PENTAKOTA SATYANARAYANA AND ORS.versusPENTAKOTA SEETHARATNAM AND ORS.

               PENTAKOTA SA TY ANARA YANA 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-Proofof-Foster son claiming to have been adopted-Written            E
statement filed by adoptive father denying adoption-No date of adoplion-
No 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
           PENTAKOTASATYANARA YANA>: PENTAKOTA SEETHARATNAM                 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.                                                                           c
      Respondents contended that the suits filed by the appellants are based
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]

          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
F   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]

          Sridevi and Ors. v. Jayaraja Shetty and Ors., (2005] 2 SCC 784, referred
    to.
B          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.
                                                                                    G
     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.

        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
    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.
c
           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
D   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.
                                                                                G
      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
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 E
    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 F
    statement, he most importantly stated that he has executed a Will regarding
    his properties and got it registered in 1980 and that he made a provision to
    Seetharatnam for a decent living and gave the rest of the properties to the
    appellants herein who he claimed were his children through Alla Kantamma.
    It was further stated 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
 PENTAKOTA SATYANARA YANA'" PENTAKOTASEETHARATNAM [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 D2-
D5 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.
 PENTAKOTASATYANARA YANA 1>. PENTAKOTA SEETHARATNAM [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?
                                                                                 c
      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.
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. Their further case is that the
properties of P. Srirammurthy are ancestral and Krishna Bhagavan has half f
share in the same and after the death of P. Srirammurthy, Krishna Bhagavan
had 3/4th share and Seetharatnam, the remaining I/4th share. In January, 1984,
0.A. No. 7 of 1984 was filed by the second respondent - Krishna Bhagavan
against Srirammurthy and the appellants herein as well as Seetharatnam claiming
partition and possession. In February, 1984 Seetharatnam filed O.S. No. 287 G
of 1984 claiming maintenance against Srirammurthy. In both the suits, the
theory of adoption of Krishna Bhagavan was set up. Srirammurthy died on
20.11.1985 and the suits were amended while Seetharatnam claimed additional
partition and sought I/4th share that the remaining share to go to Krishna
Bhagavan. Krishna Bhagavan amended his plaint seeking partition in the
same ratio. Both prayed for possession and mesne profits. It is pertinent to H
    734                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A   notice that when the suits were filed Srirammurthy was alive and filed a
    detailed written statement which has a vital bearing for the adjudication of
    this case. He specifically denied the factum of adoption and stated that
    Krishna Bhagavan was the son of his elder brother P. Paramesu and that
    Krishna Bhagavan was never adopted but was only looked after since Krishna
    Bhagavan's .parents died young. Most importantly, he submitted that he
B   executed a Will regarding his property and got it registered in 1980. After
    filing the written statement and before the suit came up for trial, Srirammurthy
    died and as such he could not be examined.

          The trial Court framed necessary issues in regard to the validity of the
C registered Will, validity of the adoption and whether Krishna Bhagavan was
    entitled to any share in the suit property and to what extent.

           The appellants also filed written statement broadly on the same lines as
    signed by their father Srirammurthy. The suit filed by Seetharatnam in O.S. No.
    287 of 1984 was treated as main suit. Before the trial Court, 6 witnesses were
D   examined on the side of the respondents and 8 witnesses were examined on
    the side of the appellants. P. Seetharatnam examined herself as PW I, Krishna
    Bhagavan examined himself as DWI. P. Satyanarayana, Manka Anandarao
    (attestor of the Will) and Kamisetti Saibaba, the scribe of the Will were
    examined on the side of the appellants. With regard to the adoption of
    Krishna Bhagavan apart from PW!, PW3, PW6, DW2, DW3 spoke through
E   their evidence, their depositions would be referred to at the appropriate place.
    If the Will is held to be proved and the adoption is held to be not proved,
    then irrespective of the paternity the appellant should succeed since they are
    legatees under the will. Hence, the crucial question that arises in this case is
    the validity of the Will dated 20.02.1980 and the genuineness of the factum
p   of adoption. The trial Court decreed both the suits filed by Krishna Bhagavan
    and Seetharatnam respectively. The appellants filed appeals to the High Court
    and the respondents filed cross objections on the mesne profits issue. The
    High Court dismissed all the appeals of the appellants and allowed the cross
    objections of the respondents.

