# Champaru. Cane Conce1n v. Sttlfe of 13ihar Dai J •

- **Citation:** [1964] 2 S.C.R. 933
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** K. SuBBA RAo, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/champaru-cane-conce1n-v-sttlfe-of-13ihar-dai-j-2861
- **Pages:** 38

## Headnote

Hindu Law-Partition-Adoption-Burden of proof and
onu• of proof-Di•tinction-S.paration-Elements necessa'71
to make it effective-Declaration and knowledge-Doctrine. of
relation back if affect vested right-Concurrent findings of fact,
if and when can be interfered with'-Oertifir,ate granted under
Art. 133-Scope and limit-Constitution of India, Art. 133 .
The appellants and the respondents trace their interest
and rights through their genealogy to one Veeranna who died
in 1906. One of his sons Pitchayya, predeceased him in 1905
and it is alleged that sometime before his death Pitchayya took
Venkayya, the son of his brother Chimpirayya, in adoption.
It is further alleged that a partition of the joint family properties.between Veeranna and his four sons took place. Venl>ayya
died in 1938 having a •on Subbarao. Chimpirayya died in
1945 having executed a will whereun<ler he gave his properties
in equal shares to Subbarao
and Kamalamma, the daughter
of.his predeceased daughter. He also directed Raghavamma,
the wife of his brother Pitchayya, to take possession of' the
entire property belonging to him, manage it and to hand over
the same to his two grand children when they attained majo-·
.rity. Chimpirayya excluded his daughter-in-law Chenchamma
from management as well as inheritance. But Raghavamma
allowed Chenchamma to take
possession of the property.
Subbarao died in 1949. In 1950, Raghavamma filed a.suit for
possession of the property impleading Chenchamma &s the first
defendant, Kamalamma as the second defendant and Runn~yya
as· the tJiird defendant.
1963
Champaru. Cane
Conce1n
v.
Sttlfe of 13ihar
Dai J •
1963
April 9,
Ju.,-.
R"l/wJ..,.,..
v.
J.Uopm
c ............
934 SUPREN.IE COURT REPORTS [1964) VOL.
Chenchamma, the first defendant and the present first
respondent, contended that Venkayya was not given in adoption
and that there was no partition as alleged by the plaintiff.
She averred that Chimpirayya died undivided from his grand·
son Subbarao and therefore, Subbarao became entitled to all
the properties of the joint' family by 1 ight of survivorship.
The trialJudge came to the conclusion that the plaintiff
had not established adoption of Venkayya
by her hasband
Pitchayya and that she aho failed to prove that Cnimpirayya
and Pitchayya were divided from each other and in the result
dismissed the suit. On appeal, the High Court upheld the
above two findings ol the trial Judge. A new plea was raised
by the appellant before the
High Court that the will executed
by Chimpirayya contained a clear intention to divide and that
this declaration constituted a severance in status enal,Jing him
to execute a will. The High Cc..urt rejected this contention
also and in the result dismis<ed the appeal.
On appeal by certificate, the appellants contended : ( l)
that the findings of the High Court on adoption as well as on
partition were vitiated by the High Court not drawing the
relevant presumptions permissible in the case of old transactions, not appreciating the great evidentiary value of public
documents, ignoring or at any rate nor giving weight to
admissions made by parties and witnesses, adopting a mechanical instead of an
intellectual approach and perspective and
above all ignoring the consistent conduct of parties "spread over
a long period, inevitably leading to the conclusion that the
adoption and the partition set up by the appellant were true.
(2) On the assumption that there was no partition by metes
and bounds, the court should have held on the basis ot the
entire evidence that there was a division in status between
C.himpirayya and Pitchayya, conferring on Chimpirayya the
right to bequeath his divided share of the family property.
•
(3) The will itself contained recitals emphasizing the fact that
he had all through been a divided member of the family and
that on the date of execution of the will he continued to
possess that character of a divided member so as to entitle
him to execute the will in respect of his share and, theref

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•
•
2 s.c.R.
SUPREME COURT REPORTS
933
and answer the question . in favour of the assessee.
The assessee will be entitled to the costs throughout.
Appeals allowed.
ADDAGADA RAGH.\VAMMA AND ANR.
"·
ADDAGADA CHENCHAMMA AND ANR.
(K. SuBBA RAo, RAGHUBAR DAYAL and
J. R. MUDHOLKAR JJ.)
Hindu Law-Partition-Adoption-Burden of proof and
onu• of proof-Di•tinction-S.paration-Elements necessa'71
to make it effective-Declaration and knowledge-Doctrine. of
relation back if affect vested right-Concurrent findings of fact,
if and when can be interfered with'-Oertifir,ate granted under
Art. 133-Scope and limit-Constitution of India, Art. 133 .
The appellants and the respondents trace their interest
and rights through their genealogy to one Veeranna who died
in 1906. One of his sons Pitchayya, predeceased him in 1905
and it is alleged that sometime before his death Pitchayya took
Venkayya, the son of his brother Chimpirayya, in adoption.
