# PENTAKOTA SA TY ANARA Y ANA AND ORS v. PENTAKOTA SEETHARA TNAM AND ORS

- **Citation:** [2005] Supp. 3 S.C.R. 719
- **Court:** Supreme Court of India
- **Decided:** 2005
- **Case number:** Civil Appeal Nos. 5941-5942 of 2005
- **Bench:** Ruma Pal, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pentakota-sa-ty-anara-y-ana-and-ors-v-pentakota-seethara-tnam-and-ors-20917
- **Pages:** 28

## Headnote

B
Hindu Law
Hindu Succession Act, 1956-Teslamentary Succession-Evidence Act,
1872-Seclions 68, 114-Execution and proof of Will-Deceased father C
executing Will in favour of appellants, children through second wife-Will
attested-Altes/or examined proving sound disposing state of mind-Signature
of sub-registrar at the time of registration-Written Statement filed by testator
in a suit filed by alleged adopted son about execution of Will-Held, the
execution of Will proved beyond doubt.
D
Will-Suspicious circumstances-Alleged adopted son claiming
execution-Propounder merely present during registration-Held, mere
presence of propounder is not a suspicious circumstance.
Adoption-Proof of-Foster son claiming to have been adopted-Written E
statement filed by adoptive father denying adoption-No date of adoplionNo ceremony of venue of adoption nor any specific custom pleaded-Held,
adoption not proved.
One P father of the appellants got married with the first respondent.
Since the marital life with the first wife was not very happy, P started living F
with one A who was divorced from her first husband as per caste custom in
the year 1954. A and P started living as man and wife in the same village
itself. A was accepted as the second wife. P and A begot two sons, viz., the
appellants. The second respondent is the youngest son of natural brother of
P. His father and mother died when he was aged hardly 3 years. P brought G
him up and fostered him. The appellants' father performed the marriage of
his daughter in a befitting manner and printed invitation cards in his own
name as father. He executed a Will regarding his properties and got it
registered. Under the said Will, he made a provision to the first wife, - the
first respondent herein for a decent living and given the rest of his properties
719
H
720
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A to the appellants born through A (second wife). First wife of P filed a suit
seeking a decree for maintenance with a charge on P's half share in the plaint
schedule property and to provide her separate residence. It was stated in the
plaint that P died intestate pending the suit and that the Will is neither true
nor valid nor binding on her. She also denied the execution, attestation,
B registration etc. It was claimed in the plaint that consequent on the death of
P, the right of the plaintiffs against the estate of the deceased P comes into
effect.
The second respondent filed a suit seeking a decree for partition and
separate possession of his half share in the family properties claiming for
C the first time as the adopted son of P and his first wife. The appellants were
added as LRs of the deceased first defendant. It was stated in the plaint that
his adoptive parents requested the natural parents in the year 1966 to give
him in adoption to them and he was given in adoption to P and that the adoption
ceremony took place in accordance with Hindu law, customs and usage. It was
further stated that P died intestate and on his death his share of the plaint
D schedule properties devolved upon his widow and the adopted son and
consequently he will be entitled to not only his half share as adopted son but
also half share in the share of P. So in all he claimed 3/4th share in all the
plaint A, Band C schedule properties in the plaint, and the remaining 1/4th
share for the first wife.
E
The appellants' father P contested both the suits and filed written
statement. He denied the adoption and stated that he came into contact with
one A who divorced her husband as per their caste custom 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
p during the year 1980, he executed a Will in respect of his properties and got
it registered. P died pending suit. The suits were decreed and the appeals by
the appellants also dismissed. Before this Court, Appellant contended that
the High Court and the Co

## Text

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PENTAKOTA SA TY ANARA Y ANA AND ORS.
A
v.
PENTAKOTA SEETHARA TNAM AND ORS.
SEPTEMBER29, 2005
[RUMA PAL AND DR. AR. LAKSHMANAN, JJ.]
B
Hindu Law
Hindu Succession Act, 1956-Teslamentary Succession-Evidence Act,
1872-Seclions 68, 114-Execution and proof of Will-Deceased father C
executing Will in favour of appellants, children through second wife-Will
attested-Altes/or examined proving sound disposing state of mind-Signature
of sub-registrar at the time of registration-Written Statement filed by testator
in a suit filed by alleged adopted son about execution of Will-Held, the
execution of Will proved beyond doubt.
