MOTURU NALINI KANTHversusGAINEDI KALIPRASAD (DEAD, THROUGH LRS.)

               [2023] 16 S.C.R. 644 : 2023 INSC 1004



                           CASE DETAILS

                     MOTURU NALINI KANTH
                                   v.
       GAINEDI KALIPRASAD (DEAD, THROUGH LRS.)
                    (Civil Appeal No. 2435 of 2010)
                        NOVEMBER 20, 2023
        [C.T. RAVIKUMAR AND SANJAY KUMAR, JJ.]
                            HEADNOTES
      Issue for consideration: Suit filed by the appellant (then a minor)
through his guardian claiming right and title over the properties of late
‘V’, who as per his claim had adopted him, under a registered Will.
Trial Court decreed the suit. High Court whether justified in allowing
the appeal filed by V’s grandson, ‘GK’.
     Evidence Act, 1872 – ss.68, 69 – Legal requirements to prove
a Will – Suit was filed by the appellant, through his guardian, for
declaration of his title to the suit properties belonging to late ‘V’ and
for recovery of their possession from V’s grandson-‘GK’ (who was
her grandson through her deceased daughter) – It was his case that
he was adopted by ‘V’ by a registered Adoption Deed – Appellant was
the son of V’s brother’s son – As per him ‘V’ had executed registered
Will bequeathing all her properties to him and canceled her earlier
Will, executed in favour of ‘GK’ – Trial Court held in favour of the
appellant – Decision reversed by High Court:
      Held: For the purposes of s.69, 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 –
Neither of the attesting witnesses to the Will were examined before
the Trial Court, in compliance with s.68 – Therefore, s.69 could have
been made use of to prove the Will but no witness was examined who
                                  644
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 645
                THROUGH LRS.)

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 – Will not proved in accordance with law and
has no legal consequence – Disowning of her own grandson by ‘V’
under Will is a suspicious circumstance that remained unexplained
– Too many suspicious circumstances surrounding the Will make it
very difficult to accept and act upon the same, even if it had been
proved as per law – Further, adoption of the appellant is not proved
in accordance with law despite the registration of Adoption Deed
– On facts, the very adoption, itself, is not believable, given the
multitude of suspicious circumstances surrounding it – Therefore,
appellant cannot be treated as V’s heir by adoption thus, not entitled
to claim any right or share in her properties – Findings of the High
Court to that effect, albeit for reasons altogether different, do not
warrant interference – Judgment of the High Court confirmed – Indian
Succession Act, 1925 – s.63 – Hindu Adoptions and Maintenance Act,
1956 – s.16. [Paras 30, 32, 55]
     Hindu Adoptions and Maintenance Act, 1956 – ss.16, 11 –
Presumption u/s.16 in favour of a registered document relating
to adoption, rebuttable – Appellant claimed a half-share in V’s
properties relying on the adoption ceremony and the registered
Adoption Deed:
      Held: The presumption is rebuttable – On facts, the adoption
ceremony and the Adoption Deed are shrouded with equally suspicious
circumstances – As the Adoption Deed was registered, the presumption
u/s.16 attached to it and it was for ‘GK’ (V’s grandson) to rebut that
presumption, who did so more than sufficiently – Mere registration of
the 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 assume
significance – The actual ‘giving and taking’ of the child in adoption, is
an essential requisite u/s.11(vi) however, there is no convincing evidence
of that ‘act’ also in the case on hand – There are no pictures of the actual
‘giving and taking’ of the child in adoption. [Paras 35, 46 and 50]
646         SUPREME COURT REPORTS                   [2023] 16 S.C.R.



