IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTEENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1854 OF 2001 BETWEEN: Kuppala Srilakshmi …APPELLANT AND Chittala Surya Kumari and others …RESPONDENTS CROSS OBJECTIONS (SR) No. 70128 OF 2001 BETWEEN: Miriyala Gandhi …CROSS OBJECTOR AND Kuppala Srilakshmi and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1854 OF 2001 AND CROSS OBJECTIONS (SR) No. 70128 OF 2001 JUDGMENT: The plaintiff in O.S.No. 3 of 1995 on the file of Senior Civil Judge, Narsapur, is the appellant herein. 2. The suit was tried along with O.S.No.10 of 2000. The suit was one filed for declaration of title of the plaintiff over the schedule property after evicting the defendants and for future profits. 3. According to the case of the plaintiff, the properties originally belonged to Miriyala Ganga Rathnam and the plaintiff was adopted by her and her husband Miriyala Rama Murthy. At the time of adoption, the age of the plaintiff was about three months. In 1979 the adoptive father Rama Murthy died and the plaintiff was educated by the natural parents. In the school records the plaintiff was shown as the daughter of Miriyala Rama Murthy and her marriage was also performed by the adoptive mother Ganga Rathnam. The adoptive mother was living with the plaintiff and her husband at Jettipalem village. While Ganga Rathnam was alive, in the sound and dispossessing state of mind, executed a Will on 11.05.1992 conveying the immovable properties to the plaintiff alone to be enjoyed by her with absolute rights and she died on 18.06.1992. The plaintiff therefore became entitled to the schedule properties. Even if the adoption is not there, by virtue of the Will dated 11.05.1992 the plaintiff became entitled to the property. Defendants 1 to 3 have no right or interest in the schedule properties and they brought into existence of a Will dated 14.06.1992 alleged to have been executed by Ganga Rathnam and filed the suit O.S.No.108 of 1992, which was later numbed as O.S.No.10 of 2000, for injunction. The said Will is not true. Ganga Rathnam was admitted in Vijaya Hospital at Narsapur on 14.06.1992 and discharged on 17.06.1992 and died on 18.06.1992. So, she had no mental capacity to execute the said Will on 14.06.1992. Defendants 4 to 6 are the brothers of late Miriyala Rama Murthy. The 7th defendant is the son of his deceased brother. All of them have trespassed into the schedule properties, except items 1, 2, 7 and 12 of the plaint schedule, prior to the filing of the suit O.S.No.108 of 1992 and after the suit they have also encroached into the other properties. Therefore, the suit was filed for declaration of title and recovery of possession with future profits. 4. The 1st defendant filed a written statement disputing the adoption of the plaintiff and that she lived with the adoptive mother. The performance of the marriage by the adoptive mother is also disputed. The further allegation that on 11.05.1992 Ganga Rathnam executed the Will is also disputed and it was pleaded that it is a fabricated one. The plaintiff does not get any rights under the Will. According to the case of the defendant, the plaintiff is not at all related to late Miriyala Ganga Rathnam and Miriyala Ganga Rathnam executed a Will on 14.06.1992 in a sound and dispossessing state of mind bequeathing all the plaint schedule properties in favour of defendants 1 to 3 and therefore, they came into possession of the property and entitled to enjoy the same. The alleged Will is true and binding on all. The alleged trespass of the schedule property into the properties prior to O.S.No.108 of 1992 and subsequently are disputed. The plaintiff is not entitled for any of the relief claimed. 5. The 4th defendant filed a written statement contending that Miriyala Rama Murthy was the brother of defendants 4 to 6 and late Miriyala Sathyam, the father of defendant No.7. The schedule properties belonged to late Miriyala Ganga Rathnam. The allegation that the plaintiff was adopted and that Ganga Rathnam executed a Will in favour of the plaintiff is also false. The 4th defendant alone looked after Rama Murthy and his wife and he was treated as their son and he performed the obsequies of Ganga Rathnam. At request of defendant No.4, the plaintiff and her husband stayed with Ganga Rathnam to help her when she was at Jettipalem. On 26.05.1992 Miriyala Ganga Rathnam in a sound and dispossessing state of mind executed a Will bequeathing the properties to the plaintiff and to the 4th defendant. The said Will was came into force after the death of Ganga Rathnam and therefore, the Will is binding on the plaintiff and defendants. The defendants 5 to 7 have no right or interest over the property. The other allegations touching on the rights of the plaintiff with regard to adoption and the Will are disputed. The alleged trespass into the schedule property is also disputed. A counter claim was also made with regard to the B-Schedule properties shown in the written statement alleging that the 4th defendant is the owner of the properties and for possession of the B-Schedule properties and for profits. 