Satyanarayana & Ors Vs. Pentakota Seetharatnam & Ors  Insc 519 (29 September 2005)
Pal & Dr. Ar. Lakshmanan
out of S.L.P. (Civil) Nos. 21835-21836 OF 2003) Dr. AR. Lakshmanan, J.
above two appeals were filed against the judgment and order dated 20.06.2003
passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Appeal
No. 720 of 1997 and Cross Objections, A.No.990 of 1997 and Cross Objections and
Tr. A.S. Nos. 2450 and 2451 of 1999 whereby the High Court dismissed all the
appeals filed by the appellants herein and allowed the Cross Objections in part
to the extent indicated in the judgment.
appellants before the High Court are the defendants in O.S. Nos. 7 and 287 of
1984 filed by Krishna Bhagavan and Seetharatnam. The appellants herein also
filed O.S. No. 239 of 1985 seeking a decree for perpetual injunction
restraining the respondents herein and some other third parties from
interfering with the plaint schedule properties. Likewise, O.S. No. 82 of 1987
was filed by the appellants seeking a decree for perpetual injunction
restraining the respondents from interfering with the plaint schedule
properties. Against the dismissal of those two suits, the appellants filed
C.M.A. No. 10 of 1988 on the file of the Additional District Judge who
dismissed the appeal. The Principal Subordinate Judge, by her order dated
29.04.1997, passed in O.S. Nos. 7 of 1984 and 287 of 1984 decreed the suits.
The other two suits filed by the appellants for injunction were dismissed with
costs. The appellants filed four appeals before the High Court which were
dismissed. The cross objections filed by the respondents were allowed in part.
Aggrieved against the judgment in A.S. Nos. 720 of 1997 and 990 of 1997, the
above appeals were filed in this Court.
facts and circumstances which led to the filing of the appeals and 4 suits may
be noted in brief:- One Pentakota Srirammurthy who is the father of the
appellants herein got married with the first respondent herein Pentakota Seetharatnam
in the year 1952. The marital life with the first wife was not very happy. Srirammurthy
started living with one Alla Kantamma who is divorced from her first husband as
per caste custom in the year 1954. Soon after the divorce, Alla Kantamma and Srirammurthy
started living as man and wife in the same village itself. Alla Kantamma was
accepted as the second wife.
and Alla Kantamma begot two sons - Pentakota Satyanarayana and Pentakota Prasadarao
and one daughter Villuri Susheela in the year 05.01.1956, 03.11.1958 and
17.12.1960. The second respondent Krishna Bhagavan was born on 01.01.1963. He
is the youngest son of one Paramesu, who is the natural brother of Pentakota Srirammurthy.
Krishna Bhagavan's father and mother died when he was aged hardly 3 years. Pentakota
Srirammurthy brought him up and fostered him. The appellants' father Pentakota Srirammurthy
performed the marriage of his daughter i.e., the third appellant herein on
18.02.1976 and his son, the first appellant on 12.02.1981 in a befitting manner
and printed invitation cards in his own name as father which is marked as
Exhibits B4 and B5. The appellants' father executed a Will regarding his
properties and got it registered in the year 1980. Under the said Will, he made
a provision to the first wife Seetharatnam - the first respondent herein for
decent living (of an extent of 13 acres of land and house etc.) and given the
rest of his properties to the appellants born through Alla Kantamma (second
wife). True copy of the registered Will was marked as Exhibit B9 in the courts
below and is annexed and marked as Annexure-P1. While so Seetharatnam
surprisingly filed a suit O.S. No. 287 of 1984 seeking a decree for maintenance
with a charge on Srirammurthy's half share in the plaint schedule property and
to provide her separate residence. It was stated in the plaint that Pentakota Srirammurthy
died intestate on 20.11.1985 pending the suit and that the Will is neither true
nor valid nor binding on her. She also denied the execution, attestation,
registration etc. It was claimed in the plaint that consequent on the death of Pentakota
Srirammurthy, the right of the plaintiffs against the estate of the deceased Srirammurthy
comes into effect.
further stated that if the Will set up by the defendant therein is upheld, Seetharatnam
will not only get the properties which have been bequeathed in her favour under
the Will but her claim for maintenance subsists against the estate of the
deceased Srirammurthy in the hands of the appellants herein (Defendant Nos.
3-5). It was also stated that the second respondent Krishna Bhagavan is the
adopted son of the plaintiff Seetharatnam and the first defendant Srirammurthy
and the defendants and the plaintiff constituted members of Hindu Joint Family
owning considerable properties mentioned in the A & B schedule to the
second respondent Krishna Bhagavan filed O.S. NO. 7 of 1984 seeking a decree
for partition and separate possession of his half share in the family
properties claiming for the first time as the adopted son of Seetharatnam and Srirammurthy.
and Seetharatnam were impleaded as defendant Nos. 1 & 2 and the appellants
were added as LRs of the deceased first defendant as per order dated 12.09.1989
in I.A. 808 of 1986. It was stated in the plaint that Krishna Bhagavan was born
on 01.01.1963 and that Srirammurthy and Seetharatnam requested the natural
parents of Krishna Bhagavan late P.Paramesu and his wife in the year 1966 to
give Krishna Bhagavan in adoption to them. Paramesu and his wife consented to
the same and Krishna Bhagavan was given in adoption to Srirammurthy and Seetharatnam
by his natural parents and he was received by them and that the adoption
ceremony took place in accordance with Hindu law, customs and usage and Krishna
Bhagavan was being brought up by his adoptive parents. It was further submitted
that a Will was executed by Srirammurthy by playing fraud with a view to
bequeath the major share of the joint family properties to Alla Kantamma and
her children with a view to deprive Krishna Bhagavan and his adoptive mother Seetharatnam.
