Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.)

2023 INSC 1004 Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2435 OF 2010

Moturu Nalini Kanth … Appellant

Versus

Gainedi Kaliprasad (dead, through LRs.) … Respondents

JUDGMENT

SANJAY KUMAR, J

1. Moturu Nalini Kanth, then a minor, claimed absolute right and title

over the properties of late Venkubayamma under registered Will Deed

dated 03.05.1982. It was also claimed that he was adopted by her, as

evidenced by registered Adoption Deed dated 20.04.1982. Nalini Kanth

was not even a year old at that time, as he was born on 10.07.1981.

O.S. No. 113 of 1983 was filed by Nalini Kanth, through his guardian, for Signature Not Verified Digitally signed by GEETA AHUJA

declaratory and consequential reliefs in respect of Venkubayamma’s Date: 2023.11.20 11:41:46 IST Reason:

properties. The learned Principal Subordinate Judge, Srikakulam, held in

1 his favour, vide judgment dated 30.09.1989, and decreed the suit.

However, in appeal, the High Court of Andhra Pradesh held against Nalini

Kanth, vide judgment dated 11.12.2006, and allowed Appeal Suit No. 2695

of 1989 filed by Gainedi Kaliprasad, Venkubayamma’s grandson through

her deceased daughter, Varalaxmi. Hence, this appeal by Nalini Kanth.

2. Nalini Kanth’s prayer in O.S. No. 113 of 1983 before the learned

Principal Subordinate Judge, Srikakulam, filed through his guardian, was

for declaration of his title to the suit properties that had belonged to

Venkubayamma and for recovery of their possession from Kaliprasad,

defendant No.1. His case was that he was adopted by Venkubayamma on

18.04.1982 at Sri Sri Raghunadha Swamy Temple at Bhapur in Berhampur

City, Ganjam District, Orissa (presently, Odisha). It was claimed that the

Adoption Deed (Ex. A9) was executed on 20.04.1982 and it was registered

on the same day. It was signed by his natural parents who gave him in

adoption and also by his adoptive mother. Thereafter, Venkubayamma

executed registered Will Deed dated 03.05.1982 (Ex. A10) in a sound state

of mind bequeathing all her properties to him. Thereby, Venkubayamma

also canceled her earlier Will Deed dated 26.05.1981 (Ex. A19), executed

in favour of Kaliprasad, her grandson. Under Ex. A10 Will, Venkubayamma

appointed Pasupuleti Anasuya (PW 1) as the executor of the Will and also

2 as the guardian of Nalini Kanth, in the event she died during his minority. In

fact, Venkubayamma died just two months later, on 26.07.1982.

Defendants No. 2 to 12 in the suit were Venkubayamma’s tenants. As

disputes arose between Pasupuleti Anasuya, Nalini Kanth’s guardian, and

Kaliprasad as to who was entitled to receive the rents, the suit in O.S. No.

113 of 1983 came to be filed by her on his behalf.

3. The suit was contested by Kaliprasad. He challenged the Adoption

Deed as well as the Will Deed, under which Nalini Kanth claimed rights. He

alleged that Venkubayamma was a resident of Srikakulam and was very

old in 1982. According to him, she was senile and was not in a position to

exercise free will and consciousness. He asserted that the adoption was

not true, valid or binding on him. He contended that Ex. A10 Will was

invalid as it was not properly attested. He claimed that Venkubayamma had

brought him up and got his marriage performed and that she had always

treated him as her sole heir and successor.

4. The Trial Court settled the following issues for consideration:

‘1. Whether the plaintiff is the adopted son of Venkubayamma and the Adoption Deed dated 19.04.1982 (sic) is true?

2. Whether the registered Will dated 03.05.1982 executed by late Venkubayamma is true and valid?

3. Whether the plaintiff is entitled to the possession of the suit properties?

4. To what relief?’ 3

5. PWs 1 to 15 were examined for the plaintiff, Nalini Kanth, by his

guardian. Ex. A1 to A25 were marked on his behalf. Kaliprasad examined

himself as DW 1. He also examined DWs 2 and 3 but did not adduce any

documentary evidence. Exs. C1 & C2 and Exs. X1 & X2 were also made

part of the record. Ex C1 is the affidavit dated 16.09.1982 of Balaga

Sivanarayana Rao, stating that he had scribed Ex. A10 Will Deed. It was

attested by B. Prasada Rao, Advocate. Ex. C2 is stated to be the affidavit

dated 16.09.1982 of Pydi Appala Suranna, an attesting witness to Ex. A10

Will Deed. It was attested by K. V. Ramanayya, Advocate. Exs. X1 and X2,

as per the version of Nalini Kanth’s guardian, are the thumb marks of

Venkubayamma but this is disputed by Kaliprasad.

6. At this stage, we may note that the contesting parties are all

related to Venkubayamma. Kaliprasad, as stated earlier, is the son of her

predeceased daughter, Varalaxmi. Nalini Kanth is the son of her brother’s

son, viz., P. Panduranga Rao. Pasupuleti Anasuya, the guardian, is

P. Panduranga Rao’s elder sister and the paternal aunt of Nalini Kanth.

7. Deposing as PW 1, Pasupuleti Anasuya stated as follows:

Venkubayamma had extended an invitation to attend the adoption of Nalini

Kanth. Ex. A1 is the invitation. The adoption took place at Raghunadha

Swamy Temple, Berhampur, at 10 am on 18.04.1982 and all their relations

4 and friends attended the ceremony. All the customary rituals for adoption

took place and the natural parents physically handed over the child to

Venkubayamma but she, herself, was not present when the child was

physically handed over. Exs. A2 to A4 photographs were taken at that time.