G       We have perused the original Will Ex.B9 which was written in Telugu
  and the translated copy which has been filed before us. The Telugu version
  of the document was explained to me by my Sr. Personal Assistant - Mr. R.
  Natarajan who knows Telugu very well. With his help, I perused the
  endorsements. The Will was registered on 20.02.1980. The signature of
H Srirammurthy was identified by Vanka Aanantha Rao and Kameswara Rao.
 PENTAKOTA SATYANARA YANA v. PENTAKOTASEETHARATNAM [LAKSHMANAN,J.] 73 5


 The sub-registrar has signed the document. The registration endorsement is A
also made at page no. 2 of the document. On page 3 bottom, Srirammurthy
has made his signature and his signature was witnessed by Vanka Anantha
 Rao and T. Samba Murthy. The document was prepared by Kamisetti Saibaba.
His signature and the rubber stamp are at the bottom of page no. 3. As far
 as Ex.89 Will is concerned, the appellants being the profounder, the initial B
onus will be on them to prove execution of the Will. Thereafter, the onus
 would shift to the respondents. They have to establish their case of undue
 influence or coercion. Then the onus would shift to the appellants to remove
the suspicious circumstances if any. Our attention was drawn to the findings
 of the High Court which clearly holds the Will be duly proved and that the
testator was in sound disposing state of mind. However, the Courts below C
 have assumed certain non-existent circumstances and have held the Wi:t as
 not proved. It is not in dispute that on the date of the will, as has been
 pleaded in the written statement of P. Srirammurthy, the properties were
 absolute properties of P. Srirammurthy and he had absolute right to Will it
 away. Under the Will, P. Seetharatnam has been given a large extent of
 property. The appellants are entitled to the property as legatees along with D
 P. Seetharatnam who is entitled to her share under the Will. It is primarily
 submitted that the Will is proved and the adoption is not proved. We shall
now see the circumstances under which the Will is proved. In the instant
case, the Will has been duly proved and the High Court and the lower Court
in their discussion has even held so. It has also been held that the testator E
was hale and healthy and in a sound state of mind. The Will is a registered
Will. DW5, the attestor and DW6, the scribe have been examined to prove
the Will. As already noticed, the Will gives property to respondent No. I
Seetharatnam, the first wife of the testator and the remaining properties to. the
appellants, who according to the testator, were his children and the children
through his second wife A. Kantamma. We have already referred to the F
written statement filed by Srirammurthy in the suit. The statement made by
him in the written statement is one of the most important factors which
authenticates the genuineness of the Will. No evidence has been led in by
the respondents to show the exercise of any fraud or undue influence at the
time of execution of the Will. No evidence was adduced to show that the G
testator is not in sound state of mind and in fact, the finding is that he was
of sound mind. In our opinion, the evidence adduced by the appellants/
profounders are sufficient to satisfy the conscience of the Court of law that
the Will was duly executed by the testator. The trial Court has reached certain
findings with regard to the suspicious circumstances. They are a) the exclusion
of Krishna Bhagavan from the Will and bequethal of major portion in favour H
    736                      SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A   of the appellants; b) the appellants are not the children of the testator and
    the properties are ancestral properties; c) there was contradiction between
    evidence of DW5 attestor and DW6 Scribe with regard to the presence of
    DW4 and the husband of DW5. d) there is no evidence to state that the
    recitals to draft the Will are based on instructions given by Srirammurthy. e)
B   the Will had incorrect recitals about Alla Kantamma being the wife of
    Srirammurthy and the appellants being the children of Srirammurthy.

         The above findings, in our opinion, are erroneous. The trial Court also
  recorded wrongly a finding that the Will was not revocable overlooking the
  fact that in the very paragraph the testator reserved his right to cancel the
C Will and execute another Will. In our view, the findings of the High Court and
  the trial Court are not only contrary to the facts on record but also overlooked
  the law governing the aspects of proof of Will. 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
D witness alive and subject to process of the Court and capable of giving
  evidence, he must be called to prove execution. Execution consists in signing
  a document written out, read over and understood and to go through the
  formalities necessary for the validity of legal act. Section 63 of the Indian
  Succession Act gives meaning of attestation as under:-