It was submitted that he being the adopted son by virtue of the adoption on
05.02.1966 is entitled to a half share in the joint family properties. It was
further stated that Srirammurthy died intestate on 20.11.1985 and on his death
his share of the plaint schedule properties devolved upon his widow Seetharatnam
and the adopted son Krishna Bhagavan and consequently Krishna Bhagavan will be
entitled to not only his half share as adopted son but also half share in the
share of Srirammurthy. So in all Krishna Bhagavan will be entitled to 3/4th
share in all the plaint A, B & C schedule properties in the plaint, the
remaining 1/4th share belongs to Seetharatnam.
appellants' father Srirammurthy contested both the suits. He had filed written
statement on 07.04.1984. He denied the adoption of Krishna Bhagavan. It was
also stated that in the year 1954 he came into contact with one Alla Kantamma
who divorced her husband Kanakaiah as per their caste custom in the year 1954
and they started living as man and wife and begot two sons and one daughter and
brought them up and performed their marriages. It was further pleaded that
during the year 1980, he executed a Will in respect of his properties and got
it registered. After filing the written statement, Srirammurthy died on
20.11.1985 and the appellants were brought on record as his legal
representatives in O.S. Nos. 287 and 7 of 1984. That apart, the plaint in O.S.
No. 287 of 1984 was amended denying the Will alleged to have been executed by
deceased and claiming the deceased died intestate. Thus she claimed absolute
rights in respect of the estate of the deceased or at least 1/4th share in the
plaint schedule properties. Similarly, the plaint in O.S. No. 7 of 1984 was
also amended claiming 3/4th share in the plaint schedule properties. The
appellants subsequently filed their written statements and denied all the
allegations raised in the plaint. On behalf of the plaintiffs, PWs 1-6 were
examined and on behalf of the defendants DWs 1-8 were examined. As already
noted, Special Leave Petition Nos. 21835 and 21836 of 2003 were filed against
the judgment and decree in A.S. Nos. 720 of 1997 and 990 of 1997.
heard Mr. K.V.Viswanathan, learned counsel for the appellants and Mr. P.S. Narsimha,
learned counsel for the respondents. Both the learned counsel invited our
attention to the entire pleadings; evidence let in, both oral and documentary
and made their meticulous submissions at length in support of their respective
K.V. Viswanathan, learned counsel for the appellants, after stating the
background facts of the case, submitted that the impugned judgment and the
order of the High Court is unjust and against law, weight of evidence and
probabilities of the case. He submitted that the High Court and the Courts
below cannot overlook Ex. B9 a registered Will when they have recorded a
finding that the Will is proved as incompliance with the requirement of Section
68 of the Evidence Act, 1872 though there is no material on record to show that
the Will was executed in suspicious circumstances to the satisfaction of the
Court. It was further submitted that the Courts below failed to note that the
evidence of DW 5 and 6 goes to show that the Will was executed by the deceased
father of the appellants on his own volition without any pressure from any
side. He would further submit that Respondent No.2 Krishna Bhagavan was not a
member of the family and he was not adopted. It was further submitted that Pentakota
Srirammurthy was alive when the suits were filed and he filed a detailed
written statement which had a vital bearing on the adjudication of the case.
denied the factum of adoption and stated that Krishna Bhagavan was the son of Pentakota
Paramesu who is his elder brother and Krishna Bhagavan was never adopted but
was only looked after since Krishna Bhagavan's parents died young. In para-10
of the written statement, he most importantly stated that he has executed a
Will regarding his properties and got it registered in 1980 and that he made a
provision to Seetharatnam for a decent living and gave the rest of the
properties to the appellants herein who he claimed were his children through Alla
Kantamma. It was further stated in the written statement that Krishna Bhagavan
and his brothers hatched upon a plan to grab at the property and the suit was
virtually a result of that concerted action. After filing the written statement
in April, 1984 and before the suit came up for trial, Pentakota Srirammurthy
died and as such he could not be examined. The appellants also filed written
statements broadly on the same lines as filed by their father Pentakota Srirammurthy.
According to Mr. K.V.Viswanathan, the crucial questions that arise in this case
are the validity of the Will dated 20.02.1980 Ex.D9 and the genuineness of the factum
of adoption. He also made submissions on the legal principles and its
application to the facts of the case. According to him, the respondents have
not proved that Krishna Bhagavan was adopted by Pentakota Srirammurthy and Seetharatnam
and that the evidence relied upon, namely, PW1, PW3, PW6, DW2 and DW3 falls
short of the required proof in law. He took us through the evidence and
pleadings and various circumstances which negate the genuineness of the
adoption. On presumption of marriage due to long cohabitation, Mr. Viswanathan
cited some authorities, namely, Thakur Gokalchand vs. Parvin Kumari reported in
 SCR 825; Badri Prasad vs. Dy. Director of Consolidation and Others
reported in (1978) 3 SCC 527; S.P.S Balasubramanyam vs. Suruttayan alias Andali
Padayachi and Others reported in (1994) 1 SCC 460, Sobha Hymavathi Devi vs. Setti
Gangadhara Swamy and Others reported in (2005) 2 SCC 244. He also cited various
decisions to the effect that there is no absolute bar for interference on
P.S. Narsimha elaborately argued in support of his contentions and with
reference to the pleadings, documents and evidence let in. He submitted that though
the appellants filed appeals against all the suits and all the appeals were
dismissed, the appellants herein filed special leave petitions before this
Court only against the suits filed by the respondents which was upheld by the
High Court and no special leave petitions are filed against the dismissal of
the suits filed by the appellants which were upheld by the High Court,
therefore, the decrees in suits filed by the appellants have become final.