It is further alleged that a partition of the joint family properties.between Veeranna and his four sons took place. Venl>ayya
died in 1938 having a •on Subbarao. Chimpirayya died in
1945 having executed a will whereun<ler he gave his properties
in equal shares to Subbarao
and Kamalamma, the daughter
of.his predeceased daughter. He also directed Raghavamma,
the wife of his brother Pitchayya, to take possession of' the
entire property belonging to him, manage it and to hand over
the same to his two grand children when they attained majo-·
.rity. Chimpirayya excluded his daughter-in-law Chenchamma
from management as well as inheritance. But Raghavamma
allowed Chenchamma to take
possession of the property.
Subbarao died in 1949. In 1950, Raghavamma filed a.suit for
possession of the property impleading Chenchamma &s the first
defendant, Kamalamma as the second defendant and Runn~yya
as· the tJiird defendant.
1963
Champaru. Cane
Conce1n
v.
Sttlfe of 13ihar
Dai J •
1963
April 9,
Ju.,-.
R"l/wJ..,.,..
v.
J.Uopm
c ............
934 SUPREN.IE COURT REPORTS [1964) VOL.
Chenchamma, the first defendant and the present first
respondent, contended that Venkayya was not given in adoption
and that there was no partition as alleged by the plaintiff.
She averred that Chimpirayya died undivided from his grand·
son Subbarao and therefore, Subbarao became entitled to all
the properties of the joint' family by 1 ight of survivorship.
The trialJudge came to the conclusion that the plaintiff
had not established adoption of Venkayya
by her hasband
Pitchayya and that she aho failed to prove that Cnimpirayya
and Pitchayya were divided from each other and in the result
dismissed the suit. On appeal, the High Court upheld the
above two findings ol the trial Judge. A new plea was raised
by the appellant before the
High Court that the will executed
by Chimpirayya contained a clear intention to divide and that
this declaration constituted a severance in status enal,Jing him
to execute a will. The High Cc..urt rejected this contention
also and in the result dismis<ed the appeal.
On appeal by certificate, the appellants contended : ( l)
that the findings of the High Court on adoption as well as on
partition were vitiated by the High Court not drawing the
relevant presumptions permissible in the case of old transactions, not appreciating the great evidentiary value of public
documents, ignoring or at any rate nor giving weight to
admissions made by parties and witnesses, adopting a mechanical instead of an
intellectual approach and perspective and
above all ignoring the consistent conduct of parties "spread over
a long period, inevitably leading to the conclusion that the
adoption and the partition set up by the appellant were true.
(2) On the assumption that there was no partition by metes
and bounds, the court should have held on the basis ot the
entire evidence that there was a division in status between
C.himpirayya and Pitchayya, conferring on Chimpirayya the
right to bequeath his divided share of the family property.
•
(3) The will itself contained recitals emphasizing the fact that
he had all through been a divided member of the family and
that on the date of execution of the will he continued to
possess that character of a divided member so as to entitle
him to execute the will in respect of his share and, therefore,
the recitals in the will themselves constituted an unambiguous
declaration of his intention to divide and the fact that the
said manife:itation of the intention was not communicated
before his death to Subbarao or his
guardian Chenchamma
could not affect his status as a divided member.
( 4) Chenchamma, the guardian of Subbarao, was present at the time of
execntion of the will and, therefore, even if communication was
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2s.C.R.
stJ i>REME COtJR t REPORTS
935
nece.,ary for bringing about a divided status, it was made in
1963
the present case.
The respondents raised a preli1ninary objection, that the
-certificate i!Sued by the High Court did not contain any issue
relating to adoption or partition. Hence, this Court should
not allow the appellants to raise these questions. Secondly,
it was contended that since the question, whether <leclaration
. in the will constituted a partition was raised in the High Court
for the first time it should not be allowed to be raised. It
wa• further urged that on the issues of partition and adoption,
there were concurrent findings of fact by the trial Court and
the High Court and this Court should not interfere.
Held that a successful party can question the maintainability of the appeal on the ground that a certificate was
wrongly fasued by the High Court in contravention of Art. 133
of the Constitution, but ifthe certificate was good, the provisions of that Article did not confine the scope of the appeal to
the certificate.
Thi.s Court has th.e power to review the concurrent findings
of fact arrived at by the lower courts in appropriate cases.
But this Court ordinarily will not interfere with concurrent
findings of fact except in exceptional cases, where the findings
are such as "shocks the conscience of the Court or by disregard
·to the forms of
legal process or some violation of some
principles of natural justice or otherwise substantial· and gravr,
injustice has been done' '. It is not possible nor advisable to
define those circumstances. It must necessarily be left to the
discretloa of this Court having regard to the facts of a particular case.
The present case is not one of those exceptional
cases where a departure from the salutary practice adopted by
this Court is justified.
Case Law referred to.
There is an essential distinction between burden or
proof and onus of proof; burden of proof lies upon the person
who has to prove a fact and it never shifts but the onus of proof
shifts. Such a shifting of onus is a continuous process in the
evaluation of evidence. The criticism levelled against the
judgments of the lower courts, therefore, only pertain to the
domain of •ppreciation of evidence.
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. In the present case, the apnellant
ha• failed to discharge that burden.
Add'Jgada
Raghavamma
••
Addszafi'J
Chen~smmlJ
1963
Addazad•
R•ghammmc
...