6. Defendants 5 to 7 filed a written statement stating that they have no interest in the property and they came to know that Ganga Rathnam executed a Will in favour of the 4th defendant and conveying 40 cents to the plaintiff. 7. Defendants 2 and 3 filed a Memo adopting the written statement of 1st defendant. 8. The plaintiff also filed a rejoinder to the claim of the 4th defendant denying the Will set up by the 4th defendant and also the reliefs claimed thereunder. 9. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the Will dated 11.05.1992 is not a forged document? 2) Whether the defendants 5 to 7 are not necessary parties to the suit? 3) Whether the plaintiff is entitled to the reliefs of declaration and consequentially for possession prayed for? 4) Whether the plaintiff has no cause of action to file this suit? 5) Whether the Court fee paid is not correct? 6) Whether the 1st defendant is entitled to compensatory costs under Section 35-A of C.P.C.? 7) To what relief? Subsequently, on 20.08.1997 the following additional issues have been framed. 8) Whether the Will dated 14.06.1992 propounded by the defendants 1, 2, 3 is true and valid? 9) Whether the Will dated 26.05.1992 propounded by defendants 4 to 7 is true, valid and binding on the plaintiff? 10) Whether the defendants 4 to 7 are entitled to the counter claim made by them? 10. O.S.108 of 1992, which was re-numbered as O.S.No.10 of 2000 was filed by defendants 1 to 3 against the plaintiff in O.S.No.3 of 1995 and others for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the property on the basis of the Will dated 14.06.1992 said to have been executed by Ganga Rathnam. The parties have repeated the pleadings in the earlier suit. The lower Court has clubbed both the suits together and evidence was recorded in O.S.No.10 of 2000. 11. On behalf of the plaintiff, PWs.1 to 4 were examined and marked Ex.A.1. On behalf of the defendants, DWs.1 to 10 were examined and marked Exs.B-1 to B-47. 12. After considering the evidence on record, the learned Senior Civil Judge, Narsapur, dismissed the suit O.S.No.3 of 1995 and the counter claim and also dismissed the suit O.S.No.10 of 2000 (Original O.S.No.108 of 1992). Aggrieved by the said judgment and decree, the plaintiff in O.S.No.3 of 1995 has filed the appeal and the 4th defendant has filed the cross objections as counter claim based on the Will set up by him was not accepted. 13. The points that arise for consideration are: 1) Whether the appellant is the adopted daughter of Miriyala Ganga Rathnam? 2) Whether the Will dated 11.05.1992 Ex.B.14 is true? 3) Whether the Will Ex.B.46 set up by the 4th defendant is true? 4) Whether the judgment and decree passed by the learned Senior Civil Judge, Narsapur, is legal and sustainable? 14. POINTS: In this case, three Wills have been set up by the parties and all the Wills were disbelieved by the lower Court and Ex.A.1 Will, which was set up by the plaintiff in O.S.No.10 of 2000 was not believed and they did not prefer any appeal. The appellant herein is the plaintiff in O.S.No.3 of 1995 and also the 5th defendant in the suit O.S.No.10 of 2000. According to her case, she was adopted by Miriyala Rama Murthy and her wife when she was very young and they looked after her. So far as this aspect is concerned, the lower Court found that though there are some documents to show that the appellant was treated as a daughter of the deceased Miriyala Ganga Rathnam, there is no proof of factum of adoption and consequently disbelieved the said evidence. 14. According to the case of the appellant, who was examined as DW.1, she was adopted by Rama Murthy and in school records her name was shown as the daughter of Rama Murthy. According to her, the adoption was in 1964 when she was a baby of three months. She relied upon Exs.B.1 and B.2 photographs, Ex.B.3 the Study certificate, Ex.B.5 S.S.C. Certificate and Ex.B.7 her Intermediate Hall Ticket. She also relied upon the Wedding card of the year, 1982 when her adoptive mother performed the marriage with 4th defendant. She also claims that the original title deeds were given to her after the execution of the Will. In cross-examination, she stated that her natural parents have three male children and she is the only female child. She