According to him, the suits filed by the appellants are based on the alleged
right arising out of the Will executed by Pentakota Srirammurthy and that the
trial Court as well as the High Court disbelieved the Will and dismissed the
suits. It was further submitted that the appellants have not even made any submissions
before the High Court that the property is not the joint family property. As
there was neither a pleading, evidence, submission, finding nor any ground in
appeal, the High Court correctly concluded that the properties in question are
ancestral properties and there is no evidence or pleading to show that the same
are the self-acquired properties of the first defendant. Even before this
Court, the appellants have not raised the plea with regard to the nature of the
property being joint or self-acquired and, therefore, the learned counsel
submitted that the appellants should not be permitted to raise this issue
before this Court without a pleading or ground either before the High Court or
before this Court. Mr. Narsimha submitted that the Courts below have given
concurrent findings on pure question of facts. This Court would not ordinarily
interfere with these findings and review the evidence for the third time unless
there are exceptional circumstances justifying the departure from this normal
practice. In support of this contention, he cited Srinivas Ram Kumar vs. Mahabir
Prasad and Others,  SCR 277 and M/s Tulsidas Khimji vs. Their Workmen,
 1 SCR 675.
factum of adoption, Mr. Narsimha submitted that it has been the case of the plaintiff
and defendant No.2 in O.S. No. 287 of 1984 that defendant No.2 is the adopted
son of defendant No.1 and that Seetharatnam, Srirammurthy and Krishna Bhagavan
constituted a Hindu Joint Family owning the plaint schedule properties. It is
also pleaded that defendant No.1 adopted defendant No.2 from his natural
parents as per Hindu law, customs and usage and in view of the said adoption,
defendant No.2 is entitled to his half share in the said property.
No.2 also filed a suit for partition in O.A. No. 7 of 1984 against defendant
No.1 and the plaintiff wherein he pleaded that D1 and the plaintiff adopted him
from his natural parents in accordance with Hindu law, customs and usage. Mr. Narsimha
submitted that the plaintiffs examined 4 witnesses to prove the factum of
adoption and the witnesses deposed that D2 was adopted as per Hindu customs and
all the relations of their family were present at the time of ceremony
conducted in that regard. In the cross examination, she deposed that the
ceremony took place 30 years ago officiated by one Kondal Rao as Purohit and
that D2 was handed over by his natural parents to herself and D1 and mantras
were also recited by the said Purohit during the adoption ceremony. The
Headmaster of the school PW3 where D2-D5 studied deposed that the Photostat
copy of the admission application form pertains to D2 which also shows the name
of D1 as the father of D2 and that D1 signed in the originals of the said
document in the capacity of the father D2. A Telugu Pandit of the said school
also deposed that the copy of the admission application form in respect of D2
and Ex.X-12 showed D1 as the father of D2. Apart from the above-mentioned
witnesses, two independent witnesses were also examined and both these
witnesses deposed that the adoption took place 30 years back and were attended
by other people including the relation of D1 and the plaintiff. DW2 and DW3
further deposed that adoption ceremony was officiated by Kondal Rao as Purohit
and the natural parents of D2 handed over D2 to D1 and the plaintiff along with
the coconut who in turn accepted the same. Thus Mr. Narsimha submitted that on
a perusal of the above evidence of all the said witnesses, it can be seen that
the factum of adoption of D2 by plaintiff and D2 is amply proved and that their
evidence has been duly corroborated by the oral evidence of DW1 and DW2. Mr. Narsimha
submitted that much weightage has to be given to the evidence of DW2 and DW3 as
they being independent witnesses did not have any interest in either of the
parties to the suits.
then attacked the genuineness of the Will. He submitted that D3 and D5
(appellants) relied mostly on the Will Ex-B9 to disprove the contention of the
plaintiff and D2 with regard to the adoption. It was submitted that the High
Court upheld the findings arrived at by the trial Court and the concurrent
findings of fact arrived at by both the Courts below are based on material
evidence and based on record and does not suffer from any perversity so as to
warrant interference under Article 136 of the Constitution of India by this
Court. He also cited few decisions which held that for a valid adoption the law
requires that the adoptive child should be handed over by its natural parents
to the adoptive parents, who shall receive it. He also drew our attention to
the relevant portions of some of the judgments of this Court in Madhusudan Das
vs. Smt. Narayanibai and Others, (1983) 1 SCC 35, Lakshman Singh Kothari vs. Smt.
Devi and Others, (1970) 1 SCC 677.
further on the genuineness and validity of the Will, Mr. Narsimha submitted
that the Will was executed in 1980 and propounded for the first time in 1997.
to him, the Will is replete with false statements, namely, the statement that Srirammurthy
married Kantamma is false on the basis of the evidence of the appellants
themselves. The statement about the paternity of the appellants is false and it
is evidenced by various documents. The profounder takes active interest in
getting the Will executed which give rise to a suspicious circumstance. In this
case, the profounder and the beneficiaries themselves have arranged for the
execution of the Will. They brought the attestor who is a close friend of the
beneficiaries under the Will. The Will was in the custody of the profounder for
17 years before it saw the light. The factum of scribing the Will is fraught
with so many contradictions that it gives rise to a very very strong suspicious
circumstance and there is absolutely no commonality in the statement of these
witnesses and the contradiction is material and goes to the route of the
K.V. Viswanathan, learned counsel for the appellants made lengthy submissions
by way of reply with reference to each and every contention and submissions
made by learned counsel for the respondents. We shall advert to the same at the
background facts and circumstances, the following questions of law arise for
consideration by us:-
Whether the second defendant Krishna Bhagavan is the adopted son of the first
Whether Ex.B9 Will is valid and whether it is proved in compliance with the
requirement of Section 68 of the Evidence Act;
Whether the Courts below have justified in decreeing the suits in favour of the
respondents herein and dismissing the appeals filed by the appellants herein
merely basing on surmises and conjectures and wrong application of law?