AdtU.goda
Cltta.eMmma
936 SUPREME COURT, REPORTS [l964]VOL.
The burden is upon that person who sets up partition to
prove that fact. The general principle is that a Hindu. family
is presumed to be joint unless the contrary is. proved. The
finding whether there was partition or not is a finding of fact.
An interference in the concurrent findings of fact on this point
by the courts below is not j11stified.
Bhagallali Pra8ad Shah v. D1dbi RameBh11ariJuar, (1951]
S. C. R. 603, referred to.
It iJ settled law that a member of a joint Hindu family
can bring about his separation in status hy a definite and un·
equivocal and unilateral declaration of his intention to separate
himself from the family and enjoy his share in scverality.
One cannot declare or manifest his mental state in a vaccum.
1~o declare is to make known, to assert to others.
Others must
necessarily be those affected by the said declaration. Therefore,
a member of a joint Hindu family seeking to separate himlclf
from othen will have to make known his intention to the other
members of the family
from whom he seeks to separate.
A declaration to be effective should reach the per>on or persons
affected by one proccos or other api;ropriate to a given situation.
Adujalath KathU8umma v. Adujalath &tehu, l.L.R. 1950
Mad. 502, Suraj Narain v. Igbal Narain, (1912) l.L.R .. 35
All.SO (P. C.), Ramalinga Annavi v. Narayanan Annavi, (1922)
I. L. R. 45 Mad. 489 (P. C.), Sayed Kaaam v. Jorawar Sitl{lh,
(1922) J.L.R. 50 Cal. 84 (P. C.), Soundararaya,. v. Arunaclza.
lam GM.U11, (1915) I. L. R. 39 Mad. 159 (P.C.), Bal Kr;.hna v.
RamKriahna, (1931) I. L. R. All. 300 (P. C.), Babu Ramaaaray
PraMJd Choudhary v. Radhika Devi, (1935) 43 L. W. 172 (P.C.),
Kamtpalli A•ilamma v. Manmen YenketG1Wt1my, ( 1913). 33
M. L.J. 745, Rama Ayyar v. Meenafc.hi Ammal, (1930) 33
L. W. 384, Narayana Rao v. Pu,.hothama Rao, I. L. R. i938
Mad. 315 and Indira v. Sivapraaad Rao, I. L. R. 19j3 Mad.
245, discussed.
Once the declaration i• expressed and brought to . the
knowledge of the person affected, it relates back.to.lhc date.of
' .
4
•
2 S.C.R.
SUPREME COURT REPORTS
937
declaration or the expression of intention to .separate. As the
doctrine of relation back involves retroactivity, it cannot affect
vested rights. It would follow that, though the date of severance is that of manifestation of the Intention to separate, the
rights accrued to others in the joint family" property between
the said manifestation and the knowledge of it by the other
members would be saved.
Applying the above principles to the present case it must
be held that on the death of Chimpirayya'his interest devolved
on Subbarao since it has not been rstablished that Subbarao or
his guardian had knowledge of the contents of Chimpirayya's
will before Chimpirayya died.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 165 of 61.
Appeal from the judgment and decree dated
December 20,, 1955, of the former Andhra Pradesh
High Court in Appeal Suit No. 716 of 1952.
D. Narsaraju, Advocate-General for the St,ate of
Andhra Pradesh, and T. V. R. Tatachari, for the
appellants.
K. Bhimsankaram,
G. Jagapathi
Rao. and
Satyanafflyana, for the respondent No. 1.
'K. R. Ghoudhry, for the respondent No. 2.
1963. April 9. The Judgment of the Court
was delivered. by
SuBBA RAo J .-This appeal by certificate is
preferred against the Judgment and Decree of the
. High:.Court of Andhra confirming those of the
· Subordinate Judge, Bapatla, dismissing the suit filed
by the appellants for. possession of the plaint schedule
.properties. ,The following,:genealogy will be useful
JHJ
Subi• Roo I.
"
/96S
Adrlo_~•da
Roelut.f9mm•
..
Md.tad•
Clier.chJmma
s,.;6a R .. I.
938 $UPREME COURT REPORTS [lll64] VOL
in appreciating the facts and the contentions of the
parties :
Veeranna (d. 2.2.1906)
I
Atchamma
(!st wife)
Chimpirayya
(d.5-5-1945)
I
I .
I
Pitchayya
( d .1-9-100/i)
I
Seshamma
(2nd wife)
I
Raghavamma
( Plff.-Applt.)
i,
I
Daughter
I
(d. l-ll-1905)
Vcnkayya=Chcn1
chamma (Dl, R l)
j
(alleged adopted)
I
I
I
I
... l--'~------S-ub_b_a_ra_o~(d.28-7-1 !149) I
I
I
I
I
Vcnkayya
Saraswatamma
Raghavayya
\
(d.24-5-l!J38)
i
(b.28-10-1910
(alleged to have Komalamma
d. 1916)
been adopted by
(D-2/R-2)
Pitchayya)
I
Peda Punnayya
(died unmarried)
I
Isl wife
(died issueless)
I
Alivelamma
China Punnayya
(D-3, R-3)
I
I .
2nd wife
Subbamma
L.R. ofD3/R3
I
I .
Venkayamma
. '
:
•
..