D
Will-Suspicious circumstances-Alleged adopted son claiming
execution-Propounder merely present during registration-Held, mere
presence of propounder is not a suspicious circumstance.
Adoption-Proof of-Foster son claiming to have been adopted-Written E
statement filed by adoptive father denying adoption-No date of adoplionNo ceremony of venue of adoption nor any specific custom pleaded-Held,
adoption not proved.
One P father of the appellants got married with the first respondent.
Since the marital life with the first wife was not very happy, P started living F
with one A who was divorced from her first husband as per caste custom in
the year 1954. A and P started living as man and wife in the same village
itself. A was accepted as the second wife. P and A begot two sons, viz., the
appellants. The second respondent is the youngest son of natural brother of
P. His father and mother died when he was aged hardly 3 years. P brought G
him up and fostered him. The appellants' father performed the marriage of
his daughter in a befitting manner and printed invitation cards in his own
name as father. He executed a Will regarding his properties and got it
registered. Under the said Will, he made a provision to the first wife, - the
first respondent herein for a decent living and given the rest of his properties
719
H
720
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A to the appellants born through A (second wife). First wife of P filed a suit
seeking a decree for maintenance with a charge on P's half share in the plaint
schedule property and to provide her separate residence. It was stated in the
plaint that P died intestate pending the suit and that the Will is neither true
nor valid nor binding on her. She also denied the execution, attestation,
B registration etc. It was claimed in the plaint that consequent on the death of
P, the right of the plaintiffs against the estate of the deceased P comes into
effect.
The second respondent filed a suit seeking a decree for partition and
separate possession of his half share in the family properties claiming for
C the first time as the adopted son of P and his first wife. The appellants were
added as LRs of the deceased first defendant. It was stated in the plaint that
his adoptive parents requested the natural parents in the year 1966 to give
him in adoption to them and he was given in adoption to P and that the adoption
ceremony took place in accordance with Hindu law, customs and usage. It was
further stated that P died intestate and on his death his share of the plaint
D schedule properties devolved upon his widow and the adopted son and
consequently he will be entitled to not only his half share as adopted son but
also half share in the share of P. So in all he claimed 3/4th share in all the
plaint A, Band C schedule properties in the plaint, and the remaining 1/4th
share for the first wife.
E
The appellants' father P contested both the suits and filed written
statement. He denied the adoption and stated that he came into contact with
one A who divorced her husband as per their caste custom 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
p during the year 1980, he executed a Will in respect of his properties and got
it registered. P died pending suit. The suits were decreed and the appeals by
the appellants also dismissed. Before this Court, Appellant contended that
the High Court and the Courts below cannot overlook Ex.89 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
G no material on record to show that the Will was executed in suspicious
circumstances to the satisfaction of the Court, that the Courts below failed to
note that the evidence of DW5 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, that Respondent No. 2 was not a member of the family
H and he was not adopted, that P was alive when the suits were filed and he filed
PENTAKOTASA TY ANARA YANA>: PENTAKOTA SEETHARA TNAM
721
a detailed written statement which had a vital bearing on the adjudication of A
the case, that Respondent No. 2 was the son of his elder brother and he was
never adopted but was only looked after since his parents died young, that he
has executed a Will regarding his properties and got it'registered in 1980
and that he made a provision to his first wife for a decent living and gave the
rest of the properties to the appellants herein who he claimed were his B
children, that Respondent No. 2 and his brothers batched upon a plan to grab
at the property and the suit was virtually a result of that concerted action,
that before the suit came up for trial, P died and as such he could not be
examined, and that the crucial questions that arise in this case are the validity
of the Will dated 20.02.1980 Ex.89 and the genuineness of the factum of
adoption.
Respondents contended that the suits filed by the appellants are based
c
on the alleged right arising out of the will executed by P and that the trial
Court as well as the High Court disbelieved the Will and dismissed the suits,
that the appellants have not even made any submissions before the High court
that the property is not the joint family property, that there was neither D
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, that the appellants have not
raised the plea with regard to the nature of the property being joint or self- E
acquired and, therefore, 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, that the Courts below have given concurrent
findings on pure question of facts, that 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 F
practice, 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, that on a perusal of the
evidence of all the 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 G
corroborated by the oral evidence, 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, that the Will is replete with false
statements, on the basis of the evidence of the appellants themselves, that the
statement about the paternity of the appellants is false and it is evidenced by
various documents and that the propounder takes active interest in getting H
722
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A the Will executed which give rise to a suspicious circumstance.