      LIST OF CITATIONS AND OTHER REFERENCES
     Ashutosh Samanta (Dead) by LRs. And others vs. SM. Ranjan
Bala Dasi and others (2023) SCC OnLine SC 255; Ved Mitra Verma vs.
Dharam Deo Verma (2014) 15 SCC 578 – distinguished.
     Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 SCC
91: [2002] 5 Suppl. SCR 175; Ramesh Verma (Dead) through LRs .
vs. Lajesh Saxena (Dead) by LRs . and another (2017) 1 SCC 257; H.
Venkatachala Iyengar vs. B.N. Thimmajamma and others AIR 1959 SC
443: [1959] Suppl. SCR 426; Jagdish Chand Sharma vs. Narain Singh
Saini through LRs. and others (2015) 8 SCC 615: [2015] 6 SCR 397;
Bhagat Ram and another vs. Suresh and others (2003) 12 SCC 35: [2003]
6 Suppl. SCR 216; Benga Behera and another vs. Braja Kishore Nanda
and others (2007) 9 SCC 728: [2007] 6 SCR 853 – relied on.
     Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and
others (2008) 15 SCC 365: [2008] 17 SCR 1500; Apoline D’ Souza
vs. John D’ Souza (2007) 7 SCC 225: [2007] 6 SCR 1103; Naresh
Charan Das Gupta vs. Paresh Charan Das Gupta AIR 1955 SC 363:
[1955] SCR 1035; Bhagavathiammal vs. Marimuthu Ammal and others
2010 (2) Madras Weekly Notes (Civil) 704; G. Vasu vs. Syed Yaseen
Sifuddin Quadri AIR 1987 Andhra Pradesh 139; Bharat Barrel & Drum
Manufacturing Company vs. Amin Chand Payrelal (1999) 3 SCC 35:
[1999] 1 SCR 704; Laxmibai (Dead) through LRs. and another vs.
Bhagwantbuva (Dead) through LRs . And others (2013) 4 SCC 97: [2013]
1 SCR 632; Kishori Lal vs. Mst. Chaltibai AIR 1959 SC 504: [1959]
Suppl. SCR 698; Jai Singh vs. Shakuntala (2002) 3 SCC 634; Mst. Deu
and others vs. Laxmi Narayan and others (1998) 8 SCC 701; Lakshman
Singh Kothari vs. Rup Kanwar (Smt) alias Rup Kanwar Bai AIR 1961
SC 1378: [1962] SCR 477; M. Vanaja vs. M. Sarla Devi (Dead) (2020)
5 SCC 307 – referred to.
     Govinda vs. Chimabai and others AIR 1968 Mysore 309; Padmalav
Achariya and another vs. Srimatyia Fakira Debya and others AIR
1931 Privy Council 81; Dhanno wd/o Balbir Singh vs. Tuhi Ram (Died)
represented by his LRs.AIR 1996 P & H – referred to..
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 647
                THROUGH LRS.)


       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.2435 of 2010.
      From the Judgment and Order dated 11.12.2006 of the High Court of
A. P. at Hyderabad in AS No.2695 of 1989.
     Appearances:
      Basant R., Sr. Adv., Y. Raja Gopala Rao, Akshay Sahay, Ms. Y. Vismai
Rao, Y. Ramesh, Dhuli Gopi Krishna, Aarsh Thakkar, Sharat Gopal, Advs.
for the Appellant.
    Thomas P. Joseph, Sr. Adv., M/s Devasa & Co., Shekhar G. Devasa,
Manish Tiwari, Thasmitha Muthanna, Tinny Thomas, Advs. for the
Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     SANJAY KUMAR, J.
      1. Moturu Nalini Kanth, then a minor, claimed absolute right and title
over the properties of late Venkubayamma under registered Will Deed dated
03.05.1982. It was also claimed that he was adopted by her, as evidenced
by registered Adoption Deed dated 20.04.1982. Nalini Kanth was not even
a year old at that time, as he was born on 10.07.1981. O.S. No. 113 of
1983 was filed by Nalini Kanth, through his guardian, for 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.
     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
648             SUPREME COURT REPORTS                      [2023] 16 S.C.R.


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
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?’
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 649
        THROUGH LRS.) [SANJAY KUMAR, J.]

     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 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.
650          SUPREME COURT REPORTS                       [2023] 16 S.C.R.


      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 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
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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 651
        THROUGH LRS.) [SANJAY KUMAR, J.]

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 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 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.
652          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


      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 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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 653
        THROUGH LRS.) [SANJAY KUMAR, J.]

a child, in Exs. A2 and A3 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 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
654          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


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 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
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). …….
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 655
        THROUGH LRS.) [SANJAY KUMAR, J.]

     (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 Will, which
     has been registered in accordance with the provisions of the Indian
     Registration Act, 1908 (16 of 1908), unless its execution by the person
     by whom it purports to have been executed is specifically denied.
     Section 69. Proof where no attesting witness found. – If no such
     attesting witness can be found, or if the document purports to have been
     executed in the United Kingdom, it must be proved that the attestation
     of one attesting witness at least is in his handwriting, and that the
     signature of the person executing the document is in the handwriting
     of that person.’
     20. Trite to state, mere registration of a Will does not attach to it a
stamp of validity and it must still be proved in terms of the above legal
mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam1, this
Court held that the requirements in clauses (a), (b) and (c) of Section 63 of


1   (2003) 2 SCC 91
656            SUPREME COURT REPORTS                      [2023] 16 S.C.R.