. .
-.
2 s.c.11.
SUPREME COURT REPORts
939
It
will be
seen
from
the
genealogy
that
Veeranna had two wives and that Chimpirayya and
Pitchayya were his sons by the first wife and Peda
Punnayya and China Punnayya were his sons by
the second wife. Veeranna died in the year 1906
and his second son Pitchayya had predeceased him
on 1-9-1905 leaving his widow Raghavamma. It is
alleged that sometime before his death, Pitchayya
took Venkayya, the son of his brother Chimpirayya
in· adoption; and it is also alleged that in or about
the year 1895, there was a partition of the joint
family properties between Veeranna and his four
sons, Chimpirayya, Pitchayya, Peda Punnayya and
China Punnayya, Veeranna taking only 4 acres of land
and the rest of the property being divided between
the four sons by metes and bounds. Venkayya died on
May 24, 1938,
leaving behind a son Subbarao.
Chimpirayya died on May 5, 1945 having executed
a will dated January 14, 1945 whereunder he gave
his properties in equal shares to Subbarao and
Kamalamma, the daughter of his
pre-deceased
daughter
Saraswatamma;
thereunder
he
also
directed Raghavamma, the widow of his brother
Pitchayya, to take possession of the entire property
belonging to him, to manage the same, to spend the
income therefrom at her discretion and to hand over
the property to his two grandchildren after they
attained majority and if either or both of them
died before attaining majority, his or her share or
the entire property, as the case may be, would go to
Raghavamma. The point to be noticed is that his
daughter-in-law, Chenchamma was excluded from
management as well as from inheritance after the
death of Chimpirayya. But Raghavamma allowed
Chenchamma to manage the entire property and she
accordingly came into possession of the entire property
after the death of Chimpirayya.
S11 bbarao died on
July 28, 1949. Raghavamma filed a suit on October
12, 1950 in the Court of the' Subordincite Judge,
Bapatlal, for possession of the plaint scheduled
1969
Adiag•do
Raghaiamma
v.
Mda1.Ja
Chenchammo
Subba Rao J.
1963
Add.tad.
&1111>uottttna
v.
Add.gala
Chrncharmna
940 SUPREME COURT REPORTS[l964] VOL.
properties;
and to that suit, Chenchamma was
made
the first
defendant;
Kamalamma,
the
second
defendant;
and China
Punnayya, the
second
8on of Veeranna by
his second
wife,
the
third
defendant.
The plaint consisted of
A, B, C,
D, D-1 and E schedules,
which are
alleged to be the properties of Chimpirayya. Raghavamma claimed possession of A, B and C ~cheduled
properties from the lst defendant, for partition and
delivery of half share in the properties covered by
plaint-schedule D and D-1
which are alleged to
belong to her and the 3rd defendant in common and
a fourth share in the property covered by plaintschedule E which are alleged to belong to her and
the lst and 3rd defendants in common.
As Kamalamma was a minor on the date of the suit, Raghavamma claimed possession of the said properties under the
will - half in her own right in respect of Subbarao's
share, as he died before attaining majority, and the
other half in the right of Kamalamma, as by then she
had not attained majority, she was entitled to
manage her share till she attained majority.
The first defendant denied that Venkayya was
given in adoption to Pitchayya or that there was a
partition in the family of Veeranna in the manner
claimed by the plaintiff. She averred that Chimpirayya died undivided from his grandsoD" Subbarao
and, therefore, Subbarao became entitled to all the
properties of the joint family by right of survivorship. She did not admit that Chimpirayya executed
the will in a sound and disposing frame of mind. She
also did not admit the correctness of the Schedules
attached to the plaint. The second defendant filed .a
statement supporting the plaintiff. The third defendant filed a statement denying the allegations in
the plaint and disputing the correctness of the extent
ofsome of the items;in the plaint schedules. He al90
averred that some o£the items belonged to him exclu-
:sively and that Chimpirayya.had no right.tothesamc.
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2 1S.C:R..
SUPREME COURT REPORTS
9!1
On the pleadings various issues were raised and
the main issues, with which we are now concerned;
are· is8ues 1 and 2, and they are : ( 1) whether the
adoption of Venkayya was true and valid ; and (2)
whether Pitchayya and Chimpirayya were divided
as alleged by the plaintiff. The learned Subordinate
Judge, after considering the entire oral and documentary evidence in the case, came to the concluaion that
the plaintiff had not established the faotum of adoption of Venkayya by her husband Pitchayya and
that she also failed to pwve that Chimpira yya and
Pitchayya were divided from each other ; and in the
result he dismissed the suit with costs.
On appeal, a division Bench of the Andhra
High Court reviewed the entire evidence over again
and affirmed the findings of the learned Subordinate
Judge on both the issues. Before the learned Judges
another point was raised, namely, that the recitals
in the will disclose a clear and unambiguous declaration of the intention of Chimpirayya to divide, that
the said declaration constituted a severance in status
enabling him to exetute a will. The learned Judge
rejected that plea on two grounds, namely, (1) that
the will did not contain any such declaration ; and
(2) that, if it did, the plaintiff should have claimed
a division of the entire family property, that is, not
only the property claimed by Chimpirayya but also
the property alleged to have been given to Pitchayya
and that the suit
a~ framed would not be maintainable. In the result the appeal was dismissed with
costs. The present appeal has been preferred by the
plaintiff by certificate against the said judgment.