Allowing the Appeals, the Court
HELD: I. The Will is a registered Will. DWS, the attestor and DW6,
the scribe have been examined to prove the Will. As already noticed, the Will
B gives property to respondent No. I - the first wife of the testator and the
remaining properties to the appellants, who according to the testator, were
his children through his second wife. The written statement filed in the suit
by pis 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
C 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. The evidence adduced by
the appeUants/propounders are sufficient to satisfy the conscience of the court
of law that the Will was duly executed by the testator. 1735-E-F-G-HJ
2. The findings of the High Court and the trial Court are not only
D contrary to the facts on record but also overlooked the law governing the
aspects of proof of Will. Section 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
E 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. 1736-C-D-E]
F
3. A 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 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
G taken in the document. After all this, the sub-registrar signed the deed.
1737-C-D-EI
4. Unlike 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 ll'orld cannot say whether it is his Will or not
H and this aspect naturally introduces an element of solemnity in the decision
PENfAKOTASATYANARAYANAv.PENTAKOTASEETHARATNAM
723
of the question as to whether the document propounded is proved to be the A
last Will and the testament of departed testator. In the instant case, the
propounders who were required to remove the said suspicion have let in clear
and satisfactory evidence. There was unequivocal admission of the Will in
the written statement filed by P. In his written statement, he has specifically
averred that he had executed the Will and also described the appellants as
his sons and A as his wife as the admission was found in the pleadings. The B
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 C
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 P and Ex.B9 was his last will. 1737-D-E-F; 737-G-H; 738-A-B-C)
5 . .It is true that registration of Will does not dispense with the need of
proving, execution and attestation of a document which is required by law to D
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 E
the signatures of the attesting 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 F
correctly recorded. The burden of proof to prove the Will has been duly and
satisfactorily discharged by the appellants. The onus is discharged by the
propounder adducingprimafacie evidence proving the competence of the
testator and execution of the Will in the manner contemplated by law.
1738-C-D-E-Ff G
6. It is settled by catena of decision that any and every circumstance is
not a suspicious circumstance. Even in a case where active participation and
execution of the Will by the pro pounders/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 H
724
SUPREME COURT REPORTS [2005] SUPP. 3 S.CR.
A 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.
(738-F-G-H]
B
Sridevi and Ors. v. Jayaraja Shetty and Ors., (2005] 2 SCC 784, referred
to.
7. 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. The findings of the High Court and the trial
C court about the alleged suspicious circumstances 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 the Respondent No. 2 in the
Will and 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 PWI the testator
I
D P and AK were living together as man and wife. Therefore, there is nothing
wrong if the will refers to AK 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 the written statement filed by P. There is ample evidence
to prove that P has treated the appellants as his children and solemnized their
E marriages. (739-C-D-E-F]
•
Uma Devi Nambiar and Ors. v. T.C. Sidhan (Dead), (2004] 2 SCC 321,
referred to.
8. The trial Court has made much about the draft Will aspect. This is
hardly a suspicious circumstance. DW6 says that 4 male persons accompanied
F DI. This is hardly a suspicious circumstance. DW5 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
registered Will. DW4 (Appellant No. 1) in his evidence said that testator alone
G 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
H negate the Will. The mere presence of DW4 (appellant No. 1) would not make
PENTAKOTASATYANARAYANAv.PENTAKOTASEETIIARATNAM
725
it a suspicious circumstance. Assuming the presence to be true, that does A
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. (740-G-H; 741-A-B-C)
9. The evidence for adoption given by PWsl, 3 and 6, DW2 and DW3
falls short of the required proof in law. The Respondents have a heavy onus to B
discharge the burden which lies on them to prove the factum of adoption. 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. None of the witnesses have deposed the date of alleged
adoption function. The alleged adoption is not true and valid and the alleged C
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 the appeals are
now allowed, 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. The Will ExB9 is a true and genuine document and the appellants D
and P will be entitled to the properties respectively allotted to them under the
said Will. The alleged adoption is not true and, therefore, the alleged adopted
son has no right or any interest in any of the suit properties. In view of the
fact that PS 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. (742-F-G; 743-G-H; 744-E; 745-E-F-G-Hl
E
Rahasa Pandiani (Dead) by LRs and Ors. v. Gokulananda Panda and
Ors., (1987) 2 SCC 338 and Kishori Lal v. Mt.Chaltibai, AIR (1959) SC 504,
referred to.
