Orissa High Court
Smt. Sasupalli Narayanamma vs Smt. Labeti Venkamma (Dead) & on 7 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 41 of 2003
Smt. Sasupalli Narayanamma .... Appellant
Mr. S.S. Rao, Senior Advocate
-Versus-
Smt. Labeti Venkamma (Dead) & .... Respondents
Another
Mr. Rabindranath Prusty, Advocate
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT: 07.08.2023
1. Instant appeal under Section 100 of the Code of Civil
Procedure, 1908 is at the behest of the appellant challenging the
impugned judgment and decree dated 27th August, 2002
promulgated in Title Appeal No. 8 of 1999, whereby, the suit
corresponding to T.S. No. No. 30 of 1998 was dismissed in whole
on the grounds inter alia that the same is contrary to weight of
evidence and hence, liable to be set aside with a direction to
partition the suit schedule properties between her and respondent
No.2.
2. The appellant instituted the suit in T.S. No.30 of 1998 seeking
relief of declaration to the effect that respondent No.2 (defendant
No.2) is not the adopted son of her mother, namely, K.Appamma
and for partition of the schedule properties. It was pleaded by the
appellant that defendant No. 2 was not the adopted son of late
K.Appamma and in so far as the Will executed in favour of the
former is concerned, the same is null and void. The said claim of
the appellant was challenged by respondent No.2 with the
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
pleading that he was adopted into the family and the Will was
executed by late K.Appamma. Considering the pleadings of the
parties, the learned Trial Court framed as many as nine issues
which included the issue of adoption whether to be valid; if the
Will dated 14th October, 1976 to be null and void; and whether,
the suit schedule properties are liable for partition and finally,
reached at a conclusion that though the adoption is not proved
but there are no suspicious circumstances to reject the alleged Will
executed by late K.Appamma in favour of respondent No.2 and
accordingly, decreed the suit in part. Against the judgment and
decree dated 23rd December, 1998, the appellant, being
unsuccessful in having a declaration vis-à-vis the Will, carried the
matter in appeal which was finally disposed of by the learned
Additional District Judge, Gajapati, Parlakhemundi with the
impugned decision confirming the alleged execution and bequest
of the schedule properties and also believing the adoption of
respondent No.2. Against the confirming judgment in Title
Appeal No. 8 of 1999, the appellant approached this Court on
the grounds inter alia that not only the adoption is not
established though the learned Lower Appellate Court was not
justified to conclude so in absence of any appeal or cross-appeal
by respondent No.2 but also both the courts below failed to take
judicial notice of the suspicious circumstances surrounding the
execution of the Will despite evidence on record.
3. Heard Mr. Rao, learned Senior Advocate appearing for the
appellant and Mr. Prusty, learned counsel for the respondents.
4. This Court by order dated 13th July, 2004 formulated the
substantial questions of law which are as follows:
(i) Whether the learned courts below have
committed error of law in not taking note of the
evidence which apparently speaks of the suspicious
circumstances in which the Will i.e. Ext. 2 is alleged
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
to have been executed and whether such execution
under the circumstances can be declared to be valid
and binding to the parties?
(ii) Whether Ext. 2 describing respondent No.2 as
the adopted son, the recitals can be said to be valid
and binding on the parties when there is no material
to prove the adoption itself?
5. The challenge in the appeal is as against the decision of the
learned Lower Appellate Court on adoption in absence of any
appeal or cross-appeal by respondent No.2 to be justified and
also with regard to the acceptability of the Will executed by late
K.Appamma. The suit is at the instance of the appellant was for a
declaration against adoption and Will and for partition of the
schedule properties. As earlier stated, the Will executed by the
late K.Appamma was held to be valid though the adoption of
respondent No.2 failed. Quite interestingly, the learned Lower
Appellate Court reversed the finding on issue No.3 on adoption
and disagreed with the conclusion of the Trial Court which was
again in the absence of any challenge to it by respondent No.2. In
fact, a decision in favour of the appellant without any appeal or
cross-appeal by respondent No.2 was set aside. Whether there
was any occasion for the learned Lower Appellate Court to
interfere with the issue on adoption in absence of appeal or cross-
appeal by respondent No.2? In essence, the Court is to examine
the validity of the Will dated 14th October, 1976 which stands in
favour of respondent No.2.
6. Mr. Rao, learned Senior Advocate appearing for the appellant
advanced argument which primarily confined to the acceptability
of the Will i.e. Ext. 2 and contended that when the adoption
failed, the conveyance deed should have been rejected as the
intention of the testatrix was to gift the schedule properties, since
adoption was the reason and motive behind it. In other words,
Mr. Rao submits that since Ext. 2 was executed in the aforesaid
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
background of having accepted respondent No.2 as the adopted
son by late K.Appamma, which ultimately could not be
established, the conveyance through the Will must, therefore, fail.