Learned Advocate-General of Andhra Pradesh, '
appearing
for th!'
appellant. raises before us
the
following
points : ( 1) The
findings
of
the High Court on adoption as well as on partition
were vitiated by the High Court not drawing the.
relevant presumptions permissible in the case of old
1963
Addagada·
R1gh0Vamm•
••
Addagadn
C/ur.ch.amma
Subha Rao }.
/963
Addag ufa
R.,1w .. ,,,,,,.
Y.
Md.tu•
CJi111charnm•
~ubba Rao J.
942
SUPREME COURT REPORTS [1964] VOL.
transactions, not appreciating the great evidentiary
value of public documents, ignoring or at any rate
not giving weight to admissions made by parties
and witnesses adopting a mechanical instead of an
intellectual approach and perspective and above all
ignoring the consistent conduct of parties spread over
a long period inevitably leading to the conclusion
that the adoption and the partition set up by the
appellant were true. (2)
On the assumption that
there
was no partition by metes and bounds, the
Court should have held on the basis of the entire evidence that there was a division in status between Chi·
mpirayya and Pitchayya, conferring on Chimpirayya
the right to bequeath his divided share of the family
property.
(3) The will itself contains recitals emphasizing the fact that he had all through been a divided
member of the family and that on the date of execution of the will he continued to possess that character of a divided member so as to entitle him to
execute the will in respect of his share and, therefore, the recitals in the will themselves constitute
an unambiguous declaration
of his
intention to
divide and the fact that the said manifestation of
intention was not communicaterl before his death to·
Subbarao or his guardian Chenchamma could not
affect his status as a divided member.
And ( 4)
Chenchamma, the guardian of Subbarao, was present
at the time of execution of the will and, therefore,
even if communication was necessary for bringing
about a divided status, it was made in the present
case.
Mr. Bhimasankaram, learned counsel for the
contesting first respondent, raises a preliminary objection to the effect that the certificate given by the
High Court was confined only to three questions which
did not include the issues relating to adoption or
partition and, therefore, the appellant could not question the correctness of those findings in respect of those
issues and that the question whether the recital~ in t4e
• •
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2 S.C.R. SUPRENIE COURT REPORTS
943
will
themselv~s constituted a partition in status
could not be allowed to be raised, as that point was
raised only for the first time in the High Court.
He
further contends that both the Courts below gave
concurrent findings of fact on the question of
adoption as well as on partition and this Court will
not reconsider the evidence as a rule of practice and
there are no excep•ional circumstances to depart
from that salutary practice in this appeal.
He
further seeks to sustain the findings of the High Court
on the evidence adduced in the case.
We shall take the preliminary objection first.
The material part of the certificate issued by the
High Court rea<is thus :
" ......... this Court doth certify that the value
of the subject matter of the suit in the court
of firqt
instance
is
upwards Rs. 20,000/-
(Rupees twenty thousand) and the ·value of the
subject matter in dispute on appeal to the
Supreme Court of India is also of the value of
upwards of Rs. 20,000/-
(Rupees
twenty
thousand)
and that the affirming decree
appealed from involves the following substantial questions of law :-
1. Whether a will executed by a member
of a joint Hindu family would of itself be
operative to effect a severance between him
and the other members of the family by reason
of the disposition contained in the will.
2.
Whether a will executed by a member
of a joint family on the assumption not proved
to be well founded or correct that as a result
of an anterior partition in the family he, the
testator. was solely entitled to the properties
disposed of by the will~ woqld be e~e<;~iye tQ
196'
AiY4PJ•
H11thavM11ma
AJJ1•i•
Ch~nchMnfn4
Subba -R•D J.
J96S
Adddtcd•
· Ra:1llo1Jt111StM
~
A.ldogod.
C/lnulumm•
S•Ha R•• J.
944
SUPREME COURT REPORTS [1964] VOL.
create a severance between the testator and the
other members as on the date of the will, and
3. Whether the afore5aid pleas cou Id be
raised for the first time on appeal without
their having been raised in the pleadings or at
any stage of the trial."
.
The said certificate was granted _within the
terms of Article 133 ( 1) of the Constitution. - The
material part of Article 133 (I) reads :
'
"An appeal shall lie to the Supreme Court
from any judgment, decree or final order
............ if the High Court certifies-( a) that
the amount or value of the subject matter of
the dispute in the court of first instance and
still in dispute on appeal was and is not less
than twenty thousand rupees or such other sum
as may be specified in that behalf by Parliament ; (b) that the judgment, decree or final
order involves directly or indirectly some claim
or question respecting property of the
like
amount of value ; or ( c) that the case is a fit
one for appeal to the Supreme Court ;
and where the judgment, decree or final order
appealed from affirms the decision of the court
immediately below in any case other than a
case referred in sub-clause (c), if the High Court
further certifies that the appeal involves some
substantial question of law."
Mr: Bhimasankaram contends that the conditions laid down for issuing a certificate must also
govern the scope of the appeal to the Supreme Court,
for, otherwise, the argument procr.eds,
the said
conditions would become otiose.
