Full Judgment Text
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
J U D G M E N T
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
Date: 2023.11.20
11:41:46 IST
Reason:
declaratory and consequential reliefs in respect of Venkubayamma’s
properties. The learned Principal Subordinate Judge, Srikakulam, held in
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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
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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
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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
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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
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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
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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
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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
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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
1
mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam , 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
2
Popat vs. Pragnaben Jamnadas Kataria and others .
More recently, in Ramesh Verma (Dead) through LRs . vs. Lajesh
21.
3
(Dead) by LRs
Saxena . and another , 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
4
and others , 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.’
6
24. Earlier, in Bhagat Ram and another vs. Suresh and others , 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
7
Nanda and others , 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
8
others vs. SM. Ranjan Bala Dasi and others , 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.
9
27. On the same lines, in Ved Mitra Verma vs. Dharam Deo Verma ,
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.
10
28. However, in Apoline D’ Souza vs. John D’ Souza , 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
11
Gupta , 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.
12
29. In Bhagavathiammal vs. Marimuthu Ammal and others , 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
13
rebuttable. In G. Vasu vs. Syed Yaseen Sifuddin Quadri , 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
14
Chand Payrelal 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
15
others , 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.
16
38. Much earlier, in Kishori Lal vs. Mst. Chaltibai , 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.
17
39. In Govinda vs. Chimabai and others , 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
18
and others , 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.
19
41. In Jai Singh vs. Shakuntala , 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.
20
42. In Mst. Deu and others vs. Laxmi Narayan and others , 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
21
Kanwar Bai , 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.’
22
44. In M. Vanaja vs. M. Sarla Devi (Dead) , 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
23
his LRs . , 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