November 25, 2023 In Uncategorized



A two-Judge Bench of the Supreme Court comprising of Justice C.T Ravikumar and Justice Sanjay Kumar passed an Order dated 20.11.2023 in Moturu Nalini Kanth Vs. Gainedi Kaliprasad (dead, through LRs.) in Civil Appeal No. 2435 of 2010 and set aside the Order of the Trial Court and held that the Appellant failed to prove the validity of the Adoption Deed and further failed to establish that the Will of the Deceased made any reference to the Appellant being his rightful heir.   


(1) The Appellant, Mr. Nalini Kanth, then a minor, filed an S 113 of 1983, through his Guardian, Mrs. Pasupuleti Anasuya before the Ld. Principal Subordinate Judge, Srikakulam (“Trial Court”) seeking declaration of his title to the Suit Properties that had belonged to his Adoptive Mother, Ms. Venkubayamma (“Deceased”) against the Respondent, Mr. Kaliprasad, the grandchild of the Deceased. The Appellant contended that he was adopted by the Deceased on 18.04.1982 at Sri Sri Raghunadha Swamy Temple at Bhapur in Behrampur City, Ganjam District, Orissa (presently Odisha).

(2) That it was claimed by the Appellant’s Guardian that the Adoption Deed was executed on 20.04.1982 (“Adoption Deed”) and was registered on the same day. The Deed was signed by his natural parents as well as the Deceased.

(3) Thereafter, the Deceased executed a Will Deed dated 03.05.1982 bequeathing all her promises to him, thereby cancelling the earlier Will Deed dated 26.05.1981, which was executed in favour of the Respondent- Kaliprasad, her grandson. The Deceased had appointed the Guardian as the executor of the Will dated 03.05.1982, in the event that she died during his minority. Mrs. Venkubayamma died only two months later, on 26.07.1982.

(4) As disputes arose between one, Pasupuleti Anasuya, the Appellant’s Guardian, and the Respondent-Kaliprasad, regarding who was entitled to receive the rents, the Suit in S. No. 113 of 1983 came to be filed by the Appellant through his Guardian.

(5) The Suit was contested by the Respondent. He challenged the Adoption Deed as well as the Will Deed, under which the Appellant claimed to have obtained rights to the Suit Properties of the Deceased. The Respondent alleged and submitted that (i) the Deceased was a resident of Srikakulam and was very old in 1982; hence, she was senile and not in a position to exercise free will and consciousness. (ii) Further, the Adoption was not true, valid or binding on him; (iii) Furthermore, the Will dated 03.05.1982 was invalid as it was not properly attested. (iv) Lastly, the Deceased had brought him up and got his marriage performed and that she had always treated him as her sole heir and successor.

(6) Subsequently, the Ld. Trial Court, after considering all the facts and circumstances, passed an Order dated 30.09.1989 in favour of the Appellant.

(7) Aggrieved by the Order dated 30.09.1989 of the Trial Court, the Respondent-Grandson filed an Appeal Suit No. 2695 of 1989 before the High Court of Andhra Pradesh.

(8) The High Court of Andhra Pradesh passed an Order dated 11.12.2006 in favour of the Respondent-Grandson and thereby, reversed the Judgement of the Trial Court.

(9) Aggrieved by the High Court Order dated 11.12.2006, the Appellant filed Civil Appeal No. 2435 of 2010 before the Supreme Court.


The Apex Court, vide Order dated 20.11.2023, made the following observations:

(i) The Supreme Court observed that mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of the legal mandate stated in Section 63 of the Succession Act, 1925 (Execution of unprivileged Wills), Section 68 of the Indian Evidence Act, 1872 (Proof of execution of document required by law to be attested) and Section 69 of the Indian Evidence Act, 1872 (Proof where no attesting witness found).

(ii) The Apex Court relied on the case of Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 SCC 91, wherein the Supreme Court held that the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act 1925 (Execution of unprivileged Wills) have to be complied with to prove a will/testament in the following manner:

(1) “the Will has to be attested by two or more witnesses and

(2) 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 acknowledgement of his signature or mark or of the signature or mark of such other person and

(3) each of the witnesses has to sign the Will in the presence of the testator.

(4) 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 1925.

(iii) The Apex Court also relied on Jagdish Chand Sharma vs. Narain Singh Saini (Dead) through LRs. and others (2015) 8 SCC 615, wherein the Supreme Court held that:

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 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.’

(iv) Thereafter, again in a recent Judgement in Ashutosh Samanta (Dead) by LRs. and others vs. SM. Ranjan Bala Dasi and others (2023) SCC OnLine SC 255, the Apex 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, 1872 (Proof where no attesting witness found) 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.

(v) That after applying the case laws stated above to the present case, the Supreme Court held that neither of the Attesting Witnesses to the Will Deed dated 03.05.1982, i.e., Pydi Appala Suranna and B. A. Ramulu, was examined before the Trial Court, in compliance with Section 68 of the Evidence Act,1972 (Proof of execution of document required by law to be attested). 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, 1872 could have been made use 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.

(vi) The Apex Court stated that for the purposes of Section 69 of the Evidence Act 1872, 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 the 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. Further, the evidence of the scribe / writer of the Will dated 03.05.1982, the Prosecution-Witness 6 (PW 6), also casted a doubt on the identity of the executant as he specifically stated that a woman was sitting at a distance but he could not tell whether she was the Deceased-Venkubayamma and he could not also tell whether she had signed the document.

(vii) Therefore, the Supreme Court held that the Will Deed dated 03.05.1982 was not proved in accordance with law and it cannot have any legal consequence. Thus, the Appellant’s claim of absolute right and title over the Deceased-Testarix’s properties on the strength of the Will Deed dated 03.05.1982 had no merit and was liable to be rejected.

(viii) Thereafter, on the matter of the adoption ceremony of 18.04.1982 and the Adoption Deed, where the Appellant, in the alternative, claimed a half share in the Deceased’s properties, the Apex Court held that the said facts were also shrouded with equally suspicious circumstances. There was no doubt that the Adoption Deed was registered but Section 16 of the Hindu Adoption and Maintenance Act, 1956 (Presumption as to registered documents relating to adoption) raises a presumption in favour of the registered document relating to the adoption. Subsequently, it was for the Respondent to rebut the said presumption of the Adoption Deed.

(ix) It was stated by the Appellant’s Guardian, who plays a pivotal role in the event of the death of the Deceased, was absent at the adoption ceremony of the Appellant and had no explanation for the same.

(x) Thereafter, as per the evidence of the Purohit (PW 7), he is stated to have conducted the ceremonies, but the same also leads to a doubt about whether such adoption has even taken place. The adoption ceremony is stated to have been performed at Sri Sri Raghunadha Swamy Temple at Bhapur, 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.

(xi) The Supreme Court further held that the Adoption Deed records the age of the Deceased-Venkubayamma as 70 years and further states that she was desirous of taking a male child in adoption as she had no male issues. The Appellant-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 the Deceased-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.


After carefully applying the aforementioned principles of law and considering the facts and circumstances of the case, the Apex Court held that the adoption of the Appellant by the Deceased on 18.04.1982 is not proved. The Appellant cannot be treated as her heir by adoption. Further, the Will dated 03.05.1982 was also not proved in accordance with the law. Therefore, the Appellant is not entitled to claim any right or share in the Deceased’s properties. Thus, the Supreme Court upheld the Order passed by the High Court Order dated 11.12.2006 and thereby dismissed the Appeal filed by the Appellant.


Kartik Khandekar


The Indian Lawyer

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