carefully perused the complaint in O.S. No. 7 of 1984 and O.S. No. 287 of 1984
and the written statement filed by the respective defendants. We have also
carefully perused the Will marked as Ex.B9 and executed on 20.02.1980. We have
perused all the original documents and the evidence recorded by the courts from
the original records summoned by us from the High Court and the lower Court. We
have to bear in mind that P.Srirammurthy married P.Seetharatnam in 1951.
to him, soon after the marriage since he did not derive marital pleasure with
respondent No.1, he started living with one A. Kantamma and got 3 children i.e.
the appellants herein on 05.01.1956, 03.11.1958 and 17.12.1960. The birth of
these children through P. Srirammurthy is denied by respondent Nos. 1 and 2.
Their case is that the appellants were born to A. Kantamma through her husband
to respondent Nos. 1 and 2, since P. Srirammurthy and Seetharatnam were
issueless they adopted Krishna Bhagavan, respondent No.2. Their further case is
that the properties of P. Srirammurthy are ancestral and Krishna Bhagavan has
half share in the same and after the death of P. Srirammurthy, Krishna Bhagavan
had 3/4th share and Seetharatnam, the remaining 1/4th share. In January, 1984,
O.A. No. 7 of 1984 was filed by the second respondent Krishna Bhagavan against
Srirammurthy and the appellants herein as well as Seetharatnam claiming
partition and possession. In February,1984 Seetharatnam filed O.S. No. 287 of
1984 claiming maintenance against Srirammurthy. In both the suits, the theory
of adoption of Krishna Bhagavan was set up. Srirammurthy died on 20.11.1985 and
the suits were amended while Seetharatnam claimed additional partition and
sought 1/4th share that the remaining share to go to Krishna Bhagavan. Krishna Bhagavan
amended his plaint seeking partition in the same ratio. Both prayed for
possession and mesne profits. It is pertinent to notice that when the suits
were filed Srirammurthy was alive and filed a detailed written statement which
has a vital bearing for the adjudication of this case. He specifically denied
the factum of adoption and stated that Krishna Bhagavan was the son of his
elder brother P. Paramesu and that Krishna Bhagavan was never adopted but was
only looked after since Krishna Bhagavan's parents died young. Most
importantly, he submitted that he executed a Will regarding his property and
got it registered in 1980. After filing the written statement and before the
suit came up for trial, Srirammurthy died and as such he could not be examined.
trial Court framed necessary issues in regard to the validity of the registered
Will, validity of the adoption and whether Krishna Bhagavan was entitled to any
share in the suit property and to what extent.
appellants also filed written statement broadly on the same lines as signed by
their father Srirammurthy. The suit filed by Seetharatnam in O.S. No. 287 of
1984 was treated as main suit. Before the trial Court, 6 witnesses were
examined on the side of the respondents and 8 witnesses were examined on the
side of the appellants.
examined herself as PW1, Krishna Bhagavan examined himself as DW1. P. Satyanarayana,
Manka Anandarao (attestor of the Will) and Kamisetti Saibaba, the scribe of the
Will were examined on the side of the appellants. With regard to the adoption
of Krishna Bhagavan apart from PW1, PW3, PW6, DW2,DW3 spoke through their
evidence, their depositions would be referred to at the appropriate place. If
the Will is held to be proved and the adoption is held to be not proved, then
irrespective of the paternity the appellant should succeed since they are
legatees under the will. Hence, the crucial question that arises in this case
is the validity of the Will dated 20.02.1980 and the genuineness of the factum
of adoption. The trial Court decreed both the suits filed by Krishna Bhagavan
and Seetharatnam respectively. The appellants filed appeals to the High Court
and the respondents filed cross objections on the mesne profits issue. The High
Court dismissed all the appeals of the appellants and allowed the cross
objections of the respondents.
have perused the original Will Ex.B9 which was written in Telugu and the
translated copy which has been filed before us. The Telugu version of the
document was explained to me by my Sr. Personal Assistant - Mr. R. Natarajan
who knows Telugu very well. With his help, I perused the endorsements. The Will
was registered on 20.02.1980. The signature of Srirammurthy was identified by Vanka
Aanantha Rao and Kameswara Rao. The sub-registrar has signed the document. The
registration endorsement is also made at page no.2 of the document. On page 3
bottom, Srirammurthy has made his signature and his signature was witnessed by Vanka
Anantha Rao and T. Samba Murthy. The document was prepared by Kamisetti Saibaba.
His signature and the rubber stamp are at the bottom of page no.3. As far as
Ex.B9 Will is concerned, the appellants being the profounder, the initial onus
will be on them to prove execution of the Will. Thereafter, the onus would
shift to the respondents. They have to establish their case of undue influence or
coercion. Then the onus would shift to the appellants to remove the suspicious
circumstances if any.
attention was drawn to the findings of the High Court which clearly holds the
Will be duly proved and that the testator was in sound disposing state of mind.