Exs. A5 to A7 are the negatives thereof. Ex. A8 cash receipt was issued by

the photographer, Sunkara Papa Rao. The Adoption Deed dated

20.04.1982 is Ex. A9. Venkubayamma executed a registered Will on

03.05.1982 and it is Ex. A10. She was in a sound and disposing state of

mind till her death. Venkubayamma gave necessary instructions to the

scribe for writing Ex. A10 Will and she went with her to the Sub-Registrar’s

office. In her cross-examination, PW1 admitted that she was not there in

any of the photos (Exs. A2 to A4). She denied the suggestion that

Venkubayamma was not at all present in those photographs and that she

never adopted Nalini Kanth by executing Ex. A9 Adoption Deed.

8. P. Panduranga Rao, the natural father of Nalini Kanth, deposed as

PW 2. He stated that Venkubayamma was his father’s sister and that he,

along with his wife, gave their second son, Nalini Kanth, in adoption to her.

He said that the adoption ceremony took place on 18.04.1982 and Ex. A1

was the invitation printed on that occasion. He also spoke of Exs. A2 to A4

photographs and asserted that the child was handed over by him and his

5 wife to Venkubayamma in adoption. He admitted his signature in the

Adoption Deed (Ex. A9). In his cross-examination, PW 2 admitted that

Venkubayamma brought up Kaliprasad from childhood, got him educated

and performed his marriage. He also admitted that none of the relatives of

Venkubayamma residing at Srikakulam attended the adoption ceremony.

He also stated that Kaliprasad was residing in the house of

Venkubayamma at the time of Nalini Kanth’s adoption in 1982.

9. PW 3 is one of the attestors of Ex. A9 Adoption Deed and he is the

brother of PWs 1 and 2. According to him, the other attesting witness to the

document as well as the scribe thereof had expired. He stated that all the

rituals had taken place at the time of adoption and the ceremonies were

conducted at Raghunadha Swamy Temple at Berhampur at 10 am. He also

spoke of Exs. A2 to A4 photographs being taken at that time. He further

stated that the adoption was registered at Berhampur on 20.04.1982. PW 4

is the photographer who took Exs. A2 to A4 photographs, which were

marked along with Exs. A5 to A7 negatives and Ex. A8 receipt by PW 1.

10. PW 5, an Advocate, was examined to identify Venkubayamma in

the photographs, as he claimed to be a distant relative. He stated that the

woman in Ex. A3 photograph, wearing spectacles, was Venkubayamma

and that she was also seen in Ex. A2 photograph. He stated that in Ex. A4

6 photograph, she was seen holding a child in her lap. He stated in his cross-

examination that Kaliprasad was with Venkubayamma since ten years.

11. PW 6 is the document-writer who scribed Ex. A10 Will Deed. He

said that he knew Pydi Appala Suranna, one of the attestors thereto, but he

was no more. He stated that he did not know the other attestor. He claimed

that he had known Venkubayamma for about 5 or 6 years. He admitted that

Ex. C1 was in his handwriting and bore his signature. He also admitted that

Ex. C2 was in his handwriting and claimed that Pydi Appala Suranna had

signed therein. He said that he was not present when Venkubayamma

signed Ex. A10 Will. Thereupon, he was cross-examined by the plaintiff’s

counsel. In the course of such cross-examination, he stated that he wrote

Ex. C1 affidavit at the dictation of the plaintiff’s counsel at his house. He

further stated that he did not see who exactly signed in Ex. A10 Will Deed.

A woman was stated to be sitting at a distance but he did not know if she

was Venkubayamma and whether she signed the document. He stated that

the prior Will of Venkubayamma dated 26.05.1981 (Ex. A19) was also

written by him and Venkubayamma had signed the same in his presence.

He further stated that he told the plaintiff’s counsel that, as he did not see

Venkubayamma signing the Will, he would not sign the affidavit. However,

the plaintiff’s counsel persuaded him to sign it, saying that he need not

7 worry about it and that there would be no consequences. He claimed that

some lady from Berhampur who was a relation of Venkubayamma brought

the earlier Will to him and he mentioned the date of the said Will in Ex. A10

Will. In his cross-examination by the defence, PW 6 stated that while he

was in the Registrar’s office attending to some work, a lady from

Berhampur came to him and on that day, the document was written. He

further stated that he knew Venkubayamma but she did not come to him on

that day. The woman who came from Berhampur gave all the information to

write the document and the recital in the Will that the plaintiff’s adoption

took place in the house of his natural parents in Chandramanipeta of

Berhampur town was made only on the instructions given by the woman.

The other particulars mentioned in the Will were also stated to have been

given by the same woman. After the writing of the document, according to

PW 6, Venkubayamma and the witnesses did not come to him and he did

not go to them. He stated that they took the written Will saying that

Venkubayamma could herself read the document. He further stated that

Pydi Appala Suranna, one of the attestors, also did not sign before him. He

also said that he could not say whether the signature in Ex. A10 was that of

Pydi Appala Suranna. In his further cross-examination by the plaintiff’s

counsel, PW 6 denied the suggestion that he was told that the adoption

8 took place at Raghunadha Swamy Temple and the other formal ceremonies

were performed at the natural parents’ house but he omitted to write that

the adoption took place at the temple.

