with the provisions of the Act. Giving literal meaning to Section 16 of the Act, one can always argue that even when Section 10(iv) of the Act applies, if adoption is evidenced by registered document, Section 10(iv) of the Act does not bar adoption of a person who has completed the age of fifteen years. This is one view which is possible. 13. Madras High Court, however, took contra view holding that when the person adopted is over fifteen years, the same can come under exception in Section 16 of the Act only when the custom or usage applicable to parties permitting such adoption is proved. In Mahalingam (supra), Madras High Court held as under. The simple reason is, with regard to an exception, there could not be a presumption, legal or otherwise. Exception is a departure from the normal and general requirements. An exception takes the case from the purview of general requirements. An exception must be proved and it cannot be presumed. When an exception is engrafted in the main part of the provision to the effect that on satisfaction of certain conditions, the general requirements need not be invoked, the onus in regard to such exceptional conditions is on the person who pleads them. An exception must be strictly construed. The presumption under Section 16 does not cover the case of an exception to the general requirements of the provisions of the Act. That is how, Section 16 must be construed. Otherwise, it will lead to anomalous results. Even if there is no satisfaction of the general requirement regarding age, Court will be called upon to presume the exception. The presumption under Section 16 does not cover the case of an exception to the general requirements of the provisions of the Act. That is how, Section 16 must be construed. Otherwise, it will lead to anomalous results. Even if there is no satisfaction of the general requirement regarding age, Court will be called upon to presume the exception. This could not be the intendment of the legal presumption under Section 16. There must be plea and proof of the exception under custom or usage spoken to in clause (iv) of Section 10. Unless that is made out, the exception cannot rule. There could not be a presumption of such custom or usage. Even by a bare reading of Section 16, it is not possible to spell out a theory that it dispenses with pleading and proof in the case of an exception under Section 10(iv) of the Act. 14. Whether Section 10 of the Act should be read with into Section 16 of the Act even in the absence of any such indication by the Parliament is itself a separate question which needs to be decided in appropriate case. The respondent/plaintiff does not appear even after service of notice and even though the name of counsel is appearing. Therefore, without expressing any opinion on this question, for the purpose of this case, it would be suffice to consider the submission from another point of view. 15. The appellant/defendant did not take specific plea as is urged before this Court now though adoption was denied in the written statement. There was no specific issue on the point. Defendant had an opportunity to seek necessary steps for resuming trial of such issue with reference to Section 10(iv) read with Section 16 of the Act, but he did not do so. This is a strong circumstance, which would lead to an inference that the defendant accepted adoption. He took a plea that Seetharamaiah agreed to execute a reconveyance deed. He also took the plea that the sale of valuable property for realising small sum of Rs.300/- is inequitable. There was an issue framed on the first aspect of the matter, which was decided against defendant and there was no issue at all on the second aspect of the matter. He also took the plea that the sale of valuable property for realising small sum of Rs.300/- is inequitable. There was an issue framed on the first aspect of the matter, which was decided against defendant and there was no issue at all on the second aspect of the matter. Be that as it is, in addition to Ex.A.8, Adoption Deed, which itself speaks of such a custom among members of Kamma caste to which plaintiff belongs, P.W.1 and P.W.2 in an unimpeachable manner deposed about adoption. P.W.1 while stating that Seetharamaiah adopted him also stated that he inherited all the properties of Seetharamaiah after the latter's death on 07.08.1981. Ex.A.8, Adoption Deed, was signed by Seetharamaiah and natural father and mother of plaintiff, Sai Bapuji. A reading of Ex.A.8, Adoption Deed, would show that the wife of Seetharamaiah died on 21.12.1959 issueless. It has come in the evidence that plaintiff is grandson of Seetharamaiah's brother, Venkata krishnaiah. The Adoption Deed also shows that the father and mother of plaintiff handed over plaintiff to Seetharamaiah in accordance with the custom prevalent among Kamma community. The evidence of P.W.1 is corroborated by P.W.2 who is none other than natural father of P.W.1. 16. Ex.A.8 and evidence of P.W.1 and P.W.2 as well as the evidence of P.W.3 and P.W.4 would lead to the conclusion that plaintiff is adopted grandson of Seetharamaiah's brother Venkata Krishnaiah. It also reveals that there is a custom among Khamma to adopt even person of age above fifteen years, and that the natural father and mother of plaintiff as well as adopted father executed Ex.A.8, adoption deed. From this, can a custom among Kammas as is referred to Section 10(iv) of the Act can be inferred or not? 17. In Gokal Chand v Parvin Kumari10, Supreme Court laid down general principles, to be kept in view, in dealing with the question of customary law. Inter alia it is laid down that, "a custom in order to be binding must derive its force from the fact that by long usage it has obtained a force of law, but English rule that, 'a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary' should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality". 