However, the Courts below have assumed certain non-existent circumstances and
have held the Will as not proved. It is not in dispute that on the date of the
will, as has been pleaded in the written statement of P. Srirammurthy, the
properties were absolute properties of P. Srirammurthy and he had absolute
right to Will it away. Under the Will, P. Seetharatnam has been given a large
extent of property. The appellants are entitled to the property as legatees
along with P. Seetharatnam who is entitled to her share under the Will. It is
primarily submitted that the Will is proved and the adoption is not proved.
shall now see the circumstances under which the Will is proved. In the instant
case, the Will has been duly proved and the High Court and the lower Court in
their discussion has even held so. It has also been held that the testator was
hale and healthy and in a sound state of mind. The Will is a registered Will.
DW5, the attestor and DW6, the scribe have been examined to prove the Will. As
already noticed, the Will gives property to respondent No.1 Seetharatnam, the
first wife of the testator and the remaining properties to the appellants, who
according to the testator, were his children and the children through his
second wife A. Kantamma. We have already referred to the written statement
filed by Srirammurthy in the suit. The statement made by him in the written
statement is one of the most important factors which authenticates the
genuineness of the Will. No evidence has been led in by the respondents to show
the exercise of any fraud or undue influence at the time of execution of the
Will. No evidence was adduced to show that the testator is not in sound state
of mind and in fact, the finding is that he was of sound mind. In our opinion, the
evidence adduced by the appellants/profounders are sufficient to satisfy the
conscience of the Court of law that the Will was duly executed by the testator.
The trial Court has reached certain findings with regard to the suspicious
circumstances. They are
exclusion of Krishna Bhagavan from the Will and bequethal of major portion in favour
of the appellants;
appellants are not the children of the testator and the properties are
was contradiction between evidence of DW5 attestor and DW6 Scribe with regard
to the presence of DW4 and the husband of DW5.
is no evidence to state that the recitals to draft the Will are based on
instructions given by Srirammurthy.
Will had incorrect recitals about Alla Kantamma being the wife of Srirammurthy
and the appellants being the children of Srirammurthy.
above findings, in our opinion, are erroneous. The trial Court also recorded
wrongly a finding that the Will was not revocable overlooking the fact that in
the very paragraph the testator reserved his right to cancel the Will and
execute another Will. In our view, the findings of the High Court and the trial
Court are not only contrary to the facts on record but also overlooked the law
governing the aspects of proof of Will.
68 of the Indian Evidence Act, 1872 deals with proof of execution of document
required by law to be attested. This section lays down that if the deed sought
to be proved is a document required by law to be attested and if there be an
attesting witness alive and subject to process of the Court and capable of
giving evidence, he must be called to prove execution. Execution consists in
signing a document written out, read over and understood and to go through the
formalities necessary for the validity of legal act. Section 63 of the Indian
Succession Act gives meaning of attestation as under:- "Section 63:
Execution of unprivileged will.- 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
The testator shall sign or shall affix his mark to the will, or it shall be
signed by some other person in his presence and by his direction.
The signature or mark of the testator, or the signature of the person signing
for him, shall be so placed that it shall appear that it was intended thereby
to give effect to the writing as will.
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 acknowledgment of his signature or mark, or of 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."
It is clear from the definition that the attesting
witness must state that each of the two witnesses has seen the executor sign or
affix his mark to the instrument or has seen some other persons sign the
instrument in the presence and by the direction of the executant. The witness
should further state that each of the attesting witnesses singed the instrument
in the presence of the executant. These are the ingredients of attestation and
they have to be proved by the witnesses. The word 'execution' in Section 68
includes attestation as required by law.
perusal of Ex.B9 (in original) would show that the signatures of the
Registering Officer and of the identifying witnesses affixed to the
registration endorsement were, in our opinion, sufficient attestation within
the meaning of the Act. The endorsement by the sub-registrar that the executant
has acknowledged before him execution did also amount to attestation. In the
original document the executants signature was taken by the sub-registrar. The
signature and thumb impression of the identifying witnesses were also taken in
the document. After all this, the sub-registrar signed the deed.
other documents the Will speaks from the death of the testator, and so, when it
is propounded or produced before a court, the testator who has already departed
the world cannot say whether it is his Will or not and this aspect naturally
introduces an element of solemnity in the decision of the question as to
whether the document propounded is proved to be the last Will and the testament
of departed testator.
instant case, the propounders were 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 dispositions and put his signature to the document on his own
freewill. In other words, the onus on the propounder can be taken to be
discharged on proof of the essential facts indicated above. It was argued by
learned counsel for the respondent that propounders themselves took a prominent
part in the execution of the Will which confer on them substantial benefits. In
the instant case, the propounders who were required to remove the said
suspicion have let in clear and satisfactory evidence. In the instant case,
there was unequivocal admission of the Will in the written statement filed by
written statement, he has specifically averred that he had executed the Will
and also described the appellants as his sons and Alla Kantamma as his wife as
the admission was found in the pleadings. The case of the appellants cannot be
thrown out. As already noticed, the first defendant has specifically pleaded
that he had executed a Will in the year 1980 and such admissions cannot be
easily brushed aside. However, the testator could not be examined as he was not
alive at the time of trial. All the witnesses deposed that they had signed as
identifying witnesses and that the testator was in sound disposition of mind.