He concedes that
the Supreme Court can exercise
an unrestricted
power of reviewing the judgment of the High Court
'
. .
./
•
•
2 S.C.R.
SUPREME COURT REPORTS
945
in the case o~ a certificate hedged in with. conditions
by resorting to its power under Art. 136 of the
Constitution, but this is not a case where it can do
so especially having regard to the fact that the
appellant did not stek to invoke that power.
Under Art. 133 of the Constitution the certi·
ficate issued by the High Court in the manner
prescribed therein is a precondition for the maintainability of an appeal to the Supreme Court. But the
terms of the certificate do not circumscribe the scope
of the appeal, that is to say, once a proper certificate
is granted, the Supreme Court has undoubtedly the
power, as a court of appeal, to consider the correctness of the decision appealed against from every
standpoint, whether on questions of fact or law.
A successful party no doubt can question the main·
tainability of the appeal on the ground that the
certificate was issued by the High Court in contravention of the provisions of Art. l:i3 of the Constitution,
but once ·the certificate was good, the provisions of
Art. 133 did not confine the scope of the appeal to
the certificate. We, therefore, reject this preliminary
objection.
,
His next objection is that both the learned
Subordinate Judge and, on appeal, the learned
Judges of the High Court gave con.current findings
of fact on adopt~on as well as on partition and it is
the usual practice of this Court not to interfere with
•
such findings, except m exceptional circumstances
and there are no such circumstances in the present
case.
• •
;\r~icle 133 of the Constitution does not in any
way hmit the scope of an appeal, provided a proper
and valid certificate is issued by the High Court
thereunqer.
This Court has undoubtedly the power
to review the concurrent findings of fact arrived at
by the lower Courts in appropriate cases.
But it has
J9H
Addagada
Raghavamma
••
Addagada
Ghencliarnma
Subba Rao J •
1963
Atidatad12
Raghaiamma
...
Addagada
Clun:ha 11"'4
Su66a Rao J.
946 SUPREME COURT REPORTS [l 964j VOL.
been a long_standing practice of the Privy Council .
not to interfere with such findings
based
upon
relevant evidence, except under extraordinary and
exceptional
<;ircumstances:
Vide
Rani
v.
Khagendrar (1); Fatima Ribi v. Ahmed Bakshi('):
l!arerulra
v.
l!aridasi (');
and Bibhahati
v.
Ramendra ('); The same practice has been adopted
and followed by this Court since its inception : see
Nanalal v. Romhay Life Assurance Co. 1'); Firm
Sriniva.~ Ram v. 11! ahabir Prasad ('): Trojan
&,
Co. v. Naganna ('); Ra.iinder Chand v. M.~I. Sukhi (B);
Rhikka v. Charan Singh ('); llf.M.B. Catholico., v.
T. Paulo
Avira (10 )
and Narayan
Bhn.gwantrao
Gosavi Balajiwale v. Gopal Vinanyak Gosavi (11).
The reason for the practice is stated to be
that when facts have been fairly tried by two Courts
and the same conclusion has been reached by both, it
is not in the public interest that the facts should be
again examinr.d by the ultimate court of appeal.
Whatever may be the reason for the ml~. the practice
has become fairly crvstallized
and
this Court
ordinarily will not interfere with concurrent findings
pf fact except in exceptiolJal cases, where the finrlings
are such that it "shock• the conscience of the Court
or by disregard to the forms of legal process or some
violation of some principles of natural justice or
otherwise substantial and grave injustice has been
done." It is not possible nor advisable to define
thme circumstances. It must
neres~arilv he left to
the discretion of this Court having regard to the
facts of a particular case. ·We have heard learned
counsel on merits and we do not think it is one.of
those exceptional cases
where we should depart
from the salutary practice adopted by this-Court.
Learned Advocate-General contends that the
learned Subordinate Judge as well as the High Cou,rt
did not draw the appropriate presumptions arising
from the fact that the transactions were old ones,
(Tl (IOQI) J.L R.. ql Cal. R71,
(2) (l9Uq\ I J..R
q~ Cal. 271.
f5) (191") J.1..F. •1 C'a1.972, 988.
(41 rtQ4fiJ Sl r.wN 98, 147.
15) A.IR. 1•50 S.C. 172.
(~) A IR. 1•~1 c. C. 177.
(71 A.IR. 19~3 s.r.. ?35,
1R) A.l.R s.r:. 28~.
(9) [19Sg) Supp 2 S.C.R. 798
110> A,I R
19~9 S.C. 31.
(II) [1960) i S.C.R. 773
•
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2 S.C.R.
SUPREME COURT REPORTS
947
nor did they give sufficient weight to the entries in
the revenue records, the admissions made by the
parties and to the conduct of the parties and such
other important circumstances and, therefore, their
findings are liable to be questioned in this appeal.
This argument in effect and substance means that
the Courts below have not given due· weight to
particular pieces of evidence. There is an essential
distinction between burden of proof and onus of
proof; burden of p~oof lies upon the person who has
to prove a fact and it never shifts, but the onus of
proof shifts. The burden of proof in the present
case undoubtedly lies upon the plaintiff to establish
the.factum of adoption and that of partition. The
said circumstances do not alter the incidence of the
burden of proof.