12. PW 7 is the purohit who is stated to have performed the adoption

ceremonies. He stated that his native place was Berhampur and he was

doing pourohityam since about 12 years. He stated that he was the purohit

for the family of P. Panduranga Rao (PW 2). He further stated that he knew

Venkubayamma as she used to visit her parents’ house. He stated that he

had performed pourohityam at the time of the adoption. He claimed that the

adoption ceremony took place in Raghunadha Swamy Temple and datta

homam was also performed. He further claimed that after the datta homam,

the child was physically handed over to the adoptive mother by the parents

and photos were taken on that occasion. He identified himself along with

the adoptive mother, the natural parents and the child in Ex. A2 and Ex. A3

photographs. He further stated that after the official adoption was over at

the temple, they worshipped their personal deity at home. PW 7 stated in

his cross-examination that he used to see Venkubayamma once or twice a

year at her parents’ house in Chandramanipeta. He was questioned about

certain ceremonies in the context of adoption and stated that he had not

performed the same. He denied the suggestion that the woman in Exs. A2

9 to A4 photographs was not Venkubayamma. He, however, stated that

Raghunadha Swamy Temple was in Chandramanipeta and

Ramalingeshwara and Mukteshwara Temples were in Bhapur.

13. PW 8 is the Advocate who attested Ex. C1 affidavit. PW9 is the

Sub-Registrar at Chodavaram who registered Ex. A19 Will. He stated in his

cross-examination that he did not know Venkubayamma personally and

that the identifying witnesses told him that the executant was

Venkubayamma. He said that the executant also stated her name to him.

PW 10 was a Director of the Finger Prints Bureau at Madras. His evidence

was that the thumb prints in the Adoption Deed and the Will Deed were

identical to the thumb print of Venkubayamma in the Sub-Registrar’s record

pertaining to Ex. A19 Will. PW 11 was from the Registration Department at

Kurnool and spoke of Venkubayamma affixing her thumb print in Ex. A10

Will in his presence. However, in his cross-examination, PW 11 admitted

that he did not know her personally and relied only on the identifying

witnesses. He also could not say what the age of the said executant was,

due to lapse of time. PW 12, an Advocate at Srikakulam, stated that he

knew Venkubayamma, who was a client of his father and, thereafter,

himself. He further stated that he could identify her and claimed that the

woman, wearing glasses and holding a child, in Exs. A2 and A3

10 photographs, was Venkubayamma. He admitted in his cross-examination

that, though Venkubayamma was about 70 years of age in 1970, she did

not appear to be of that age in the photographs. He did not know when she

died but stated that she died by 1985.

14. PW 13 is the Advocate who attested Ex. C2 affidavit. He admitted

in his cross-examination that he previously did not know Pydi Appala

Suranna, the deponent thereto. PW 14 was an invitee to the adoption

ceremony at Berhampur. He claimed to be in Ex. A4 photograph. However,

in his cross-examination, he admitted that Venkubayamma must have been

about 65 to 70 years old but the lady in Ex. A4 photograph was about 45

years of age. He also admitted that he was only acquainted with PW 2, the

natural father of the adopted child, and that he had no relationship or

friendship either with Venkubayamma or her husband and except by way of

PW 2’s introduction that she was Venkubayamma, he had no other source

of information. PW 15 was an identifying witness in Ex. A10 Will. According

to him, Pydi Appala Suranna and a person, whose name he did not know,

attested Ex. A10 Will on the Sub-Registrar’s Office verandah. He claimed

he was present when the attestors and the scribe signed on Ex. A10. He

said that he could identify Venkubayamma and claimed that she was the

third person, wearing spectacles, in Ex. A2 photograph. He identified her as

11 the woman sitting, wearing glasses, with a baby in her lap, in Ex. A3. He

also identified her in Ex. A4. He asserted that he knew Venkubayamma for

the last 10 years but he did not know any other details or when she died.

15. Kaliprasad deposed as DW 1. He stated that Venkubayamma was

his mother’s mother and asserted that she never adopted any boy during

her lifetime. He asserted that Venkubayamma only had one daughter and

he was the son of that daughter. He claimed to be the sole heir to the

properties of late Venkubayamma. He claimed that since childhood, he was

brought up in Venkubayamma’s house and that his marriage was

performed by her in February, 1982. According to him, Venkubayamma was

between 75 to 80 years of age at the time of her death. He said that she

told him about a Will in his favour after his marriage but he had not seen

the document. He denied that she had adopted a boy. According to him,

she went to Srikakulam till the second week of July, 1982, and after that,

she wanted to go to her relations’ houses at Vizianagaram, Berhampur and

Khurda Road. He further stated that, by the time he attained the age of

discretion, Venkubayamma’s hair had turned grey and asserted that it was

false that Exs. A2 to A4 photographs were of Venkubayamma. He stated

that she used to write letters to him whenever she was in camp and he

was, therefore, acquainted with her signature and handwriting. He stated

12 that Ex. A9 Adoption Deed did not bear the signature of Venkubayamma.

He further stated that Exs. X1 and X2 were not the thumb marks of

Venkubayamma. He denied the suggestion that Venkubayamma had

adopted Nalini Kanth and had executed a Will, whereby he would be

entitled to her properties.

16. In his cross-examination, Kaliprasad stated that he did not have

any photograph of Venkubayamma. He denied the suggestion that she

used to apply hair dye. He also denied that the woman in Exs. A2 and A3

photographs was Venkubayamma. According to him, Venkubayamma used

to write letters to him while he was at Hyderabad and she was in the habit

of signing in English using disjointed letters. He admitted that some of her

letters were signed in Telugu but a few were signed in English. He asserted

that the signatures in Ex. A10 were not that of Venkubayamma and denied

that the thumb marks (Exs. X1 and X2) were of Venkubayamma.

17. As already noted supra, the Trial Court held in favour of Nalini

Kanth but, in appeal, the High Court reversed that decision. In essence,

this case would turn upon the validity of Ex. A10 Will. Further, the validity of

Ex. A9 Adoption Deed would also require examination. In the event Ex. A10

Will is found to be valid, Nalini Kanth would be the sole heir thereunder, but

if it is held to be invalid and Ex. A9 Adoption Deed is found to be valid, he

13 would be an heir, as an adopted son, along with Kaliprasad, the grandson.