With regard to the validity of the Will, Mr. Rao further submits
that there are number of suspicious circumstances surrounding the
execution of Ext.2, the fact which was completely lost sight of by
the courts below and in support, the following decisions, such as,
Raghunath Behera Vrs. Balaram Behera and Another AIR 1996
Orissa 38, Ramchandra Rambux Vrs.Champabai & Others AIR
1965 SC 354, Yumnam Ongbi Tampha Ibema Devi Vrs. Yumnam
Joykumar Singh & Others (2009) 4 SCC 780 besides Karunakar
Mohanty & Another Vrs. Brahmananda Mohanty 75 (1993) CLT
342 have been referred to contending that the Will should have
been discarded due to existence of the circumstances suspicious
surrounding its execution.
7. On the contrary, Mr. Prusty, learned counsel for the
respondents justified the impugned judgment and decree of the
learned Lower Appellate Court and contended that the adoption
was proved so also the execution of Ext.2. It is further contended
that execution of Ext.2 was duly proved by evidence and the Trial
Court duly examined the same and dealt with the circumstances
which are alleged to be suspicious and ultimately held that the
same is valid having been executed by late K.Appamma even
though the plea of adoption was rejected but the said finding of
adoption was thereafter set aside by the learned Lower Appellate
Court considering the evidence in totality and hence, there was
no legal infirmity in so far as the impugned judgment is
concerned.
8. Notwithstanding the decision of the learned Lower Appellate
Court on issue No.3, which is indefensible, on the premise that
the adoption was disbelieved and rejected, the Court has to
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
proceed and examine as to if the courts below in any manner
erred on the facts and law while reaching at a conclusion vis-à-vis
execution of the Will i.e. Ext.2.
9. In Raghunath Behera (supra), the Apex Court held and
observed that when the gift deed in question assuming the fact of
adoption being the reason and motive and such adoption when
pronounced to be not proved, the gift cannot take effect. The
aforesaid decision also deals with the manner of adoption to be
proved. The other decision of the Apex Court in Ramchandra
Rambux (supra) is in relation to dealing with suspicious
circumstances surrounding execution of a Will and discharge of
burden of proof by the propounder. It has been held therein that
in all cases, where a Will is prepared under circumstances which
arouse suspicion of the court that it does not express the mind of
the testator and/or that it was prepared under highly suspicious
circumstances, it is for the propounder to remove that suspicion.
Similarly, in the decision of Yumnam Ongbi Tampha Ibema Devi
(supra), the Supreme Court had the occasion to deal with mode
of proof in respect of a Will and the mandatory requirements in
confirmity with Section 63 of the Indian Succession Act. Likewise,
this Court in Karunakar Mohanty (supra) discussed the special
requirements of attestation and duty of the propounder to allay
the suspicious circumstances before acceptance of a Will. Law is
well settled that if there is any of the circumstances surfaced which
creates a doubt regarding the execution of a Will, it becomes the
obligation on the part of the propounder to dispel it. The above
decision reiterates that a propounder while seeking acceptance of
a Will must prove the manner of its execution to the satisfaction
of a court. The mode of proving a Will does not ordinarily differ
from that of any other document except as to the special
requirement of attestation prescribed in Section 63 of the Indian
Succession Act which is the settled position of law. In the instant
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
case, due execution of Ext. 2 was believed by both the learned
courts below. As to the Trial Court, though it rejected the plea of
adoption but discussed the evidence while adverting to the plea
of the appellant on suspicious circumstances surrounding
execution of Ext.2. It is made to understand that the challenge
against Ext.2 was on the ground that it was scribed in Oriya
language, whereas, the parties are Telugu speaking persons and
the same was executed or arrived at a time when a suit in T.S.