Such considerations, having regard
to the circumstances of a particular case, may shift
the onus of proof. Such a shifting of onus is a
continuous process in the evaluation of evidence.
The criticism levelled against the judgments of the
lower Courts, therefore .. only pertain to the domain
of appreciation of evidence. We shall, therefore,
broadly consider th_e evidernze not for the purpose of
revaluation, but to see whetJier the treatment of the
case by the Courts below is such that it falls in the .
category of exceptional cases where this Court, in
the interest of justice, should depart from its usual
practice.
We shall first take the question of adoption .
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 Jae tum of adoption
and its validity. Here, the appellant alleges in the
plaint that Venkayya: the son of Chimpirayya, was
taken in adoption by her husband, Pitchayya. The
first defendant, the widow of Venkayya, denies in
her written ·statement that her husband was adopted
196J
Mdagada
Raghav.2mma
.,,
Adtiatat!a
Ch1ncliammt
Subba Raa /.
1963
Adtlag uia
Roghao.1mnia
v.
Add1ga'1a
Chrnchamma
•
948 SUPREME COURT REPORTS[i964] VOL.
by Pitchayya. On the said pleadings the following
issue was
framed : "Whether the
adoption of'
Venkayya is true and valid." On the pleading the
burden of pro:if has rightly been
placed on the
plaintiff. The adoption is alkgcd to have taken
place in the year 1905.
Th~ circumstances obtaining at that time were as follows : Chimpirayya was
about 40 years old; he had only one son, Venkayya,
who was aged about 2 years: Pitchay\'a was about
25 years old an::!, therefore, ordinarily he had every
·prospect of having ch;ldren of his own; it is, tl>crefore
highly improbable, unless there are special circums-
. tances, that an only son of an elder brother was
taken in adoption by his younger brother; though
there is no legal prohibition, it is well known that
ordinarily an only son is neither given nor taken in
adoption. P.\V.l. admits that Addagada family i~
a prominent and afHuent family in the village.
But
curiously no document of adoption was executed, n'.J
invitations were sent to relatives and village officers,
and no expenditure incurred in connection with the
adoption was entered in the accounts. Unless the"re
were compelling and extraordinary circumstances
which necessitated dispensing with all formalities, it is
unthinkable that in a village there could have been
an adoption made in such an afHuent family without
pomp and show.
P. w~. l and 2 speak to the
adoption.
P. W. l is t'1e cousin of the appellant
and P.W. 2 is appellant herself.
P. W. I says that
Pitchayya adopted his brother's son Vcnkayya and·
he lived for on~ month thereafter.
The reason for
the adoption, according to her, was that he was sick
and was afraid that he would die.
She graphically
describes
that
Alivclamma,
the
wife
of
Chimpirayya, gave her son in adoption
to
the
accompaniment of "mantrams and t-mtmms", that.
one Subbayya of Upputur was the prohit who
officiated in the ceremony. In the cross-examination she says that Pitchan a did not die suddenly
of an attack of fever but was suffering from dropsy
. '
...
..
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-
. .
2 S.C.R.
SUPREME COURT REPORTS 949
for about a month and also even earlier; she admits
that for important functions like marriage and adop-
. tion in their family . they would invite the village
officers and other important people of the village,
but no such officers or important people were invited
when Venakayya was taken in adoption. This
witness was 60 years old in 1961 and therefore she
would have been about 15 years at the time of the
alleged adoption. Assuming for a moment that
'Pitchayya was suffering from dropsy, there is no
reason why no important persons were invited for
the function. If her evidence were true, Pit cha yya
took part in the· alleged ceremony and it cannot
therefore be suggested that he was so ill that all the
formalities had to be . dispensed with. Indeed; if he
.was ill and if the adoption was made without inviting the important people, that should have beea the
very reason why the village officers would have been
invited and a document to evidence it executed.
P. W. 2 is the appellant Raghavamma. She says that
there was a ceremony of adoption officiated by the
prohit Subbayya and that her brother.in-law and his
wife gave the boy to her and her husband in adoption. She also deposes 'that her father and his
brothers were present at the adoption.
In· the crossexamination she says that her husband lived for
about 3 months after the adoption. She admits that
no document was executed and that though there
were accounts, no entries relating to the expenses of
the adoption were entered therein. While P.W. l says
that Pitchayya lived for one month after the adoption, P. W. 2 says that he lived for about 3 months
thereafter. Neither in the pleadings nor in the
evidence the date of adoption is given. The
evidence of P. W. l is vague and appears to be
improvised and the evidence of P. W. 2 discloses the
improbabilities inherent in such an adoption.
They
also contradict each other on material circumstances.
The
Courts
below
have.
disbelieved
their
evidence.
AddagtJdti.
Raghovamma
v.
Addagala
Chenct1amma
Subha Rao ~-
'
Atldugad11
Ro1Mrxzmrr1a
••
Atldagatl"
CtunduJ,,..a
950
SUPREME COURT REPORTS [1964] VOL.