Madhu Sudan Das v. Smt. Narayanibai and Ors., [19831 I SCC 35; F
Lakshman Singh Kothari v. Smt. Rup Kanwar, [1962) 1SCR477 and L. Debi
Prasad (Dead) by LRs v. Smt. Tribeni Devi and Ors., (1970) l SCC 677, cited.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5941-5942 of
2005.
From the Judgment and Order dated 20.6.2003 of the Andhra Pradesh
High Court in A. Nos. 720/97, 990/97 and Cross Objections.
K.V. Vishwanathan, A. Ramesh and T.N. Rao for the Appellants.
G
P.S. Narsimha, Ananga Bhattacharya and Avijeet Kumar Lala for Mis H
726
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A P.S.N. & Co. for the Respondents.
The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. Leave granted.
B
The above two appeals were filed against the judgment and order dated
c
D
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.
The appellants before the High Court are the defendants in O.S. Nos.
7 and 287of1984 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.
E Nos. 7 of 1984 and 287 of 1984 decreed the suits. The other two suits filed
by the appellants for in junction 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.
F
The 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
G year 1952. The marital life with the first wife was not very happy. Srirammurthy
s(arted 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. Srirammurthy and Alla Kantamma
H begot two sons - Pentakota Satyanarayana and Pentakota Prasadarao and one
PENTAKOTASATYANARA YANA v. PENTAKOTASEETHARATNAM[LAKSHMANAN,J.] 727
daughter Villuri Susheela in the year 05.01.1956, 03.11.1958 and 17.12.1960. The A
second respondent Krishna 8hagavan was born on 01.01.1963. He is the
youngest son of one Paramesu, who is the natural brother of Pentakota
Srirammurthy. Krishna 8hagavan'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 B
appellant on 12.02.1981 in a befitting manner and printed invitation cards in
his own name as father which is marked as Exhibits 84 and 85. 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 C
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 89 in the courts below and is annexed and marked as
Annexure-Pl. 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. D
It was stated in the plaint that Pentakota Srirammurthy died intestate on
20.11.I 985 pending the suit and that the Will is neither true nor val id 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 E
Srirammurthy comes into effect.
It was 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 F
herein (Defendant Nos. 3-5). It was also stated that the second respondent
Krishna 8hagavan 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 and 8 schedule to the plaint.
The second respondent Krishna 8hagavan 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 ofSeetharatnam
G
and Srirammurthy. Srirammurthy and Seetharatnam were impleaded as defendant
Nos. I and 2 and the appellants were added as LRs of the deceased first H
728
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A 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
B 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
C 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 ir.testate 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
D consequently Krishna Bhagavan will be entitled to not only his half share as
adopted son but also half share in the share of Sriramm urthy. 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 I/4th share belongs to Seetharatnam.
The appellants' father Srirammurthy contested both the suits. He had
E 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
F 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
apait, 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.
G Thus she claimed absolute rights in respect of the estate of the deceased or
at least I/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,
H PWs 1-6 were examined and on behalf of the defendants DWs 1-8 were
(
PENTAKOTASATYANARAYANAr.PENTAKOTASEETHARATNAM[LAKSHMANAN,J.] 729
examined. As already noted, Special Leave Petition Nos. 21835 and 21836 of A
2003 were filed against the judgment and decree in A.S. Nos. 720 of 1997 and
990of1997.
We 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 B
and documentary and made their meticulous submissions at length in support
of their respective contentions.
Mr. 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 C
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 D
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 fil.ed a detailed written statement which had a vital bearing
on the adjudication of the case. He 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-IO 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.
E
F
It was further stated i.n the written statement that Krishna Bhagavan and his
brothers hatched upon a plan to grab at the property and the suit was G
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 H
730
SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
A 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, PW!, PW3, PW6, DW2 and DW3 falls short of the required proof in
B 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 v. Parvin Kumari, reported in (1952] SCR 825; Badri
Prasad v. Dy. Director of Consolidation and Ors., reported in [ 1978] 3 SCC
C 527; S.P.S Balasubramanyam v. Suruttayan alias Andali Padayachi and Ors.,
reported in (1994] 1 SCC 460, Sabha Hymavathi Devi v. Setti Gangadhara
Swamy and Ors., reported in (2005] 2 SCC 244. He also cited various decisions
to the effect that there is no absolute bar for interference on concurrent
findings.