E           "Section 63: Execution of unprivileged will.- Every testator, not
            being a soldier employed in an expedition or engaged in actual warfare,
            (or an airman so employed or engaged) or a mariner at sea, shall
            execute his will according to the following rules:
            (a) The testator shall sign or shall affix his mark to the will, or it shall
F               be signed by some other person in his presence and by his
                direction.
            (b) The signature or mark of the testator, or the signature of the
                person signing for him, shall be so placed that it shall appear that
                it was intended thereby to give effect to the writing as will.
G
            (c)   The will shall be attested by two or more witnesses, each of
                  whom has seen the testator sign or affix his mark to the will or
                  has seen some other person sign the will, in the presence and by
                  the direction of the testator, or has received from the testator a
                  personal acknowledgment of his signature or mark, or of the
H                 signature of such other person; and each of the witnesses shall
 PENTAKOTA SATYANARA YANA v. PENTAKOTASEETHARATNAM [LAKSHMANAN,J.] 73 7

             sign the will in the presence of the testator; but it:;.shall not be A
             necessary that more than one witness be present at the same
             time, and no particular form of attestation shall be necessary."

       It is clear from the definition that the attesting witness must state that
each of the two witnesses has seen the executor sign or affix his mark to the
instrument or has seen some other persons sign the instrument in the presence       B
and by the direction of the executant. The witness should further state that
each of the attesting witnesses singed the instrument in the presence of the
executant. These are the ingredients of attestation and they have to be
proved by the witnesses. The word 'execution' in Section 68 includes
attestation as required by law.
                                                                                    c
       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, in our opinion, sufficient attestation within the meaning
of the Act. The endorsement by the sub-registrar that the executant has
acknowledged before him execution did also amount to attestation. In the D
original document the executants signature was taken by the sub-registrar.
The signature and thumb impression of the identifying witnesses were also
taken in the document. After all this, the sub-registrar signed the deed. 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 world cannot say whether it is his Will or not and this aspect E
naturally introduces an element of solemnity in the decision of the question
as to whether the document propounded is proved to be the last Will and the
testament of departed testator.

       In the instant case, the propounders were called upon to show by
satisfactory evidence that the Will was signed by the testator, that the F
testator at the relevant time was in a sound and disposing state of mind, that
he understood the nature and effect of the dispositions and put his signature
to the document on his own freewill. In other words, the onus on the
propounder can be taken to be discharged on proof of the essential facts
indicated above. It was argued by learned counsel for the respondent that G
propounders themselves took a prominent part in the execution of the Will
which confer on them substantial benefits. In the instant case, the propounders
who were required to remove the said suspicion have let in clear and
satisfactory evidence. Jn the instant case, there was unequivocal admission
of the Will in the written statement filed by P. Srirammurthy. In his written
statement, he has specifically averred that he had executed the Will and also H
    738                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A described the appellants as his sons and Alla Kantamma as his wife as the
    admission was found in the pleadings. The case of the appellants cannot be
    thrown out. As already noticed, the first defendant has specifically pleaded
    that he had executed a Will in the year 1980 and such admissions cannot be
    easily brushed aside. However, the testator could not be examined as he was
    not alive at the time of trial. All the witnesses deposed that they had signed
B   as identifying witnesses and that the testator was in sound disposition of
    mind. Thus, in our opinion, the appellants have discharged their burden and
    established that the Will in question was executed by Srirammurthy and Ex.89
    was his last will. It is true that registration of the Will does not dispense with
    the need of proving, execution and attestation of a document which is required
C   by law to be proved in the manner as provided in Section 68 of the Evidence
    Act. The Registrar has made the following particulars on Ex.89 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 WiH and the signature of the identifying witnesses. The document also
    contains the signatures of the attesting witnesses and the scribe. Such
D   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 regu Iarly and duly performed and are correctly
    recorded. In our opinion, the burden of proof to prove the Will has been duly
E   and satisfactorily discharged by the appellants. The onus i.s discharged by
    the propounder adducing prima facie evidence proving the competence of
    the testator and execution of the Will in the manner contemplated by law. In
    such circumstances, the onus shift to the contestant opposing the Will to
    bring material on record meeting such prima facie case in which event the
    onus shift back on the propounder to satisfy the court affirmatively that the
F   testator did know well the contents of the Will and in sound disposing
    capacity executed the same.