The appellant and the first respondent relied
upon the conduct of the parties subsequent to the
alleged adoption and filed a number of documents
to support their respective cases. Documentary
evidence considered [omitted] ..
x
x
x
x
x
x
So far as the documentary evidence goes, the
position is as
follow.>:
Till 1911 there was no
document recording the fact that Venkayya was the
adopted son of Pitchayya, and that after 1911 there
had been contradictory recitals in the documents.
Broadly speaking whenever Venkayya executed a
document he described himself as the son of
Chimpirayya, and whenever third parties executed
documents, he was described as the adopted son of
l'itchayya. He filed suits, sometimes as the son of
Chimpirayya and sometimes as the adopted son of
Pitchayya. His name was entered in the accounts
relating to Paruchur, but not in the accounts relating
to Upputur; he gave evidence declaring himself as the
son of Chimpira yya and also insured his life as such
he operated on the accounts of third parties as the
son of Chimpirayya; while in the will executed by
Chimpirayya, he was described as the adopted son of
Pitchayya on the death of Venkayya the appellant
herself, who under the will was entitled to continue ·
in possession and . management, handed over the
entire management to the first respondent indicating
thereby that the will was not really intended to take
elfect. In this state of evidence it is not possible to
say that there had been a consistent pattern of
conduct from which a Court should draw the
inference that the adoption mus.t have taken place.
Attempt is made to
reconcile these contradictory descriptions in the documents by developing
different
theories.
Learned
Advocate-General
suggests that there was no reason why Chimpirayya
should have put forward Venkayya falsely as the
...
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. .
. .
2 S.C.R.
SUPREME COURT REPORTS
951
adopted son of Pitchayya as early as 19 ll when he
should not have gained any advantage fhereby, for
without the aid of adoption the entire property
of Pitchayya would have .come to him by survivor--
ship. Mr. Bhimasankaram surmises that Chimpirayya
put forward the adoption without the knowledge of
Raghavamma to safeguard his family interests against
the possible adoption later on by Raghavamma of
a stranger and that subsequently both joined together
with a view to put pressure upon the first respondent
to marry her son Subbarao to .{(amalamma. He also
suggests that Chimpirayya began to put forward
his son Venkayya as the adopted son of Pitchayya
only after the birth of his second son in 1910 and
that after the death of that son in 1916, his only
interest was to see that his grand son by his son
Venkayya was married to hi> grand-daughter by his
daughter and that the will was executed only to p1Jt
pressure upon the first respondent. That the will
was executed only . for this limited purpose, learned
counsel• argues, is clearly demonstrated by the fact
that Raghavamma, though she was entitled to be
put"in possession of the entire property, handed over
the management of the same to the first respondent
after the death of Chimpirayya. The said suggestions
made by learned counsel on both sides are only
based on surmises and they cannot be made the basis
for a court's conclusion. In this state of evidence
when both the Courts found, on· a careful consideration. of oral and documentary evidence and the
probabiiities arising therefrom that the appellant on
whom 'the burden of proof lay to establish that
Venkayya was adopted to Pitchayya has failed to
discharge it, we· cannot say that the finding was
vitiated by such errors that we should review the
entire evidence over again and come to a conclusion
of our own. We therefore, accept the concurrent
finding of fact that there was no adoption.
The next question is whether the concurrent
finding of fact arrived at by the Courts below on the
1963
Addaf!ada
Raghauamma
••
Addag•1da
Chencnamma
Suhla R.ao J.
1963
Advog•d&
Rolhotammo
v.
Addo1aJa
Chtrrchamru
Subba Ru/,
952
SUPREME COURT REPORTS [1964]VOL.
question of partition calls for our interference. In
the plaint neither the details of the partition nor the
date of partition arc given. In the written·statemcnt
the first respondent states that Chimpirayya died
undivided from his son's son
Subbarao and so
Subbarao got the entire property by survivorship.
The second issue framed was whether Chimpirayya
and Pitchayya were divided as alleged by the plaintiff.
The partition is alltged to have taken place in or
about the year 1895; but no parti1io11 deed was
executed to evidence the same. The
burden is
certainly on the appellant who sets up partition to
prove the said fact.
P.W. I, though she says that
Veeranna was alive when his
sons effec:ted the
partition, admits that she was not present at the time
of partition, but only heard about it.
P.W. 2, the
appellant, deposes that her husband and his brothers
effected partition af!er she went to live with him;
she adds that in that partition her father·in·law took
about 4 acres of land described as fl(mrr1fa Chenu
subject to the condition that after his death it should
be taken by his four sons, that at the time of parti\ion
they drew up partition lists and recited that each
should enjoy what was allotted to him and that the
lists were written by one Manchella Narasinhayya;
she also admits that the lists are in existence, but
she has not taken any steps to have them produced
in Court.
She says that each of the brothers got
pattas according.to the partition, and that.the pattas
got for Pitchayya's share are in his house; yet she
does not produce them. She says that she paid kist
for the lands allotted to
Pitchayya's share and
obtained receipts; but the receipts are not filed.
She
admits that she has the account books; but they have
not been filed in Court. On her own showing there
is reliable evidence, such as accounts, pattas, receipts,
partition lists and that they are available; but they
are not placed before
the Court.
Her inter~stcd
evidence cannot obviously be acted upon when a\I
the relevent evidence has been suppressed.
., .
-
.