He would then be entitled to a half-share in the suit properties.

18. First and foremost, we may note the essential legal requirements

to prove a Will. Section 63 of the Indian Succession Act, 1925 (for brevity,

‘the Succession Act’), prescribes the mode and method of proving a Will

and, to the extent relevant, it reads as under: -

“63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: -

(a). …….

(b). …….

(c). The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

19. In turn, Sections 68 and 69 of the Indian Evidence Act, 1872 (for

brevity, ‘the Evidence Act’), read as under:

‘68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a

14 Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Section 69. Proof where no attesting witness found. – If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.’

20. Trite to state, mere registration of a Will does not attach to it a

stamp of validity and it must still be proved in terms of the above legal

mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam 1, this

Court held that the requirements in clauses (a), (b) and (c) of Section 63 of

the Succession Act have to be complied with to prove a Will and the most

important point is that the Will has to be attested by two or more witnesses

and each of these witnesses must have seen the testator sign or affix his

mark to the Will or must have seen some other person sign the Will in the

presence of and by the direction of the testator or must have received from

the testator a personal acknowledgment of his signature or mark or of the

signature or mark of such other person and each of the witnesses has to

sign the Will in the presence of the testator. It was further held that, a

person propounding a Will has got to prove that it was duly and validly

executed and that cannot be done by simply proving that the signature on

1 (2003) 2 SCC 91

15 the Will was that of the testator, as the propounder must also prove that the

attestations were made properly, as required by Section 63(c) of the

Succession Act. These principles were affirmed in Lalitaben Jayantilal

Popat vs. Pragnaben Jamnadas Kataria and others 2.

21. More recently, in Ramesh Verma (Dead) through LRs. vs. Lajesh

Saxena (Dead) by LRs. and another3, this Court observed that a Will, like

any other document, is to be proved in terms of the provisions of the

Evidence Act. It was held that the propounder of the Will is called upon to

show by satisfactory evidence that the Will was signed by the testator, that

the testator at the relevant time was in a sound and disposing state of

mind, that he understood the nature and effect of the disposition and put

his signature to the document of his own free will and the document shall

not be used as evidence until one attesting witness at least has been called

for the purpose of proving its execution. It was noted that this is the

mandate of Section 68 of the Evidence Act and the position would remain

the same even when the opposite party does not deny the execution of the

Will.

22. Long ago, in H. Venkatachala Iyengar vs. B.N. Thimmajamma

and others4, a 3-Judge Bench of this Court noted that there is an important 2 (2008) 15 SCC 365 3 (2017) 1 SCC 257 4 AIR 1959 SC 443

16 feature which distinguishes Wills from other documents as, unlike other

documents, a Will speaks from the death of the testator and, therefore,

when it is propounded or produced before a Court, the testator who has

already departed from the world cannot say whether it is his Will or not. It

was held that the onus on the propounder to prove the Will can be taken to

be discharged on proof of the essential facts, such as, that the Will was

signed by the testator; that the testator at the relevant time was in a sound

and disposing state of mind; that he understood the nature and effect of the

dispositions; and that he put his signature to the document of his own free

will. It was, however, noted by the Bench that there may be cases in which

the execution of the Will is surrounded by suspicious circumstances and

the same would naturally tend to make the initial onus very heavy and

unless it is satisfactorily discharged, Courts would be reluctant to treat the

document as the last Will of the testator.

23. Again, in Jagdish Chand Sharma vs. Narain Singh Saini (Dead) 5 through LRs. and others , this Court held as under:

‘57. A will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. As understandably, the testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent 5 (2015) 8 SCC 615

17 requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63(c) of the Act and Section 68 of the 1872 Act is thus befitting the underlying exigency to secure against any self-serving intervention contrary to the last wishes of the executor.

57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident.’

24. Earlier, in Bhagat Ram and another vs. Suresh and others 6, this

Court observed as under:

‘12. According to Section 68 of the Evidence Act, 1872, a document required by law to be attested, which a Will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amenable to the process of the court. The proviso inserted in Section 68 by Act 31 of 1926 dispenses with the mandatory requirement of calling an attesting witness in proof of the execution of any document to which Section 68 applies if it has 6 (2003) 12 SCC 35

18 been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. However, a Will is excepted from the operation of the proviso. A Will has to be proved as required by the main part of Section 68.’

25. Thereafter, in Benga Behera and another vs. Braja Kishore

Nanda and others7, this Court held thus:

‘40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant.’

26. Much more recently, in Ashutosh Samanta (Dead) by LRs. and

others vs. SM. Ranjan Bala Dasi and others 8, this Court noted that

where the attesting witnesses died or could not be found, the propounder of

the Will is not helpless, as Section 69 of the Evidence Act would be

applicable. On facts, this Court found that others who were present at the

time the testator and the two attesting witnesses signed the Will were

examined and the Will was also supported by a registered partition deed

which gave effect to it. Considering these circumstances in totality and as

none of the heirs of the testator contested the grant of letters of 7 (2007) 9 SCC 728 8 (2023) SCC OnLine SC 255

19 administration, this Court held that there could be only one conclusion, i.e.,

that the Will was duly executed and the propounder was successful in

proving it. Notably, there was no contest to the Will and that is a

distinguishing factor when compared with the case on hand.

27. On the same lines, in Ved Mitra Verma vs. Dharam Deo Verma9,

having found that the attesting witnesses had died, this Court held that the

examination of the Sub-Registrar, who had registered the Will and who

spoke of the circumstances in which the attesting witnesses as well as the

testator had signed on the document, would be sufficient to prove the Will

in terms of Section 69 of the Evidence Act.

