AMANCHI SESHAMMA Vs. AMANCHI PADMANABHA RAO

JUDGEMENT

(1.) The question in this case is whether the deceased Krishna Rao was capable of making an adoption. He had been found a lunatic under the Lunatic Act XXXV of 1858 in 1903 and the effect of that finding is to raise a presumption that he continued to be of unsound mind until the contrary is shown. We are altogether unable to accept the arguments presented by Mr. Venkatarama Ayyar for the appellant that the effect of an Order under that Act appointing a manager of the properties of the lunatic is to incapacitate the lunatic from making an adoption till the Order is set aside. No authority has been cited in support of that proposition. On the other hand, as pointed out by the District Judge, in the Courts of Wards. Act I of 1902 in this Presidency, where it was desired to control the power of an incapacitated person under that Act to make an adoption, express provisions to that effect were inserted and a perusal of those provisions shows how very careful the legislature was and that all that it did was to provide that the Court of Wards should satisfy itself that the power of adoption was not being abused. We cannot accept the argument that an adoption is an act which amounts to alienation of property like a lease or mortgage. It affects the status and further than that, it has, in the opinion of Hindus, religious efficacy and it would not be right for the Court to hold that a Hindu; was deprived by any statute of the power of making an adoption unless there were clear unambiguous words to that effect. We therefore disagree with that contention and it only remains therefore to see upon the evidence whether it is satisfactorily shown that the adoptive father was of sound mind at the time when he made the adoption.

(2.) As to the law on this question, we may refer to Snook v. Watts (1848) 11 Beaven, 105 where it is said: The finding of the jury upon a commission of lunacy that a party is lunatic, throws the burthen of proof on those who contend the contrary. The presumption is not then, as it would otherwise be, in favour of sanity or soundness of mind, but the contrary must be proved; that is, they who allege the sanity of a person at a time subsequent to that at which he has been found lunatic under a commission, have the burthen cast on them of proving the soundness of mind of such person.

(3.) And the same question has recently been alluded to in Hill v. Clifford (1907) 2 Ch. App. 236 at p. 245 where Cozens Hardy, M.R., cites Van Grutten v. Foxwell (1897) A.C. 658 in which case Lopes, L. J;, is cited as saying: The inquisition affords no doubt prima facie but not conclusive evidence of Mary s insanity in October 1833, anterior to the execution of the disentailing deed, evidence which should be acted upon unless there is evidence the other way.