Thus, in our opinion, the appellants have discharged their burden and
established that the Will in question was executed by Srirammurthy and Ex.B9
was his last will. It is true that registration of the Will does not dispense
with the need of proving, execution and attestation of a document which is
required by law to be proved in the manner as provided in Section 68 of the
Evidence Act. The Registrar has made the following particulars on Ex.B9 which
was admitted to registration, namely, the date, hour and place of presentation
of document for registration, the signature of the person admitting the
execution of the Will and the signature of the identifying witnesses. The
document also contains the signatures of the attesting witnesses and the
scribe. Such particulars are required to be endorsed by the Registrar along
with his signature and date of document. A presumption by a reference to
Section 114 of the Evidence Act shall arise to the effect that particulars
contained in the endorsement of registration were regularly and duly performed
and are correctly recorded. In our opinion, the burden of proof to prove the
Will has been duly and satisfactorily discharged by the appellants. The onus is
discharged by the propounder adducing prima facie evidence proving the
competence of the testator and execution of the Will in the manner contemplated
by law. In such circumstances, the onus shift to the contestant opposing the
Will to bring material on record meeting such prima facie case in which event
the onus shift back on the propounder to satisfy the court affirmatively that
the testator did know well the contents of the Will and in sound disposing
capacity executed the same.
settled by a catena of decisions that any and every circumstance is not a
suspicious circumstance. Even in a case where active participation and
execution of the Will by the propounders/beneficiaries was there, it has been
held that that by itself is not sufficient to create any doubt either about the
testamentary capacity or the genuineness of the Will. It has been held that the
mere presence of the beneficiary at the time of execution would not prove that
the beneficiary had taken prominent part in the execution of the Will. This is
the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty &
Ors, (2005) 2 SCC 784. In the said case, it has been held that the onus to
prove the will is on the propounder and in the absence of suspicious
circumstances surrounding the execution of the will proof of testamentary capacity
and the proof of signature of the testator as required by law not be sufficient
to discharge the onus. In case, the person attesting the Will alleges undue
influence, fraud or coercion, the onus will be on him to prove the same and
that as to what suspicious circumstances which have to be judged in the facts
and circumstances of each particular case.
learned counsel for the respondents, submitted that the natural heirs were
excluded and legally wedded wife was given a lesser share and, therefore, it
has to be held to be a suspicious circumstance. We are unable to countenance
the said submission. The circumstances of depriving the natural heirs should
not raise any suspicion because the whole idea behind the execution of the will
is to be interfered in the normal line of succession and so natural heirs would
be debarred in every case of the Will. It may be that in some cases they are
fully debarred and some cases partly.
is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan
(Dead) (2004) 2 SCC 321.
have already referred to the findings of the High Court and the trial Court
about the alleged suspicious circumstances which, in our opinion, are palpably
erroneous. In fact, the circumstances are not suspicious at all. As far as the
High Court is concerned, it has only gone by the exclusion of Krishna Bhagavan
in the Will and the bequethal of major portion to the appellant. This is
legally no ground to negate the Will. Further, once the Will is duly proved,
the Will has to be given effect to. In this case, admittedly and even according
to PW1 the testator Srirammurthy and Alla Kantamma were living together as man
and wife. Therefore, there is nothing wrong if the will refers to Alla Kantamma
as wife of the testator. Similarly, the testator has referred to the appellants
as his children in the Will. The very same stand has been maintained in the
written statement filed by Srirammurthy. There is ample evidence to prove that Srirammurthy
has treated the appellants as his children and solemnized their marriages.
DW-4's evidence prove this factor. It is everybody's case that the testator and
Alla Kantamma lived together and the appellants were also living with them.
Ex.B8 voters list had shown them as children of the testator. DW4 has deposed
that DW5's wedding (appellant No.3) was celebrated by printing invitation cards
by the testator.
says the testator and Kantamma performed first appellant's marriage. Further,
DW-4 (appellant No.1) has said only because testator was having a Government
job as village Munsiff, he did not disclose in the official record that the
appellants are his children. In this background, there is nothing wrong if the
testator described the appellants as his children particularly when the same stand
was taken in his written statement also. Further, the stand of the testator in
the written statement was that the properties are absolute properties and
Krishna Bhagavan had no share once the adoption is not proved. The testator
would be the sole surviving coparcener and the property would be his absolute
property. On the contrary, there is denial. There is no admission that the
joint family consisted of the testator, Seetharatnam and Krishna Bhagavan and,
therefore, there cannot be any doubt over the testator's capacity to bequeath.
learned counsel for the respondents, pointed out certain contradiction in the
evidence of DW5, DW6 and DW4. DW5 testator stated that the testator came to his
house and requested him to come to the Registrar Office. The Testator sent word
to Samba Murthy, the other attestor who came to the house of DW5. the testator
and the attestors went to Taluk Office and contacted DW6 Scribe. DW5 also
stated that in the document writer's shed the Will was scribed as per the
instruction given by D1. He stated a draft Will was prepared first as per the
instructions given by D1. He stated that D1 went through the said draft and
thereafter a fair Will was prepared. He stated that thereafter they went to the
Sub-Registrar Office and along with him another witness acted as an identifying
witness, whom he does not know.
in cross-examination he says the testator sent word to Sambamurthy through one
of his men and he states that testator contacted Saibaba and added "DW4
has not accompanied D1 at that time". He also stated that he has not seen
either petitioner No.2 or petitioner No.3 and Narayana Rao with D1 at that
stated that D1 brought the draft Will and asked him to scribe the same.
is nowhere contradicted by DW5. DW5 does not say that D1 (testator) did not
bring a draft Will. It is quite natural for the testator to have a first draft
Will in the pocket when he goes to a document writer. DW5 was asked to attest.