         It is settled by a catena of decisions that any and every circumstance
  is not a suspicious circumstance. Even in a case where active participation
G and execution of the Will by the propounders/beneficiaries was there, it has
  been held that that by itself is not sufficient to create any doubt either about
  the testamentary capacity or the genuineness of the Will. It has been held that
  the mere presence of the beneficiary at the time of execution would not prove
  that the beneficiary had taken prominent part in the execution of the Will. This
  is the view taken by this Court in Sridevi and Ors. v. Jayaraja Shetty and
H Ors., [2005] 2 sec 784. In the said case, it has been held that the onus to
 PENTAKOTASATYANARAYANAv.PENTAKOTASEETHARATNAM[LAKSHMANAN,J.J 739

prove the will is on the propounder and in the absence of suspicious               A
circumstances surrounding the execution of the will proof of testamentary
capacity and the proof of signature of the testator as required by law not be
sufficient to discharge the onus. In case, the person attesting the Will alleges
undue influence, fraud or coercion, the onus will be on him to prove the same
and that as to what suspicious circumstances which have to be judged in the
facts and circumstances of each particular case.                                   B
      Mr. Narsimha, learned counsel for the respondents, submitt~d that the
natural heirs were excluded and legally wedded wife was given a lesser share
and, therefore, it has to be held to be a suspicious circumstance. We are
unable to countenance the said submission. The circumstances of depriving C
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.
This is the view taken by this Court in Uma Devi Nambiar and Ors. v.       re.
Sidhan (Dead), [2004) 2 sec 321.                                             D
       We have already referred to the findings of the High Court and the trial
Court about the alleged suspicious circumstances which, in our opinion, are
palpably erroneous. In fact, the circumstances are not suspicious at all. As
far as the High Court is concerned, it has only gone by the exclusion of
Krishna Bhagavan in the Will and the bequethal of major portion to the E
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 PW! the testator Srirammurthy and Alla Kantamma were
living together as man and wife. Therefore, there is nothing wrong if the will
refers to Alla Kantamma as wife of the testator. Similarly, the testator has p
referred to the appellants as his children in the Will. The very same stand has
been maintained in the written statement filed by Srirammurthy. There is ample
evidence to prove that Srirammurthy has treated the appellants as his children
and solemnized their marriages. DW-4's evidence prove this factor. It is
everybody's case that the testator and Alla Kan tam in a lived together and the
appellants were also living with them. Ex.BS voters list had shown them as G
children of the testator. DW4 has deposed that DWS's wedding (appellant
No. 3) was celebrated by printing invitation cards by the testator. DW7 says
the testator and Kantamma performed first appellant's marriage. Further, DW-
4 (appellant No. I) has said only because testator was having a Government
job as village Munsiff, he did not disclose in the official record that the H
    740                     SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A   appellants are his children. In this background, there is not.hing wrong if the
    testator described the appellants as his children particularly when the same
    stand was taken in his written statement also. Further, the stand of the
    testator in the written statement was that the properties are absolute properties
    and Krishna Bhagavan had no share once the adoption is not proved. The
    testator would be the sole surviving coparcener and the property would be
B   his absolute property. On the contrary, there is denial. There is no admission
    that the joint family consisted of the testator, Seetharatnam and Krishna
    Bhagavan and, therefore, there cannot be any doubt over the testator's
    capacity to bequeath.

C          Mr. Narsimha, learned counsel for the respondents, pointed out certain
    contradiction in the evidence of DW5, DW6 and DW4. DW5 testator stated
    that the testator came to his house and requested him to come to the Registrar
    Office. The Testator sent word to Samba Murthy, the other attestor who came
    to the house of DW5. the testator and the attestors went to Taluk Office and
    contacted DW6 Scribe. DW5 also stated that in the document writer's shed
D   the Will was scribed as per the instruction given by D 1. He stated a draft Will
    was prepared first as per the instructions given by DI. He stated that D l went
    through the said draft and thereafter a fair Will was prepared. He stated that
    thereafter they went to the Sub-Registrar Office and along with him another
    witness acted as an identifying witness, whom he does not know. Thereafter,
E   in cross-examination he says the testator sent word to Sambamurthy through
    one of his men and he states that testator contacted Saibaba and added
    "DW4 has not accompanied D 1 at that time". He also stated that he has not
    seen either petitioner No. 2 or petitioner No. 3 and Narayana Rao with D l at
    that time.