28. However, in Apoline D’ Souza vs. John D’ Souza 10, this Court

had noted that Section 68 of the Evidence Act provides for the mode and

manner through which execution of a Will is to be proved and held that

proof of attestation of a Will is a mandatory requirement. Referring to the

earlier judgment in Naresh Charan Das Gupta vs. Paresh Charan Das

Gupta11, which held to the effect that merely because the witnesses did not

state that they signed the Will in the presence of the testator, it could not be

held that there was no due attestation and it would depend on the

circumstances elicited in evidence as to whether the attesting witnesses 9 (2014) 15 SCC 578 10 (2007) 7 SCC 225 11 AIR 1955 SC 363

20 signed in the presence of the testator, this Court held that the mode and

manner of proving due execution of the Will would indisputably depend

upon the facts and circumstances of each case, and it is for the propounder

of the Will to remove the suspicious circumstances.

29. In Bhagavathiammal vs. Marimuthu Ammal and others 12, a

learned Judge of the Madurai Bench of the Madras High Court observed

that the difference between Section 68 and Section 69 of the Evidence Act

is that, in the former, one attesting witness, at least, has to be called for the

purpose of proving execution and in the latter, it must be proved that the

attestation of one attesting witness, at least, is in his handwriting and the

signature of the person executing the document is in the handwriting of that

person. It was rightly observed that Section 69 of the Evidence Act does

not specify the mode of such proof and, in other words, the handwriting can

be spoken to by a person who has acquaintance with the handwriting or the

signature can be proved by comparison with the admitted handwriting or

signature of the person executing the document.

30. Applying the above edicts to the case on hand, we may note that

neither of the attesting witnesses to Ex. A10 Will Deed, viz., Pydi Appala

Suranna and B. A. Ramulu, was examined before the Trial Court, in

compliance with Section 68 of the Evidence Act. Pydi Appala Suranna was 12 2010 (2) Madras Weekly Notes (Civil) 704

21 stated to have expired by the time the trial commenced and the

whereabouts of B. A. Ramulu were not known. Therefore, Section 69 of the

Evidence Act could have been made use of to prove the Will but no witness

was examined who was familiar with the signature of either of the attesting

witnesses and who could vouch for the same or produce an admitted

signature before the Trial Court. The mere marking of Exs. C1 & C 2

affidavits was not sufficient to satisfy the requirement of Section 69 of the

Evidence Act. More so, as Balaga Sivanarayana Rao (PW 6), the scribe of

those affidavits, said that Pydi Appala Suranna did not sign Ex. A10 Will in

his presence and he could not say whether the signature therein was that

of Pydi Appala Suranna. Similarly, K. V. Ramanayya (PW 13), who attested

Ex. C2 affidavit, supposedly of Pydi Appala Suranna, said that he did not

even know Pydi Appala Suranna and, therefore, he could not vouch for his

identity. No evidence was adduced to prove the signature of the other

attesting witness, B. A. Ramulu.

31. The contention that Section 69 of the Evidence Act does not

require actual proof of the handwriting of at least one attesting witness and

proof of the signature of the executant being in that person’s handwriting

cannot be accepted. Ashutosh Samanta (supra) and Ved Mitra Verma

(supra) also did not hold so and, in any event, both are distinguishable on

22 facts. In one, there was no contest to the Will and in the other, the

Sub-Registrar himself adduced acceptable evidence in purported discharge

of the mandate of Section 69 of the Evidence Act. Presently, no such

clinching evidence has been produced to satisfy that mandate. It may be

noted that PW 11, who was from the Registration Department, admitted

that he did not know Venkubayamma personally and could not even recall

her age. Therefore, his evidence that he witnessed the signing of Ex. A10

Will has no import in establishing its genuineness and validity. Ex. A19 Will

Deed dated 26.05.1981 was marked in evidence by Nalini Kanth’s

guardian, Pasupuleti Anasuya, but it was not proved as per Section 63 of

the Evidence Act. Kaliprasad said that he had never seen it. Therefore,

merely because Kaliprasad was shown as the sole legatee therein, it

cannot be accepted as genuine. In consequence, the signatures and thumb

marks therein and available with the Registration Department, in

connection therewith, cannot be assumed to be those of Venkubayamma.

We may also note that this document was not of any particular antiquity as

it was executed on 26.05.1981, just about a year before Ex. A10 Will dated

03.05.1982. Therefore, comparison of Exs. X1 & X2 thumb marks with the

thumb marks available with the Registration Department in the context of

Ex. A19 Will does not prove anything.

23

32. For the purposes of Section 69 of the Evidence Act, it is not

enough to merely examine a random witness who asserts that he saw the

attesting witness affix his signature in the Will. The very purpose and

objective of insisting upon examination of at least one attesting witness to

the Will would be entirely lost if such requirement is whittled down to just

having a stray witness depose that he saw the attesting witness sign the

Will. The evidence of the scribe of the disputed Will (PW 6) also casts a

doubt on the identity of the executant as he specifically stated that a

woman was sitting at a distance but he could not tell whether she was

Venkubayamma and he could not also tell whether Venkubayamma had

signed the document. In effect, Ex. A10 Will was not proved in accordance

with law and it can have no legal consequence. Nalini Kanth’s claim of

absolute right and title over Venkubayamma’s properties on the strength

thereof has, therefore, no legs to stand upon and is liable to be rejected.

