# CASE DETAILS MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, THROUGH LRS.)

- **Citation:** 2023 INSC 1004
- **Court:** Supreme Court of India
- **Decided:** 2023-11-20
- **Case number:** Civil Appeal No. 2435 of 2010
- **Bench:** C.T. Ravikumar, Sanjay Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-moturu-nalini-kanth-v-gainedi-kaliprasad-dead-through-lrs-36952
- **Pages:** 28

## Headnote

Issue for consideration: Suit fi led 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 justifi ed in allowing
the appeal fi led by V's grandson, 'GK'.
Evidence Act, 1872 - ss.68, 69 - Legal requirements to prove
a Will - Suit was fi led 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
645
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 suffi ciently - 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
signifi cance - 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]
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.)
646
SUPREME COURT REPORTS
[2023]

## Text

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[2023] 16 S.C.R. 644 : 2023 INSC 1004
644
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 fi led 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 justifi ed in allowing
the appeal fi led by V's grandson, 'GK'.
Evidence Act, 1872 - ss.68, 69 - Legal requirements to prove
a Will - Suit was fi led 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
645
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 suffi ciently - 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
signifi cance - 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]
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.)
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..
647
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 fi led 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 fi led 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, fi led through his guardian,
was for declaration of his title to the suit properties that had belonged to
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.)
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 fi led 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?'
649
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 affi davit 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
affi davit 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.
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.) [SANJAY KUMAR, J.]
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 crossexamination 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
651
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 affi davit 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 affi davit. 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 offi ce 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.
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.) [SANJAY KUMAR, J.]
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 identifi ed 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 offi cial 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 affi davit. 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 affi xing 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
653
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 affi davit. 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 crossexamination, 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 Offi ce 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 identifi ed her as the woman sitting,
wearing glasses, with a baby in her lap, in Ex. A3. He also identifi ed 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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.) [SANJAY KUMAR, J.]
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). .......
655
(b). .......
(c). The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affi x 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 specifi cally 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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.) [SANJAY KUMAR, J.]
656
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[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 affi x 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 affi rmed 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 another3, 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 eff ect 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
657
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 eff ect 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 befi tting 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 eff ace
or emasculate the essence and effi cacy of Section 63 of the Act and
5
 (2015) 8 SCC 615
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.) [SANJAY KUMAR, J.]
658
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[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 fl exibility 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 benefi t 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 specifi cally
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
659
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 eff ect 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 suffi cient 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 eff ect 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
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD,
THROUGH LRS.) [SANJAY KUMAR, J.]
660
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[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 diff erence 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 affi davits was not suffi cient
to satisfy the requirement of Section 69 of the Evidence Act. More so, as
Balaga Sivanarayana Rao (PW 6), the scribe of those affi davits, 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 affi davit, supposedly of Pydi
12 2010 (2) Madras Weekly Notes (Civil) 704
661
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.