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 the Will was
that of the testator, as the propounder must also prove that the attestations
were made properly, as required by Section 63(c) of the Succession Act.
These principles were affirmed in Lalitaben Jayantilal Popat vs. Pragnaben
Jamnadas Kataria and others2.
      21. More recently, in Ramesh Verma (Dead) through LRs. vs. Lajesh
Saxena (Dead) by LRs. and another 3, this Court observed that a Will,
like any other document, is to be proved in terms of the provisions of the
Evidence Act. It was held that the propounder of the Will is called upon
to show by satisfactory evidence that the Will was signed by the testator,
that the testator at the relevant time was in a sound and disposing state of
mind, that he understood the nature and effect of the disposition and put his
signature to the document of his own free will and the document shall not
be used as evidence until one attesting witness at least has been called for
the purpose of proving its execution. It was noted that this is the mandate
of Section 68 of the Evidence Act and the position would remain the same
even when the opposite party does not deny the execution of the Will.
      22. Long ago, in H. Venkatachala Iyengar vs. B.N. Thimmajamma
and others4, a 3-Judge Bench of this Court noted that there is an important
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.


2     (2008) 15 SCC 365
3     (2017) 1 SCC 257
4     AIR 1959 SC 443
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 657
        THROUGH LRS.) [SANJAY KUMAR, J.]

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)
through LRs. and others5, 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 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


5   (2015) 8 SCC 615
658            SUPREME COURT REPORTS                          [2023] 16 S.C.R.


       Section 68 of the 1872 Act. The distinction between failure on the
       part of an attesting witness to prove the execution and attestation of
       a will and his or her denial of the said event or failure to recollect the
       same, has to be essentially maintained. Any unwarranted indulgence,
       permitting extra liberal flexibility to these two stipulations, would
       render the predication of Section 63 of the Act and Section 68 of the
       1872 Act, otiose. The propounder can be initiated to the benefit of
       Section 71 of the 1872 Act only if the attesting witness/witnesses, who
       is/are alive and is/are produced and in clear terms either denies/deny
       the execution of the document or cannot recollect the said incident.’
     24. Earlier, in Bhagat Ram and another vs. Suresh and others6, 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 been registered in accordance with the
       provisions of the Indian Registration Act, 1908 unless its execution by
       the person by whom it purports to have been executed is specifically
       denied. However, a Will is excepted from the operation of the proviso.
       A Will has to be proved as required by the main part of Section 68.’
     25. Thereafter, in Benga Behera and another vs. Braja Kishore Nanda
and others7, this Court held thus:
       ‘40. It is now well settled that requirement of the proof of execution of
       a will is the same as in case of certain other documents, for example gift
       or mortgage. The law requires that the proof of execution of a will has
       to be attested at least by two witnesses. At least one attesting witness
       has to be examined to prove execution and attestation of the will.



6     (2003) 12 SCC 35
7     (2007) 9 SCC 728
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 659
        THROUGH LRS.) [SANJAY KUMAR, J.]

      Further, it is to be proved that the executant had signed and/or given
      his thumb impression in presence of at least two attesting witnesses
      and the attesting witnesses had put their signatures in presence of the
      executant.’
      26. Much more recently, in Ashutosh Samanta (Dead) by LRs. and
others vs. SM. Ranjan Bala Dasi and others8, 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 administration, this Court held that
there could be only one conclusion, i.e., that the Will was duly executed
and the propounder was successful in proving it. Notably, there was no
contest to the Will and that is a distinguishing factor when compared with
the case on hand.
      27. On the same lines, in Ved Mitra Verma vs. Dharam Deo Verma9,
having found that the attesting witnesses had died, this Court held that the
examination of the Sub-Registrar, who had registered the Will and who
spoke of the circumstances in which the attesting witnesses as well as the
testator had signed on the document, would be sufficient to prove the Will
in terms of Section 69 of the Evidence Act.
      28. However, in Apoline D’ Souza vs. John D’ Souza10, this Court
had noted that Section 68 of the Evidence Act provides for the mode and
manner through which execution of a Will is to be proved and held that proof
of attestation of a Will is a mandatory requirement. Referring to the earlier
judgment in Naresh Charan Das Gupta vs. Paresh Charan Das Gupta11, which
held to the effect that merely because the witnesses did not state that they
signed the Will in the presence of the testator, it could not be held that there