DW6 also speaks about the execution and attestation. The trial Court has made
much about the draft Will aspect. This is hardly a suspicious circumstance. DW6
says that 4 male persons accompanied D1. This is hardly a suspicious
circumstance. DW5 also states that there was another person whom he would not
identify. The deposition was given in 1997 (i.e. 17
years after the registration of Will) and the courts below ought not to have
made a mountain out of a molehill and on that basis reject a duly executed
to the evidence of DW4 (Appellant No.1) his evidence is that testator alone
went to execute the Will. He also states that he also went there and he does
not know whether his mother and brother accompanied him. He says that he has
not seen the writing of the Will and he was not present at the time of
registration. He also says that he did not go to the place where the document
was scribed. Applying the law as set out above and assuming the worst against
the appellants, no case of undue influence, coercion or fraud is made out to
negate the Will. The mere presence of DW4 (appellant no.1) would not make it a
suspicious circumstance. Assuming the presence to be true that does not mean
undue influence was exercised and mere presence does not mean that a prominent
part was played. Hence the Will has been duly proved by the appellants.
advanced much argument about the school extracts marked as Ex.A6-A8, X6-X11 and
X15-X20. According to him, these documents no where show D1 Srirammurthy as
the father of the appellants. We have perused Ex. X series and A5-A9 series. We
have perused A5-A9 in original and X series (Xerox copies). Ex.A5- A9 series
were issued by the Headmaster of the school on 23.09.1996. It is seen from
Ex.A5, Krishna Bhagavan was admitted on 01.02.1968 and he left the school on
15.06.1974. It is seen from Ex.A7, Prasadarao was admitted on 11.08.1964 and he
left the school on 31.05.1970. Ex.A8, Suseela was admitted on 20.07.1965 and
she left the school on 30.08.1973. All these documents are true copies and were
issued by the Headmaster on 23.09.1996.
counter affidavit filed in this Court on behalf of respondent Nos. 1 and 2, the
respondents once again have taken shelter under wild assumption that name of
the father of the appellants was mentioned as one Arala Kanakaiah in the
Ex.A6-A8. This clearly shows and proves the conduct of the respondents in
misleading the Court while Ex.A6-A8 reads something else as could be seen from para
31 of the trial Court judgment. As can be seen from Ex.A6, third appellant was
born on 08.02.1955 and was admitted in the school on 10.06.1960. The Headmaster
of Mandal Parishad, Elementary School was examined on 22.01.1997. According to
him, he joined the school 5 years before. He produced the documents along with
the Photostat copies for relevant entries. Even though originals of all the
documents were available, only Photostat copies of the documents were put to
the witnesses. The Headmaster also deposed that he has no personal knowledge of
these documents. D7 (who is aged 70 years) has deposed that D2-D5 are the
children of Kantamma born through the first defendant and he gave information
regarding the birth of second defendant to the government officials and he gave
information to the effect that Alla Kanakaiah was the father of D3. He further
deposed that he gave such information as D1 was fearing that he would lose his
job. He also deposed about the marriage performed by D1 and Kantamma. In
cross-examination, he stated that Alla Kanakaiah is the first husband of Kantamma
and that D7. He also spoke about the caste divorce between Kanakaiah and Kantamma.
Ex.B8 voters list has shown the appellant as children of the testator D1. DW4
has said only because testator D1 was having a government job as Village Munsiff.
He did not disclose in the official record that the appellants are his
children. In this background, there is nothing wrong if the testator describes
the appellants as his children particularly when the same stand is taken in his
written statement also. In our opinion, Ex. A5-A9 and X series cannot at all be
looked into for any purpose and that the same would have been procured by the
respondents to put forth their case.
Will is held to be proved and adoption is held to be not proved. The appellants
should succeed since they are the legatees under the Will. We also hold that P.
Seetharatnam is also entitled to the properties given to her under Ex.B9.
we are of the firm opinion that the Will is a genuine document and has been
duly proved by the appellants. The said issue is answered accordingly.
have already referred to the arguments advanced by both sides on adoption.
attention was drawn to the findings recorded by the trial Court and by the High
Court on this aspect and the relevant portion of the oral and documentary
evidence was also relied on by both sides. The evidence relied upon is that of
PWs1, 3 & 6, DW2 and DW3. Their evidence, in our opinion, falls short of
the required proof in law. The respondents, in our view, have a heavy onus to
discharge the burden lies on them to prove the factum of adoption. Krishna Bhagavan,
the respondent herein seeks to exclude the natural line of succession to the
property by alleging adoption. The instant case is a classic example where the
alleged adoptive father himself filed a written statement denying adoption.
This apart, the following circumstances negate the genuineness of the adoption.
This Court in the case of Rahasa Pandiani (Dead) by LRs and Others vs. Gokulananda
Panda and Others, (1987) 2 SCC 338 held as under:- "An adoption would
divert the normal and natural course of succession.
the court has to be extremely alert and vigilant to guard against being enshared
by schemers who indulge in unscrupulous practices out of their lust for
property. If there are any suspicious circumstances, just as the propounder of
the Will is obliged to dispel the cloud of suspicion, the burden is on one who
claims to have been adopted to dispel the same beyond reasonable doubt. In the
case of an adoption which is claimed on the basis of oral evidence and is not
supported by a registered document or any other evidence of a clinching nature,
if there exist suspicious circumstances, the same must be explained to the
satisfaction of the conscience of the court by the party contending that there
was such an adoption. (para 4)" This Court held in Kishori Lal vs. Mt. Chaltibai, AIR
1959 SC 504. We can do no better than to quote the relevant passage from the
above judgment which reads as under:- "As an adoption results in changing
the course of succession, depriving wives and daughters of their rights and
transferring properties to comparative strangers or more remote relations it is
necessary that the evidence to support it should be such that it is free from
all suspicion of fraud and so consistent and probable as to leave no occasion
for doubting its truth. Failure to produce accounts, in circumstances such as
have been proved in the present case, would be a very suspicious circumstance.