33. In addition thereto, the suspicious circumstances that surround

Ex. A10 Will render it highly unbelievable. Venkubayamma performed

Kaliprasad’s marriage in February, 1982, i.e., just a few months before the

alleged adoption ceremony and execution of Ex. A9 and Ex. A10. PW 2,

Nalini Kanth’s natural father, also stated so. He also said that Kaliprasad

was residing with Venkubayamma at the time of the adoption. These being

24 the admitted facts, Kaliprasad being fully disinherited under Ex. A10 Will is

surprisingly odd and opposed to normal behaviour. The disowning of her

own grandson by Venkubayamma is a suspicious circumstance that

remained unexplained. Unless there was some catastrophic incident which

estranged her from him during those two months, it is not believable that

Venkubayamma would have cast out her own grandson and excluded him

from her Will. A passing sentence in Ex. A10 Will that he became uncaring

towards her and was placing her in difficulties is not sufficient to explain this

total disinheritance of a grandson within a few months of performing his

marriage. More so, when the witnesses’ evidence confirmed that he was

with her and was on amicable terms throughout.

34. That apart, Venkubayamma stated in Ex. A10 Will that the adopted

child would perform her funeral rites, pinda pradaan and other annual

shastric ceremonies of her ancestors. As already noted earlier, the adopted

child was of less than one year age at that time and Venkubayamma was

in her 70s, if not more. If so, this expectation on her part, if at all believable,

was wholly unrealistic. Significantly, Kaliprasad stated that it was he who

performed the obsequies of Venkubayamma, his grandmother. Further, the

scribe of Ex. A10 Will (PW 6) categorically stated that the instructions for

scribing it were given by some other woman and not Venkubayamma,

25 whereas Pasupuleti Anasuya (PW 1) stated that it was Venkubayamma,

herself, who had given such instructions. So many suspicious

circumstances surrounding Ex. A10 Will make it very difficult for us to

accept and act upon the same, even if it had been proved as per law.

35. Coming to the adoption ceremony of 18.04.1982 and Ex. A9

Adoption Deed, whereunder Nalini Kanth would, in the alternative, claim a

half-share in Venkubayamma’s properties, we find that the same are also

shrouded with equally suspicious circumstances. No doubt, Ex. A9

Adoption Deed was registered and Section 16 of the Hindu Adoptions and

Maintenance Act, 1956 (for brevity, ‘the Act of 1956’), raises a presumption

in favour of a registered document relating to adoption. It reads as follows:

‘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.’

The presumption, as is clear from the provision itself, is

rebuttable. In G. Vasu vs. Syed Yaseen Sifuddin Quadri 13, a Full Bench

of the Andhra Pradesh High Court pointed out that presumptions are of two

kinds - presumptions of fact and of law. It was noted that a presumption of

fact is an inference logically drawn from one fact as to the existence of 13 AIR 1987 Andhra Pradesh 139

26 other facts and such presumptions of fact are rebuttable by evidence to the

contrary. It was also held that presumptions of law may be either

irrebuttable, so that no evidence to a contrary may be given, or rebuttable,

and a rebuttable presumption of law is a legal rule to be applied by the

Courts in the absence of conflicting evidence. This view was affirmed by

this Court in Bharat Barrel & Drum Manufacturing Company vs. Amin

Chand Payrelal14 and it was held that in order to disprove a presumption,

such facts and circumstances have to be brought on record, upon

consideration of which, the Court may either believe that the consideration

did not exist or its non-existence was so probable that a prudent man

would, under the circumstances of the case, act upon the plea that it did

not exist.

36. In this regard, we may also note that Section 11 of the Act of 1956

stipulates the conditions to be complied with to constitute a valid adoption

and, to the extent relevant, it reads as under:

‘11. Other conditions for a valid adoption. - In every adoption, the following conditions must be complied with: ―

(i) to (v) ….;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:

14 (1999) 3 SCC 35

27 Provided that the performance of datta homam shall not be essential to the validity of adoption’

37. We may now take note of relevant case law. In Laxmibai (Dead)

through LRs. and another vs. Bhagwantbuva (Dead) through LRs. and

others15, this Court held that the mere signature or thumb impression on a

document is not adequate to prove the contents thereof but, in a case

where a person who has given his son in adoption appears in the witness

box and proves the validity of the said document, the Court ought to accept

the same taking into consideration the presumption under Section 16 of the

Act of 1956. Ergo, the proving of the validity of the document is a must.

38. Much earlier, in Kishori Lal vs. Mst. Chaltibai16, a 3-Judge Bench

of this Court held that, as an adoption results in changing the course of

succession, it is necessary that the evidence to support it should be such

that it is free from all suspicions of fraud and so consistent and probable as

to leave no occasion for doubting its truth. On facts, the Bench found that

no invitations were sent to the brotherhood, friends or relations and no

publicity was given to the adoption, rendering it difficult to believe.

39. In Govinda vs. Chimabai and others 17, a Division Bench of the

Mysore High Court observed that the mere fact that a deed of adoption has 15 (2013) 4 SCC 97 16 AIR 1959 SC 504 17 AIR 1968 Mysore 309

28 been registered cannot be taken as evidence of proof of adoption, as an

adoption deed never proves an adoption. It was rightly held that the factum

of adoption has to be proved by oral evidence of giving or taking of the

child and that the necessary ceremonies, where they are necessary to be

performed, were carried out in accordance with shastras.

40. In Padmalav Achariya and another vs. Srimatyia Fakira Debya

and others18, the Privy Council found that a cloud of suspicion rested upon

an alleged second adoption and the factum of the second adoption was

sought to be proved on the basis of evidence of near relatives who were

also partisan, which made it unsafe to act upon their testimonies. The Privy

Council held that both the adoptions were most improbable in themselves

and were not supported by contemporaneous evidence.

