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TMI Blog2023 (11) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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, 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. 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 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 photog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 - Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ony. 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 photograph, she was seen holding a child in her lap. He stated in his cross-examination that Kaliprasad was with Venkubayamma since ten years. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire 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 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was duly and validly executed and that cannot be done by simply proving that the signature on 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 v. Pragnaben Jamnadas Kataria and Ors. (2008) 15 SCC 365. 21. More recently, in Ramesh Verma (Dead) through LRs. v. Lajesh Saxena (Dead) by LRs. and Anr. (2017) 1 SCC 257, 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 remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anr. v. Suresh and Ors. (2003) 12 SCC 35, this Court obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Will and that is a distinguishing factor when compared with the case on hand. 27. On the same lines, in Ved Mitra Verma v. Dharam Deo Verma (2014) 15 SCC 578, 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 v. John D' Souza (2007) 7 SCC 225, 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 v. Paresh Charan Das Gupta AIR 1955 SC 363, 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 signed in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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, whereas Pasupuleti Anasuya (PW 1) stated that it was Venkubayamma, herself, who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 Anr. v. Bhagwantbuva (Dead) through LRs. and Ors. (2013) 4 SCC 97, 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 Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. Laxmi Narayan and Ors. (1998) 8 SCC 701, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it was difficult to believe that she would have dyed her hair at that age, the same cannot be a deciding factor by 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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