18. In Raja of Pittapur (supra), the privy council held as under. This proposition, it must be noted, does not negative the doctrine that there are members of the family entitled to maintenance in the case of an impartible zamindari. Just as the impartibility is the creature of custom, so custom may and does affirm a right to maintenance in certain members of the family. No attempt has been, as already stated, made by the plaintiff to prove any special custom in this zamindari. That by itself in the case of some claims would not be fatal. When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case. It becomes in the end truly a matter of process and pleading. (emphasis supplied) 19. In Bai Sakar (supra), Supreme Court laid down as under. The fact that a particular custom has been judicially recognized establishes that the custom is reasonable and not opposed to public policy so that it will be upheld whenever it is proved. This is the legal aspect of the custom : Moult v Halliday, (1898) 1 QB 125. But, subject to what I shall presently state, judicial recognition of a custom in another suit leaves untouched the proof of the fact that the custom is applicable to the particular parties who are before the Court. (emphasis supplied) 20. In Ujagar Singh (supra), while observing that every general custom relied on a person must be clearly proved to exist, the Supreme Court ruled that if the Court takes judicial notice of such custom under Section 57 of Indian Evidence Act, 1872, no further proof is required. Keeping this in mind, the submission of learned counsel for the appellant that the plaintiff did not plead and prove the existence of such custom is without any merit. The reasons are as follows. Keeping this in mind, the submission of learned counsel for the appellant that the plaintiff did not plead and prove the existence of such custom is without any merit. The reasons are as follows. Fistly, under Order VI Rule 13 of Code of Civil Procedure, 1908 (CPC), a party to the suit, who alleges any matter of fact which the law presumes in his favour, need not plead such presumptions of law. In case of a registered adoption deed, Section 16 of the Act contains such presumption and therefore is not incumbent on the part of the plaintiff to specifically plead any such custom. Secondly, Ex.A.8 itself specifically refers to such custom. There is no serious challenge by defendant before the trial Court either by filing additional written statement or leading evidence to show contra. Because the burden lies on him to prove that there was no custom as plaintiff can always rest his case on presumption under Section 16 of the Act. Indeed, there was no cross examination on these aspects when plaintiff's witnesses are in the witness box. Thirdly, that there is a custom among Kammas to adopt a person of the age above fifteen years, which is accepted legal position as seen from Division Bench Judgment in Hanumantha Rao (supra). 21. The factual position in the said case is as follows. Narra Pichaiah and his two sons Kotaiah and Hanumaiah constituted joint Hindu family. After death of Kotaiah, his wife Parvatalu adopted Hanumantha Rao who was admittedly more than fifteen years old at the time of adoption. The adopted son filed a suit against Hanumaiah (brother of adopted father) and others for partition of joint family properties. It was specifically alleged that Parvatalu adopted not only to herself but also for deceased husband and that there is a custom among members of Kamma caste where adoption of a boy more than fifteen years old is valid. The trial Court framed relevant issue and evidence was let in based on which it was held that existence of such custom among Kamma caste was proved. However, the suit for partition was dismissed holding that the vesting of the share of deceased adopted father in other heirs by survivorship does not get divested by adoption of Hanumantha Rao. Hanumantha Rao unsuccessfully filed appeal before this Court. However, the suit for partition was dismissed holding that the vesting of the share of deceased adopted father in other heirs by survivorship does not get divested by adoption of Hanumantha Rao. Hanumantha Rao unsuccessfully filed appeal before this Court. While dismissing the appeal, the Division Bench made the following observations regarding the custom among members of Kamma caste. Various matters were raised at the trial, which are not now in issue, the only questions before us being as to the existence of the caste custom by which boys aged more than fifteen years can be adopted, and as to the result and effect of the adoption. ... Though there was some controversy in the lower Court with regard to the factum of adoption, the parties are now agreed that if the custom is established, the adoption must be held to be true. On the question of the existence of the custom, the Subordinate Judge held it to be sufficiently proved. That there is evidence upon which this finding could be legitimately based cannot be denied and no sufficient reason has been shown for a reconsideration of the question here. It is really with regard to the rights of the adopted son under the Hindu Adoptions and Maintenance Act that the parties are at variance. On an examination of the material provisions of the Act, the lower Court held that the adoption of the plaintiff could not have the result of divesting the interest of Kotaiah that had vested in the first defendant long prior to the date of the adoption. (emphasis supplied) 22. The Judgment of this Court in Hanumantha Rao (supra) is a previous judgment and comes within ambit of Section 40 of Evidence Act, as a question of law determined by this Court is very relevant and conclusively proves that there is a custom among members of Kamma caste for adopting a person who is above fifteen years of age. Indeed Privy Council in Raja of Pittapur (supra) observed that when a custom is brought to the notice of Courts in the country, the Courts may hold that custom exists without necessary proof in each individual case. In view of this, the ratio in Mahalingam (supra) has no application to the facts of this case. Indeed Privy Council in Raja of Pittapur (supra) observed that when a custom is brought to the notice of Courts in the country, the Courts may hold that custom exists without necessary proof in each individual case. In view of this, the ratio in Mahalingam (supra) has no application to the facts of this case. When a Division Bench of this Court with reference to Kamma caste in Andhra Pradesh has ruled by accepting the finding of lower Court (in that case) that there is a custom among members of Kamma caste for adopting a person over and above fifteen years of age, again the same need not be proved in this case and on that ground presumption under Section 16 of the Act cannot be ignored. 23. Learned counsel for appellant placing reliance on Ambati Narasayya v M.Subba Rao12 submits that if the property of more value is sold in execution of a decree for a small amount, such execution is without jurisdiction. The plea at this stage cannot be accepted. As pointed out supra, though the defendant alleged in his written statement, no effort was made to get an issue framed and lead evidence thereon. Secondly, if the decree has to be set aside based on the principle herein mentioned above, and on that ground seeks declaration that the decree is not binding, the law of limitation comes in the way. The suit was filed in 1981 and after lapse of about more than twenty five years, defendant cannot be heard to contend that the execution of decree in small cause suit itself is without jurisdiction. 24 In the result, for the above reasons, the appeal fails and is accordingly dismissed. As the respondent/plaintiff did not appear, even though the name of the counsel is appearing in the list on 15.04.2008 and 17.04.2008, this Court is not inclined to make any order as to costs.