41. In Jai Singh vs. Shakuntala19, this Court noted the statutory

presumption envisaged by Section 16 of the Act of 1956 and observed that

though the legislature had used ‘shall’ instead of any other word of lesser

significance, the inclusion of the words ‘unless and until it is disproved’

appearing at the end of the statutory provision makes the situation not that

rigid but flexible enough to depend upon the evidence available on record

in support of the adoption. This Court further noted that it is a matter of

18 AIR 1931 Privy Council 81 19 (2002) 3 SCC 634

29 grave significance by reason of the factum of adoption and displacement of

the person adopted from the natural succession - thus onus of proof is

rather heavy. This Court held that the statute allowed some amount of

flexibility, lest it turns out to be solely dependent on a registered adoption

deed. The reason for inclusion of the words ‘unless and until it is

disproved’, per this Court, have to be ascertained in proper perspective and

as such, the presumption cannot but be said to be a rebuttable

presumption. This Court further held that the registered instrument of

adoption presumably stands out to be taken to be correct but the Court is

not precluded from looking into it upon production of some evidence contra

the adoption and the Court can always look into such evidence. This Court

further noted the mandate of Section 11 (vi) of the Act of 1956 and held that

the ‘give and take in adoption’ is a requirement which stands as a sine qua

non for a valid adoption.

42. In Mst. Deu and others vs. Laxmi Narayan and others 20, this

Court observed that in view of Section 16 of the Act of 1956, whenever any

document registered under law is produced before the Court purporting to

record an adoption made and is signed by the persons mentioned

therein, the Court should presume that the adoption has been made in

compliance with the provisions of the said statute, unless and until it is 20 (1998) 8 SCC 701

30 disproved. It was further held that in view of Section 16 of the Act of 1956, it

is open to the persons who challenge the registered deed of adoption to

disprove the same by taking independent proceedings.

43. In Lakshman Singh Kothari vs. Rup Kanwar (Smt) alias Rup

Kanwar Bai21, having referred to texts on Hindu Law, this Court observed:

‘10. The law may be briefly stated thus: Under the Hindu law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object, it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.’

44. In M. Vanaja vs. M. Sarla Devi (Dead)22, this Court took note of the

relevant provisions of the Act of 1956 and held that a plain reading of the

said provisions made it clear that compliance with the conditions in Chapter

1 of the Act of 1956 is mandatory for an adoption to be treated as valid and

that the two important conditions mentioned in Sections 7 and 11 of the Act 21 AIR 1961 SC 1378 22 (2020) 5 SCC 307

31 of 1956 are the consent of the wife before a male Hindu adopts a child and

the proof of the ceremony of actual giving and taking in adoption.

45. In Dhanno wd/o Balbir Singh vs. Tuhi Ram (Died) represented by

his LRs.23, a learned Judge of the Punjab & Haryana High Court, faced with

the argument that Section 16 of the Act of 1956 required a registered

adoption deed to be believed, held that the presumption thereunder, if any,

is rebuttable and by merely placing the document on record without proving

the ceremony of due adoption, it could not be said that there was a valid

adoption. The learned Judge rightly noted that the factum of adoption must

be proved in the same way as any other fact and such evidence in support

of the adoption must be sufficient to satisfy the heavy burden that rests

upon any person who seeks to displace the natural succession by alleging

an adoption.

46. Viewed in the backdrop of the above legal principles, as Ex. A9

Adoption Deed was registered, the presumption under Section 16 of the Act

of 1956 attached to it and it was for Kaliprasad to rebut that presumption.

We find that he did so more than sufficiently. Mere registration of Ex. A9

Adoption Deed did not absolve the person asserting such adoption from

proving that fact by cogent evidence and the person contesting it from

adducing evidence to the contrary. It is in this respect that various 23 AIR 1996 P & H 203

32 suspicious circumstances attached to the adoption ceremony of 18.04.1982

assume significance. It is an admitted fact that Venkubayamma was

residing ordinarily at Srikakulam, which is at a distance (98 miles/150 kms)

from Berhampur. While so, PW 2, himself, stated that she did not invite any

of her relations from Srikakulam to attend the adoption ceremony at

Berhampur. Normally, such occasions would not be kept secret or

confidential as an adoption would usually be made with much pomp and

celebration. The clandestine manner in which the alleged adoption is stated

to have taken place raises a doubt but the same has not been adequately

explained. Further, as already noted supra, no evidence was adduced to

prove that relations between Venkubayamma and Kaliprasad, her

grandson, had fallen out. The document also does not record any reasons

as to why Venkubayamma was not happy with Kaliprasad, whose marriage

she had performed in February 1982, just a few months earlier.

47. Pertinent to note, Pasupuleti Anasuya (PW 1) who was to play a

pivotal role as the guardian of the adopted child in the event of

Venkubayamma’s death, seems to have been absent at the adoption

ceremony and no reason or explanation worth the name has been offered

therefor. She, herself, admitted that she was not present when the actual

‘giving and taking of the child in adoption’ took place and that she is not

33 seen in Exs. A2 to A4 photographs. Significantly, she never stated in clear

terms that she was actually present at that time. Her brothers (PWs 2 and

3) also did not vouch for her presence at the adoption. If she was to play

such an important role in the adopted child’s life, her absence at the

ceremony and in the photographs speaks volumes.

48. PW 4 (the photographer), PW 7 (the purohit) and PW 14 (an

identifying witness) were examined in addition to the family members, viz.,

PWs 2 and 3, to speak of their actually seeing the giving and taking of the

child in adoption, but we find that their depositions are also not free from

doubt. The photographs allegedly taken at the time of the adoption

ceremony, viz., Exs. A2 to A4, are also not convincing. PW 12 and PW 14,

who stated that the woman in the photographs was Venkubayamma,

conceded that she did not look like a woman aged 70 years. The identifying

witness (PW 14) himself stated that the woman in the photographs looked

about 45 years old. Two of the tenants of Venkubayamma, viz., DW 2 and

DW 3, said that the woman in the photographs was not Venkubayamma.

