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 declaratory and consequential reliefs in respect of Venkubayamma’s properties. The learned Principal Subordinate Judge, Srikakulam, held in 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. (Para 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. (Para 2)
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. (Para 3)
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 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. (Para 17)
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:
Trite to state, mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of the above legal mandate. (Para 20)
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. (Para 31)
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. (Para 32)
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 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. (Para 33)
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 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. (Para 34)
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. (Para 35)
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. (Para 35(16))
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 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. (Para 46)
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. (Para 53)
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. (Para 55)
SUPREME COURT OF INDIA
2023 STPL(Web) 428 SC
[2023 INSC 1004]
Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead, Through Lrs.)
Civil Appeal No. 2435 of 2010-Decided on 20-11-2023
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