D
Mr. 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
E 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 011 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
F 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
G 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.
H Narsimha submitted that the Courts below have given concurrent findings on
. '
.. ,
PENT AK OTA SA TY ANARA Y ANA'" PENTAKOTASEETHARA TNAM [LAKSHMANAN,J.] 73 J
pure question of facts. This Court would not ordinarily interfere with these A
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 v. Mahabir Prasad and Ors.,
[1951] SCR 277 and Mis Tulsidas Khimji v. Their Workmen, [1963] 1 SCR 675.
On the factum of adoption, Mr. Narsimha submitted that it has been the B
case of the plaintiff and defendant No. 2 in O.S. No. 287of1984 that defendant
No. 2 is the adopted son of defendant No. I and that Seetharatnam,
Srirammurthy and Krishna Bhagavan constituted a Hindu Joint Family owning
the plaint schedule properties. It is also pleaded that defendant No. I adopted
defendant No. 2 from his natural parents as per Hindu law, customs and usage C
and in view oft he said adoption, defendant No. 2 is entitled to his half share
in the said property.
Defendant No. 2 also filed a suit for partition in 0.A. No. 7 of 1984
against defendant No. I and the plaintiff wherein he pleaded that DI and the
plaintiff adopted him from his natural parents in accordance with Hindu law, D
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 E
parents to herself and DI and mantras were also recited by the said Purohit
during the adoption ceremony. The Headmaster of the school PW3 where D2D5 studied deposed that the Photostat copy of the admission application
form pertains to D2 which also shows the name of DI as the father of D2 and
that DI signed in the originals of the said document in the capacity of the F
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 DI 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 DI and the plaintiff. DW2 and DW3 further deposed that G
adoption ceremony was officiated by Kondal Rao as Purohit and the natural
parents of D2 handed over D2 to DI and the plaintiff along with the coconut
who in turn accepted the same. Thus Mr. Narsimha submitted that on a
'
perusal of the above \;vidence of all the said witnesses, it can be seen that
th.e factum of adoption' of D2 by plaintiff and D2 is amply proved and that H
732
SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
A their evidence has been duly corroborated by the oral evidence of DWI 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.
Mr. Narsimha then attacked the genuineness of the Will. He submitted
B that 03 and 05 (appellants) relied mostly on the Will Ex-B9 to disprove the
contention of the plaintiff and 02 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
C 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 v. Smt. Narayanibai and Ors., [1983] l SCC 35, Lakshman
D Singh Kothari _v. Smt. Rup Kanwar, (1962] 1 SCR 477 and L. Debi Prasad
(Dead) by LRs. v. Smt. Tribeni Devi and Ors., [1970] I SCC 677.
Arguing 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. According to him, the Will is replete with false statements, namely,
E 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
p 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
G material and goes to the route of the matter.
Mr. 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
H to the same at the appropriate stage.
PENTAKOTASA TY ANARA YANA 1>. PENTAKOTA SEETHARA TNAM [LAKSHMANAN,J .) 733
In the background facts and circumstances, the following questions of A
law arise for consideration by us:-
I.
Whether the second defendant Krishna Bhagavan is the adopted
son of the first defendant Srirammurthy;
2.
Whether Ex.B9 Will is valid and whether it is proved in compliance B
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?
We have 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.
c
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 D
High Court and the lower Court.
We have to bear in mind that P. Srirammurthy married P. Seetharatnam
in 1951. According to him, soon.after the marriage since he did not derive
marital pleasure with respondent No. I, he started living with one A. Kantamma
and got 3 children i.e. the appellants herein on 05.01.1956, 03.11.1958 and E
17.12.1960. The birth of these children through P. Srirammurthy is denied by
respondent Nos. I and 2. Their case is that the appellants were born to A.
Kantamma t.hrough her husband A. Kanakaiah. According to respondent
Nos. I and 2, since P. Srirammurthy and Seetharatnam were issue less they
adopted Krishna Bhagavan, respondent No. 2.