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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 ..... 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me even when the opposite party does not deny the execution of the Will. 22. Long ago, in H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443, a 3-Judge Bench of this Court noted that there is an important 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Anr. v. Braja Kishore Nanda and Ors. (2007) 9 SCC 728, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 v. Marimuthu Ammal and Ors. 2010 (2) Madras Weekly Notes (Civil) 704, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 16 of the Act of 1956. Ergo, the proving of the validity of the document is a must. 38. Much earlier, in Kishori Lal v. Mst. Chaltibai AIR 1959 SC 504, 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 v. Chimabai and Ors. AIR 1968 Mysore 309, a Division Bench of the Mysore High Court observed that the mere fact that a deed of adoption has 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 Anr. v. Srimatyia Fakira Debya and Ors. AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isproved. 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 v. Rup Kanwar (Smt) alias Rup Kanwar Bai AIR 1961 SC 1378, 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 nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 seen in Exs. A2 to A4 photographs. Significantly, she never stated in clear terms that she was act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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