The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra;
in Diwakar Rao v. Chandanlal Rao; in Kishorilal v. Chunilal; in Lal Kumar v. Charanji
Lal and in Padamla v. Fakira Debya." No argument was advanced on the
question of paternity. We are not, therefore, dealing with the said question.
Srirammurthy was living with Alla Kantamma since 1954. The alleged adoption is
in 1966. It is quite unbelievable that a person who is estranged from his wife
and according to him 3 children were born to him and Alla Kantamma in the years
05.01.1956, 03.11.1958 and 17.12.1960 joining with Seetharatnam. The pleading
itself shows the hatred they had for each other due to Kantamma coming into the
picture. No date of adoption is given nor venue of the ceremony was given in
the plaint. No specific custom is pleaded and it is not even pleaded that
giving of coconut is part of the ceremony. Seetharatnam has not given the place
or year in which the adoption took place. She only states that she does not remember
her age or the year in which adoption took place. She also says no muhurtham
was fixed. For Hindus, fixing of muhurtham or auspicious time is a very
important event even for the smallest of functions and it is unbelievable that
no muhurtham was fixed. The plaint also is bereft of details which is essential
for proving the adoption. PW6 stated that he does not remember the date or year
of adoption. No adoption deed was executed for such an important event. DW2
says that about 100 persons attended the ceremony whereas DW3 says that about
400-500 persons have attended. It is surprising that for such a big ceremony no
invitation cards were printed. In the suit filed by Seetharatnam in her plaint
and in the deposition she has averred that in the year 1977-78, she protested
her husband's attitude and raised dispute for maintenance and after the
intervention of elders, 4-5 persons, her husband agreed to pay her maintenance
as she claimed.
then she does not claim maintenance for her adopted son. Further, she has not
stated that the adopted son was living with her.
Bhagavan, in his evidence, has stated that in 1978 he was in Xth standard and
that point of time his father neglected him and was not providing him the
necessary fund for his studies. If at all the adopted son was living with Sitaratnam
and if at all the adoption is true, then she would have naturally claimed
maintenance for his adopted son also or filed a suit then.
of the witnesses have deposed the date of the alleged adoption function.
the witnesses have deposed in a parrot like manner stating that, the parties
sat in a plank and a coconut was given to Pentakota Srirammurthy and Sitaratnam
along with the child.
two witnesses Kanakayya and Venkatarao who were alive and who allegedly
attended adoption ceremony have not been examined.
B7 (proceedings in O.S. No. 69/82) and Ex.B6 (suit extract) are relevant.
is a suit filed by the sister of Paramesu, where Krishna Bhagavan was arrayed
as one of the parties in that suit. In that suit, Krishna Bhagavan was shown as
son of Paramesu represented by his brother and sister. The plaintiff in that
suit has filed affidavit showing Krishna Bhagavan as son of Paramesu. Even in
that suit, Pentakota Srirammurthy has deposed and described Krishna Bhagavan as
his brother's son.
this was put to the Krishna Bhagavan in cross-examination he only pleaded
above suit, Sitaratnam filed an application seeking for discharging the Court
guardian and for appointing her as guardian for Krishna Bhagavan. In the
affidavit in support of the application, she did not describe Krishna Bhagavan
as her adopted son. This was in the year 1982. When this was put in cross to Seetharatnam,
she did not deny but pleaded ignorance.
declared his properties in LCC 428/Tuni/75. In that proceeding, Sriramamurthy
deposed as witnesses and described Krishna Bhagavan as his brother's son.
Krishna Bhagavan's name was shown as part of the family of Paramesu in their
land ceiling declarations.
has deposed to the effect that Ex.X 3 is the photocopy of the admission
application pertaining to Krishna Bhagavan. Sriramamurthy himself signed in the
place meant for Father or guardian. Hence, it cannot be contended that this a proof
of adoption. It was a printed column for father or guardian. He could have
meant to be a guardian as he did for all his elder brother's children. Further
DW1 Krishna Bhagavan is shown as guardian for his natural sisters and brothers.
PW4 has stated that in EX. X12 admissions pertaining to Krishna Bhagwan where Sriramamurthy
was shown as father or guardian of D2. This is also a printed format.
has stated that EX. X28 is the copy of the admission application of P. Bhaskara
Satyanarayana who is the son of Paramesu, Sriramamurthy has signed the same in
the capacity of guardian. Further in Ex.31 Sriramamurthy signed in the
admission form of Uma as guardian.
therefore, hold that the alleged adoption is not true and valid and the alleged
adopted son has no right in the suit property and mesne profits. It is now
proved beyond doubt that the suit property is to belong to the appellants.
Therefore, the question of paying the mesne profits does not arise. Since we
now allow the appeals, mesne profits are due from the respondents. The
appellants are at liberty to claim the mesne profits and recover the same from
the respondents herein.
result, we hold that the Will Ex.B9 is a true and genuine document and the
appellants and Seetharatnam will be entitled to the properties respectively
allotted to them under the said Will. We also hold that the alleged adoption is
not true and, therefore, the alleged adopted son Krishna Bhagavan has no right
or any interest in any of the suit properties. In view of the fact that P. Seetharatnam
has been given some properties under the Will under Section 22 of the Hindu
Adoption and Maintenance Act, she is not entitled to any maintenance.
appeals stand allowed. The judgments and decrees of the High Court and the lower
Courts are set aside. Even though this is eminently a fit case to order costs,
we refrain from ordering costs considering the relationship of the parties.