p          DW6 stated that DI brought the draft Will and asked him to scribe the
    same. This is nowhere contradicted by DW5. DW5 does not say that DJ
    (testator) did not bring a draft Will. It is quite natural for the testator to have
    a first draft Will in the pocket when he goes to a document writer. DW5 was
    asked to attest. DW6 also speaks about the execution and attestation. The
    trial Court has made much about the draft Will aspect. This is hardly a
G   suspicious circumstance. DW6 says that 4 male persons accompanied DI.
    This is hardly a suspicious circumstance. DW5 also states that there was
    another person whom he would not identify. The deposition was given in
    1997 (i.e. 17 years after the registration of Will) and the courts below ought
    not to have made a mountain out of a molehill and on that basis reject a duly
H   executed registered Will.
            PENTAKOTA SATYANARA YANA v. PENTAKOTASEETHARATNAM [LAKSHMANAN,J.] 741


                  Coming to the evidence of DW4 (Appellant No. I) his evidence is that       A
           testator alone went to execute the Will. He also states that he also went there
         · and he does not know whether his mother and brother accompanied him. He
           says that he has not seen the writing of the Will and he was not present at
           the time of registration. He also says that he did not go to the place where
           the document was scribed. Applying the law as set out above and assuming
           the worst against the appellants, no case of undue influence, coercion or         B
           fraud is made out to negate the Will. The mere presence of DW4 (appellant
           no. l) would not make it a suspicious circumstance. Assuming the presence
           to be true that does not mean undue influence was exercised and mere
           presence does not mean that a prominent part was played. Hence the Will has
·,   .
           been duly proved by the appellants.                                               C
                Mr. Narsimha advanced much argument about the school extracts marked
          as Ex.A6-A8, X6-XI I and XIS-X20. According to him, these documents no
          where show DI Srirammurthy as the father of the appellants. We have perused
          Ex. X series and AS-A9 series. We have perused AS-A9 in original and X
          series (Xerox copies). Ex.AS-A9 series were issued by the Headmaster of the        D
          school on 23.09.1996. It is seen from Ex.AS, Krishna Bhagavan was admitted
          on 01.02.1968 and he left the school on l S.06.1974. It is seen from Ex.A 7,
          Prasadarao was admitted on 11.08.1964 and he left the school on 31.05.1970.
          Ex.AS, Suseela was admitted on 20.07.1965 and she left the school on 30.08.1973.
          All these documents are true copies and were issued by the Headmaster on           E
          23.09.1996.

                 In the counter affidavit filed in this Court on behalf of respondent Nos.
           I and 2, the respondents once again have taken shelter under wild assumption
          that name of the father of the appellants was mentioned as one Arala Kanakaiah
          in the Ex.A6-A8. This clearly shows and proves the conduct of the respondents F
          in misleading the Court while Ex.A6-A8 reads something else as could be seen
          from para 31 of the trial Court judgment. As can be seen from Ex.A6, third
          appellant was born on 08.02.l 9SS and was admitted in the school on 10.06.1960.
          The Headmaster of Manda! Parishad, Elementary School was examined on
          22.01.1997. According to him, he joined the school S years before. He produced
          the documents along with the Photostat copies for relevant entries. Even G
          though originals of all the documents were available, only Photostat copies
          of the documents were put to the witnesses. The Headmaster also deposed
          that he has no personal knowledge of these documents. 07 (who is aged 70
          years) has deposed that 02-DS are the children of Kantamma born through
          the first defendant and he gave information regarding the birth of second H
    742                    SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A defendant to the government officials and he gave infonnation to the effect
    that Alla Kanakaiah was the father of D3. He further deposed that he gave
    such infonnation as DI was fearing that he would lose his job. He also
    deposed about the marriage performed by DI and Kantamma. In cross-
    examination, he stated that Alla Kanakaiah is the first husband of Kantamma
    and that D7. He also spoke about the caste divorce between Kanakaiah and
B   Kantamma. Ex.BS voters list has shown the appellant as children of the
    testator DI. DW4 has said only because testator DI was having a government
    job as Village Munsiff. He did not disclose in the official record that the
    appellants are his children. In this background, there is nothing wrong if the
    testator describes the appellants as his children particularly when the same
C   stand is taken in his written statement also. In our opinion, Ex. A5-A9 and
    X series cannot at all be looked into for any purpose and that the same would
    have been procured by the respondents to put forth their case.

          The Will is held to be proved and adoption is held to be not proved.
    The appellants should succeed since they are the legatees under the Will. We
D   also hold that P. Seetharatnam is also entitled to the properties given to her
    under Ex.89.