49. Though the High Court opined that the woman in Exs. A2 to A4

photographs was not Venkubayamma for the reason that Venkubayamma

was a woman of advanced age and it was difficult to believe that she would

have dyed her hair at that age, the same cannot be a deciding factor by

34 itself. However, the issue, presently, is not whether Venkubayamma would

have dyed her hair at the age of 70+ years but whether the dark-haired

woman in Exs. A2 to A4 photographs was Venkubayamma at all. In this

regard, as already noted above, it was not just the color of her hair that

raised a question. Doubt arises, not only on that count, but even as to the

age of the woman in the photographs, going by the witnesses’ depositions.

PW 12 had stated that Venkubayamma was about 70 years of age in the

year 1970 itself, whereas Exs. A9 and A10 record her age as 70 years in

1982. Either way, the woman in Exs. A2 to A4 did not look close to those

ages. In effect, there is no clinching evidence to prove that the woman in

the photographs was, in fact, Venkubayamma.

50. The actual ‘giving and taking’ of the child in adoption, being an

essential requisite under Section 11(vi) of the Act of 1956, we find that

there is no convincing evidence of that ‘act’ also in the case on hand.

Interestingly, there are no pictures of the actual ‘giving and taking’ of the

child in adoption. In Exs. A2 and A3, the purohit (PW 7) is seen standing or

sitting behind the others and the same cannot be taken to be during the

ceremony of ‘giving and taking’, as he would have stood/sat in front of

them, chanting mantras and incantations as per shastras. Ex. A4 is a group

photograph. Further, there are no photographs of the datta homam, though

35 PW 7 claimed that he had performed the same. Even though it is no longer

considered an essential ceremony, it is of significance when performed,

and would have been captured for posterity by taking pictures. Strangely,

though a professional photographer (PW 4) was stated to have been

engaged for the purpose of taking pictures at the adoption ceremony, he

took only three photographs and no more. This parsimony is not explained.

Further, PW 1 producing and marking Ex. A8 receipt, supposedly issued by

PW 4 to the temple, with no explanation as to how it came into her

possession, also does not inspire confidence.

51. More importantly, the evidence of the purohit (PW 7), who is stated

to have conducted the ceremonies, leads to a doubt as to the very adoption

having taken place. The adoption ceremony is stated to have been

performed at Sri Sri Raghunadha Swamy Temple at Bhapur in Berhampur

but as per PW 7, Raghunadha Swamy Temple is not even in Bhapur but in

Chandramanipeta and only Ramalingeswara Swamy and Mukteswara

Swamy Temples are at Bhapur. Though, this discrepancy is sought to be

explained at this stage, the fact remains that there was no re-examination

of PW 7 at that time to clarify this telling aspect.

52. That apart, Ex. A9 Adoption Deed is scribed in English but it does

not even contain a recital that the contents thereof were read over and

36 explained in Telugu to the executant. No evidence has been let in for the

Court to deduce that Venkubayamma was conversant with English

language. Further, and more significantly, in the second page of Ex. A9

Adoption Deed, Venkubayamma’s signature reads thus: “Moturu

bayammma’ and, thereafter, the word ‘Venku” was interjected above.

Underneath that signature, the signature ‘Moturu Venkubayamma’ is again

affixed. It has come on record that Venkubayamma was in the habit of

signing in English as well as in Telugu. If so, it is strange that she would not

have signed her own name correctly on the second page and would have

left out ‘Venku’ altogether. Further, the misspelling of ‘bayamma’ as

‘bayammma’ is also strange and significant.

53. Ex. A9 Adoption Deed records the age of Venkubayamma as 70

years and states that she was desirous of taking a male child in adoption

as she had no male issues. The document also records that the adoptive

child would perform the annual shraddha ceremonies and offering of Pinda

and water, as her natural son, to her ancestors. Nalini Kanth was aged less

than a year when this adoption deed was executed whereas the adoptive

mother, going by the document itself, was aged 70 years. Being of that age,

it is strange that Venkubayamma would have expected this toddler to

perform her obsequies after her death and such other ceremonies for her

37 and her ancestors. Further, it is difficult to believe that a woman of such

advanced years would willingly take on the responsibility of caring for an

infant at that age.

54. Last but not the least, Ex. A9 Adoption Deed mentions that the

adoption took place at Sri Sri Raghunadha Swamy Temple but Ex. A10 Will

records that Venkubayamma adopted the child with the consent of his

parents in the presence of relations at the house of his parents at

Chandramanipeta, Berhampur. Therefore, as per this document, the

adoption took place, not at a temple, but at the house of the natural

parents, i.e., PW 2’s house. There is, thus, a contradiction between Ex. A9

Adoption Deed and Ex. A10 Will as to the place where the adoption took

place. An attempt was made to discredit the scribe (PW 6) in this regard,

but this disparity in the two documents which were drawn up within a short

span of time speaks for itself.

55. On the above analysis, we are of the opinion that the adoption of

Nalini Kanth by Venkubayamma on 18.04.1982 is not proved in accordance

with law despite the registration of Ex. A9 Adoption Deed dated 20.04.1982.

The very adoption, itself, is not believable, given the multitude of suspicious

circumstances surrounding it. Nalini Kanth cannot, therefore, be treated as

her heir by adoption. Further, as Ex. A10 Will dated 03.05.1982 was also

38 not proved in accordance with law, it does not create any right in his favour.

In consequence, Nalini Kanth is not entitled to claim any right or share in

Venkubayamma’s properties. The findings of the High Court to that effect,

albeit for reasons altogether different, therefore, do not warrant

interference.

The judgment and decree of the High Court is confirmed.

The appeal is accordingly dismissed.

Costs of this appeal, their own.

……………………….., J (C.T. RAVIKUMAR)

……………………….., J (SANJAY KUMAR) November 20, 2023;

New Delhi.

39