No. 22 of 1975 was pending between the parties. The Trial Court
as well as the learned Lower Appellate Court did not consider the
above circumstance to be suspicious to reject the Will. An
attesting witness, who alleged to have influenced the testatrix
along with respondent No.1, to the partition deed between the
parties was challenged in T.S. No. 22 of 1975 but stood dismissed
and confirmed in F.A. No. 169 of 1977 and considering the same
and such other evidence, it was concluded that its execution was
proved beyond any doubt. It does mean, late K.Appamma and
the appellant were in a litigation on the partition deed and in that
connection, the suit in T.S. No. 22 of 1975 was instituted, during
the pendency of which, the testatrix executed the Will in favour
of respondent No.2, who was by then a minor. One of the
attesting witnesses to the Will examined as P.W.5 although did
not prove the contents but admitted to have signed therein. The
learned Trial Court considering the fact that he was inimically
disposed of towards respondent No.2 since the latter had
deposed against him in a criminal case registered under Section
302 IPC and aware of the hostility held that the Will was duly
executed bequeathing the schedule properties in favour of
respondent No.2. In fact, a decision of this Court in Karunakar
Mohanty (supra) was referred to by the learned Trial Court while
believing the execution of Ext.2, wherein, it has been held that in
certain situation, the executor of a Will may bequeath properties
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
as he or she might have had a feeling that on his or her death, it
would remain in possession of the successors by inheritance. It is
not quite unusual in the Indian society with regard to execution
of Will in order to deprive the real successors of their interest for
various reasons. In the present case, as it appears, respondent
No.2 was all along with late K.Appamma since childhood and
during that time, the Will was executed which was when she had
a dispute with the appellant pending in T.S. No. 22 of 1975. It
was but natural to assume that the testatrix was not in favour of
any share being acquired by the appellant after her death and
hence, in view of the dispute pending by then, declared the
intention to execute the Will. Since the matter was between late
K.Appamma and the appellant besides respondent No.1, it was
also not so unnatural not to refer the fact of adoption and
mention it in the deed of partition. Even though, the parties
belong to Telugu speaking community, the Trial Court as well as
the learned Lower Appellate Court rejected it as a ground to
challenge the Will when its execution was duly and properly
proved. So, therefore, having considered the pleadings on record
and evidence received from both the sides, the Court is of the
humble view that all the circumstances alleged to be suspicious
have been duly taken judicial notice of by the learned courts
below and ultimately, accepted the Will and held it to be valid, a
decision which does not suffer from any legal infirmity.
10. As to the argument with reference to the decision of this Court
in Raghunath Behera (supra), this Court held therein that where
gift or bequest is made to a person as possessing a particular
character, intention may be to benefit a designated individual and
furthermore, word referring to character or relationship being
merely a matter of discretion, in the latter case, if identification is
complete, gift or bequest prevails though description turns out to
be incorrect. It is also observed in the above decision that the
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
distinction between what is description only and reason or
motive of gift or bequest may often be very fine but it must be
drawn from a consideration of the language and the surrounding
circumstances and therefore, where on the assumed fact of
donee's adoption is reason and motive of gift and indeed a
condition of it, gift fails if it turns out that there is no valid
adoption but where a gift is made to a person in the erroneous
belief that he is adopted son but intention is to benefit him in any
event, it is a gift to a person. In fact, the above law has been
borrowed from the judgments of the Apex Court in AL PR
Ranganathan Chettiar Vrs. AL PR Al. Periakaruppan Chettiar AIR
1957 SC 815 besides Yelamanchaili Siva Panchaksharamma Vrs.
Yelamanchaili Chinnabhavi AIR 1967 SC 207 wherein the
aforesaid point has been well discussed. It has been held by the
Apex Court in the decisions (supra) that if the intention is to
benefit the donee as persona designata, the addition of his
supposed relationship is merely a matter of description and the
gift prevails though description is incorrect. In other words, the
law is that where a gift or bequest is made to a person who is
described as an adopted son but such person is not adopted at all
or if he was adopted, but the same is held to be invalid, validity
of the gift or bequest, in such a situation, depends on the
intention of the donor which is to be gathered from the language
of the gift or Will and from the surrounding circumstances. It is
also held in the above decisions of the Apex Court that if the
assumed fact of adoption is the reason and motive of gift and a
condition of it, then the gift cannot take effect if the adoption is
pronounced invalid. Being alive to the above legal position and
the principles enunciated, the Court is to ascertain considering its
recitals as to whether the testatrix executed the Will with
adoption being the real reason and motive or to benefit
respondent No.2, who admittedly by then was a minor. It was
Smt. Sasupalli Narayanamma Vrs. Smt. Labeti Venkamma (Dead) & Another
merely a description of respondent No.2 to be an adopted son,
which in the considered view of the Court, should not be held as
the only motivation to execute the Will which is what made to
suggest on a reading of Ext.2 as the testatrix had other reasons to
bequeath the properties which stand narrated therein. As no
circumstances proved to be suspicious to discard the Will and
when such execution was not a motivation related to adoption
only, rather, to benefit respondent No.2, considering the reasons
for which the schedule properties stood bequeathed and the same
having been duly established with the evidence of its execution in
accordance with Section 63 of the Indian Succession Act, the
Court does not find any justifiable ground not to accept it. In such
view of the matter, the Court finds no legal infirmity committed
by the learned courts below while accepting the validity of Ext. 2
and accordingly, the substantial questions of law for the reasons
discussed herein above are answered.
11. Hence, it is ordered.
12. In the result, the appeal stands dismissed.
(R.K. Pattanaik)
Judge
kabita
Signature Not Verified
Digitally Signed
Signed by: KABITARANI MAJHI
Reason: Authentication
Location: OHC, CTC
Date: 14-Aug-2023 10:50:07