8    (2023) SCC OnLine SC 255
9    (2014) 15 SCC 578
10   (2007) 7 SCC 225
11   AIR 1955 SC 363
660           SUPREME COURT REPORTS                          [2023] 16 S.C.R.


was no due attestation and it would depend on the circumstances elicited in
evidence as to whether the attesting witnesses signed in the presence of the
testator, this Court held that the mode and manner of proving due execution
of the Will would indisputably depend upon the facts and circumstances of
each case, and it is for the propounder of the Will to remove the suspicious
circumstances.
      29. In Bhagavathiammal vs. Marimuthu Ammal and others12, 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
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


12 2010 (2) Madras Weekly Notes (Civil) 704
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 661
        THROUGH LRS.) [SANJAY KUMAR, J.]

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 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.
      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
662          SUPREME COURT REPORTS                          [2023] 16 S.C.R.


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
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, 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.
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 663
        THROUGH LRS.) [SANJAY KUMAR, J.]

      35. Coming to the adoption ceremony of 18.04.1982 and Ex. A9
Adoption Deed, where under Nalini Kanth would, in the alternative, claim
a half-share in Venkubayamma’s properties, we find that the same are also
shrouded with equally suspicious circumstances. No doubt, Ex. A9 Adoption
Deed was registered and Section 16 of the Hindu Adoptions and Maintenance
Act, 1956 (for brevity, ‘the Act of 1956’), raises a presumption in favour of
a registered document relating to adoption. It reads as follows:
          ‘16. Presumption as to registered documents relating to
     adoption - Whenever any document registered under any law for the
     time being in force is produced before any court purporting to record
     an adoption made and is signed by the person giving and the person
     taking the child in adoption, the court shall presume that the adoption
     has been made in compliance with the provisions of this Act unless
     and until it is disproved.’
      The presumption, as is clear from the provision itself, is rebuttable.
In G. Vasu vs. Syed Yaseen Sifuddin Quadri13, 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 other facts
and such presumptions of fact are rebuttable by evidence to the contrary. It
was also held that presumptions of law may be either irrebuttable, so that
no evidence to a contrary may be given, or rebuttable, and a rebuttable
presumption of law is a legal rule to be applied by the Courts in the absence of
conflicting evidence. This view was affirmed by this Court in Bharat Barrel
& Drum Manufacturing Company vs. Amin Chand Payrelal 14 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:


13 AIR 1987 Andhra Pradesh 139
14 (1999) 3 SCC 35
664           SUPREME COURT REPORTS                         [2023] 16 S.C.R.


      ‘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 another vs. Bhagwantbuva (Dead) through LRs. and
others15, this Court held that the mere signature or thumb impression on a
document is not adequate to prove the contents thereof but, in a case where
a person who has given his son in adoption appears in the witness box and
proves the validity of the said document, the Court ought to accept the same
taking into consideration the presumption under Section 16 of the Act of
1956. Ergo, the proving of the validity of the document is a must.
       38. Much earlier, in Kishori Lal vs. Mst. Chaltibai16, a 3-Judge Bench
of this Court held that, as an adoption results in changing the course of
succession, it is necessary that the evidence to support it should be such that
it is free from all suspicions of fraud and so consistent and probable as to
leave no occasion for doubting its truth. On facts, the Bench found that no
invitations were sent to the brotherhood, friends or relations and no publicity
was given to the adoption, rendering it difficult to believe.
     39. In Govinda vs. Chimabai and others17, 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


15 (2013) 4 SCC 97
16 AIR 1959 SC 504
17 AIR 1968 Mysore 309
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 665
        THROUGH LRS.) [SANJAY KUMAR, J.]

of adoption has to be proved by oral evidence of giving or taking of the
child and that the necessary ceremonies, where they are necessary to be
performed, were carried out in accordance with shastras.
      40. In Padmalav Achariya and another vs. Srimatyia Fakira Debya
and others18, the Privy Council found that a cloud of suspicion rested upon
an alleged second adoption and the factum of the second adoption was
sought to be proved on the basis of evidence of near relatives who were
also partisan, which made it unsafe to act upon their testimonies. The Privy
Council held that both the adoptions were most improbable in themselves
and were not supported by contemporaneous evidence.
      41. In Jai Singh vs. Shakuntala19, this Court noted the statutory
presumption envisaged by Section 16 of the Act of 1956 and observed that
though the legislature had used ‘shall’ instead of any other word of lesser
significance, the inclusion of the words ‘unless and until it is disproved’
appearing at the end of the statutory provision makes the situation not
that rigid but flexible enough to depend upon the evidence available on
record in support of the adoption. This Court further noted that it is a
matter of 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.