          Therefore, we are of the firm opinion that the Will is a genuine document
    and has .been duly proved by the appellants. The said issue is answered
    accordingly.
E
    ADOPTION:

           We have atfeady referred to the arguments advanced by both sides on
    adoption. Our attention was drawn to the findings recorded by the trial Court
    and by the High Court on this aspect and the relevant portion of the oral and
F   documentary evidence was also relied on by both sides. The evidence relied
    upon is that of PWsl, 3 and 6, DW2 and DW3. Their evidence, in our opinion,
    falls short of the required proof in law. The respondents, in our view, have
    a heavy onus to discharge the burden Iies on them to prove the factum of
    adoption. Krishna Bhagavan, the respondent herein seeks to exclude the
G   natural line of succession to the property by alleging adoption. The instant
    case is a classic example where the alleged adoptive father himself filed a
    written statement denying adoption. This apart, the following circumstances
    negate the genuineness of the adoption. This Court in the case of Rahasa
    Pandiani (Dead) by LRs and Ors. v. Goku/ananda Panda and Ors., [1987)
    2 sec 338 held as under:-
H
 PENTAKOTASA TYANARA YANA v. PENTAKOTASEETHARATNAM[LAKSHMANAN,J.] 743

       "An adoption would divert the normal and natural course of A
       succession. Therefore the court has to be extremely alert and vigilant
       to guard against being enshared by schemers who indulge in
       unscrupulous practices out of their Just for property. If there are any
       suspicious circumstances, just as the propounder of the Will is obliged
       to dispel the cloud of suspicion, the burden is on one who claims to
       have been adopted to dispel the same beyond reasonable doubt. In B
       the case of an adoption which is claimed on the basis of oral evidence
       and is not supported by a registered document or any other evidence
       of a clinching nature, if there exist suspicious circumstances, the same
       must be explained to the satisfaction of the conscience of the court
       by the party contending that there was such an adoption. (para 4)" C

     This Court held in Kishori Lal v. Mt. Chaltibai, AIR (1959) SC 504. We
can do no better than to quote the relevant passage from the above judgment
which reads as under:-

           "As an adoption results in changing the course of succession,          D
       depriving wives and daughters of their rights and transferring
       properties to comparative strangers or more remote relations it is
       necessary that the evidence to support it should be such that it is free
       from all suspicion of fraud and so consistent and probable as to leave
       no occasion for doubting its truth. Failure to produce accounts, in
       circumstances such as have been proved in the present case, would          E
       be a very suspicious circumstance. The importance of accounts was
       emphasised by the Privy Council in Sootrugun v. Sabitra; in Diwakar
       Rao v. Chandanlal Rao and in Kishorilal v. Chunilal; in Lal Kumar
       v. Charanji Lal and in Padamla v. Fakira Debya."

      No argument was advanced on the question of paternity. We are not,          F
therefore, dealing with the said question.

       Admittedly, Srirammurthy was living with Alla Kantamma since 1954.
The alleged adoption is in 1966. It is quite unbelievable that a person who
is estranged from his wife and according to him 3 children were born to him G
and Alla Kantamma in the years 05.01.1956, 03.11.1958 and 17.12.1960 joining
with Seetharatnam. The pleading itself shows the hatred they had for each
other due to Kantamma coming into the picture. No date of adoption is given
nor venue of the ceremony was given in the plaint. No specific custom is
pleaded and it is not even pleaded that giving of coconut is part of the
ceremony. Seetharatnam has not given the place or year in which the adoption H
    744                    SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A took place. She only states that she does not remember her age or the year
    in which adoption took place. She also says no muhurtham was fixed. For .
    Hindus, fixing of muhurtham or auspicious time is a very important event even
    for the smallest of functions and it is unbelievable that no muhurtham was
    fixed. The plaint also is bereft of details which is essential for proving the
B   adoption. PW6 stated that he does not remember the date or year of adoption.
    No adoption deed was executed for such an important event. DW2 says that
    about I 00 persons attended the ceremony whereas DW3 says that about 400-
    500 persons have attended. It is surprising that for such a big ceremony no
    invitation cards were printed. In the suit filed by Seetharatnam in her plaint
    and in the deposition she has averred that in the year 1977-78, she protested
C   her husband's attitude and raised dispute for maintenance and after the
    intervention of elders, 4-5 persons, her husband agreed to pay her maintenance
    as she claimed. Even then she does not claim maintenance for her adopted
    son. Further, she has not stated that the adopted son was living with her.

          Krishna Bhagavan, in his evidence, has stated that in 1978 he was in
D Xth standard and that point of time his father neglected him and was not
    providing him the necessary fund for his studies. If at all the adopted son
    was living with Sitaratnam and if at all the adoption is true, then she would
    have naturally claimed maintenance for his adopted son also or filed a suit
    then.
E         None of the witnesses have deposed the date of the alleged adoption
    function. All the witnesses have deposed in a parrot like manner stating that,
    the parties sat in a plank and a coconut was given to Pentakota Srirammurthy
    and Sitaratnam along with the child.

F        Further two witnesses Kanakayya and Venkatarao who were alive and
    who allegedly attended adoption ceremony have not been examined.

          Exhibit B7 (proceedings in O.S. No. 69/82) and Ex.B6 (suit extract) are
    relevant. This is a suit filed by the sister of Paramesu, where Krishna Bhagavan
    was arrayed as one of the parties in that suit. In that suit, Krishna Bhagavan
G   was shown as son of Paramesu represented by his brother and sister. The
    plaintiff in that suit has filed affidavit showing Krishna Bhagavan as son of
    Paramesu. Even in that suit, Pentakota Srirammurthy has deposed and described
    Krishna Bhagavan as his brother's son. When this was put to the Krishna
    Bhagavan in cross-examination he only pleaded ignorance.

H         In the above suit, Sitaratnam filed an application seeking for discharging
     PENTAKOTA SATYANARA YANA v. PENTAKOTASEETHARA TNAM [LAKSHMANAN,J.] 745


    the Court guardian and for appointing her as guardian for Krishna Bhagavan.        A
    In the affidavit in support of the application, she did not describe Krishna
    Bhagavan as her adopted son. This was in the year 1982. When this was put
    in cross to Seetharatnam, she did not deny but pleaded ignorance.

          Sriramamurthy declared his properties in LCC 428/Tuni/75. In that
    proceeding, Sriramamurthy deposed as witnesses and described Krishna               B
    Bhagavan as his brother's son. Krishna Bhagavan's name was shown as part
    of the family of Paramesu in their land ceiling declarations.

          PW3 has deposed to the effect that Ex.X 3 is the photocopy of the
    admission application pertaining to Krishna Bhagavan. Sriramamurthy himself        C
    signed in the place meant for Father or guardian. Hence, it cannot be
    contended that this a proof of adoption. It was a printed column for father
    or guardian. He could have meant to be a guardian as he did for all his elder
    brother's children. Further DWI Krishna Bhagavan is showr. as guardian for
    his natural sisters and brothers. PW4 has stated that in EX. Xl2 admissions
    pertaining to Krishna Bhagwan where Sriramamurthy was shown as father or           D
    guardian of 02. This is also a printed format.

          PW4 has stated that EX. X28 is the copy of the admission application
    of P. Bhaskara Satyanarayana who is the son of Paramesu, Sriramamurthy has
    signed the same in the capacity of guardian. Further in Ex.3 I Sriramamurthy
    signed in the admission form of Uma as guardian.                                   E
           We, therefore, hold that the alleged adoption is not true and valid and
    the alleged adopted son has no right in the suit property and mesne profits.
    It is now proved beyond doubt that the suit property is to belong to the
    appellants. Therefore, the question of paying the mesne profits does not arise.    F
    Since we now allow the appeals, mesne profits are due from the respondents.
    The appellants are at liberty to claim the mesne profits and recover the same
    from the respondents herein.

          In the result, we hold that the Will Ex.89 is a true and genuine document
    and the appellants and Seetharatnam will be entitled to the properties             G
'   respectively allotted to them under the said Will. We also hold that the alleged
    adoption is not true and, therefore, the alleged adopted son Krishna Bhagavan
    has no right or any interest in any of the suit properties. In view of the fact
    that P. Seetharatnam has been given some properties under the Will under
    Section 22 of the Hindu Adoption and Maintenance Act, she is not entitled
    to any maintenance.                                                                H
    746                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A         The appeals stand allowed. The judgments and decrees of the High
    Court and the lower Courts are set aside. Even though this is eminently a fit
    case to order costs, we refrain from ordering costs considering the relationship
    of the parties.

    VM                                                           Appeals allowed.
B