18 AIR 1931 Privy Council 81
19 (2002) 3 SCC 634
666           SUPREME COURT REPORTS                          [2023] 16 S.C.R.


     42. In Mst. Deu and others vs. Laxmi Narayan and others20, 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 disproved. It
was further held that in view of Section 16 of the Act of 1956, it is open to
the persons who challenge the registered deed of adoption to disprove the
same by taking independent proceedings.
    43. In Lakshman Singh Kothari vs. Rup Kanwar (Smt) alias Rup
Kanwar Bai21, having referred to texts on Hindu Law, this Court observed:
      ‘10. The law may be briefly stated thus: Under the Hindu law, whether
      among the regenerate caste or among Sudras, there cannot be a valid
      adoption unless the adoptive boy is transferred from one family to
      another and that can be done only by the ceremony of giving and
      taking. The object of the corporeal giving and receiving in adoption is
      obviously to secure due publicity. To achieve this object, it is essential
      to have a formal ceremony. No particular form is prescribed for the
      ceremony, but the law requires that the natural parent shall hand
      over the adoptive boy and the adoptive parent shall receive him. The
      nature of the ceremony may vary depending upon the circumstances
      of each case. But a ceremony there shall be, and giving and taking
      shall be part of it. The exigencies of the situation arising out of
      diverse circumstances necessitated the introduction of the doctrine of
      delegation; and, therefore, the parents, after exercising their volition to
      give and take the boy in adoption, may both or either of them delegate
      the physical act of handing over the boy or receiving him, as the case
      may be, to a third party.’
      44. In M. Vanaja vs. M. Sarla Devi (Dead)22, this Court took note
of the relevant provisions of the Act of 1956 and held that a plain reading
of the said provisions made it clear that compliance with the conditions in


20 (1998) 8 SCC 701
21 AIR 1961 SC 1378
22 (2020) 5 SCC 307
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 667
        THROUGH LRS.) [SANJAY KUMAR, J.]

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 of 1956 are the consent of the wife before a male Hindu adopts a
child and the proof of the ceremony of actual giving and taking in adoption.
      45. In Dhanno wd/o Balbir Singh vs. Tuhi Ram (Died) represented
by his LRs.23, a learned Judge of the Punjab & Haryana High Court, faced
with the argument that Section 16 of the Act of 1956 required a registered
adoption deed to be believed, held that the presumption thereunder, if any,
is rebuttable and by merely placing the document on record without proving
the ceremony of due adoption, it could not be said that there was a valid
adoption. The learned Judge rightly noted that the factum of adoption must
be proved in the same way as any other fact and such evidence in support of
the adoption must be sufficient to satisfy the heavy burden that rests upon any
person who seeks to displace the natural succession by alleging an adoption.
      46. Viewed in the backdrop of the above legal principles, as Ex. A9
Adoption Deed was registered, the presumption under Section 16 of the Act
of 1956 attached to it and it was for Kaliprasad to rebut that presumption.
We find that he did so more than sufficiently. Mere registration of Ex.
A9 Adoption Deed did not absolve the person asserting such adoption
from proving that fact by cogent evidence and the person contesting it
from adducing evidence to the contrary. It is in this respect that various
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


23 AIR 1996 P & H 203
668          SUPREME COURT REPORTS                          [2023] 16 S.C.R.


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 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 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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 669
        THROUGH LRS.) [SANJAY KUMAR, J.]

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
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
explained in Telugu to the executant. No evidence has been let in for the
Court to deduce that Venkubayamma was conversant with English language.
670           SUPREME COURT REPORTS                         [2023] 16 S.C.R.


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 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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 671
        THROUGH LRS.) [SANJAY KUMAR, J.]

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 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.


Headnotes prepared by:                                          Appeal dismissed.
Divya Pandey