stated that no adoption deed was executed by Ganga Rathnam or Rama Murthy and there is no invitation. DW.2 is said to be a relative of Ganga Rathnam and he was only aged about 24 years by the date of giving evidence and he spoke that DW.1 was adopted by Ganga Rathnam, his evidence can have no value. So also, DW.3, who is said to be aged 39 years, spoke that Miriyala Ganga Rathnam was his maternal aunt. He claims that DW.1 is the adopted daughter of Ganga Rathnam. He did not say the particulars of the adoption or when she was adopted. He does not even say that she got adopted by Miriyala Rama Murthy during his life time. DW.4 is also another relative of Ganga Rathnam, who is said to be aged 60 years and he does not say the particulars of the adoption, but he says that DW.1 was adopted by Ganga Rathnam. The evidence of this witness is also of no use because it is not the case of the 1st defendant that Ganga Rathnam adopted the DW.1. In fact, it was the case that DW.1 was adopted by Rama Murthy and Ganga Rathnam during their life time. In fact, the evidence of DW.6, the mother of the appellant, shows that Rama Murthy and Ganga Rathnam had no children and they adopted her daughter Srilaxmi when she was only three months old, that was in August, 1964. Her evidence does not show the particulars of the rites performed for a valid adoption and the persons, who were present at the time of the adoption and the reason for her to give the three months old baby in adoption to Ganga Rathnam. Therefore, the evidence on record does not disclose about the alleged adoption set up by the appellant. 15. As can be seen from the evidence of the witnesses available on record, it appears that DW.6 and others lived at same places where Miriyala Rama Murthy and Ganga Rathnam lived. Taking a child and having photograph with that child cannot be taken into consideration as a proof of adoption. It is true that some of the documents and school records filed by the appellant discloses her name as the daughter of Rama Murthy. The marriage is also said to have been performed by Ganga Rathnam. But, these circumstances by themselves will not establish a valid adoption. If really the appellant is the adopted daughter of Ganga Rathnam or Miriyala Rama Murthy, dispossession of their properties would have been done during the lifetime of Rama Murthy by executing registered documents. It is not uncommon that when a child was taken in adoption there will be a promise to give property and a hope by the natural parents that the child will get some thing. Therefore, when Rama Murthy lived for a longer time and even when Ganga Rathnam has performed the marriage of the appellant, naturally if they wanted to treat her as an adopted daughter, the property would have been conveyed under a registered deed. It is to be noted that except the documents filed by the appellant, there is no declaration of any nature by Ganga Rathnam or Rama Murthy produced before the Court that the appellant is their adopted daughter. Merely because for some time the appellant has stayed with the couple will not by itself create the status of adoption to succeed to the properties. 16. Further-more, the evidence of DWs. 1 to 6 is conflicting as to whether the appellant was adopted by Rama Murthy or Ganga Rathnam. Evidently, the deceased Rama Murthy was a Government employee and if really the plaintiff was adopted by him and treated as his daughter, he would have disclosed the name of the appellant in the Government records or any statement before the concerned authorities. Particularly so of the facts that the plaintiff is said to have been taken in adoption at the age of three months. In fact, in the Will Ex.B.14 relied on by the appellant, the recitals clearly go to show that the appellant was only fostered and she was never described as an adopted daughter of herself -Ganga Rathnam or her husband. Therefore, for all the above reasons, there is any amount of doubt about the factum of adoption set up by the appellant and the lower Court has rightly disbelieved the same. 17. Apart from the theory of adoption, the appellant herein relied upon a Will dated 11.05.1992 said to have been executed by Ganga Rathnam. It is to be mentioned that all the contesting parties are setting up the Will said to have been executed by Ganga Rathnam. The plaintiffs in O.S.No.10 of 2000 have not challenged the validity of the finding and therefore, what remains to be considered is whether the Will in favour of the appellant, which is Ex.B.14 and the Will Ex.B.46 in favour of DW.7, who has filed the cross appeal, is true or not. 18. Before considering this aspect, it is useful to refer to the fact that Ex.B.14 is dated 11.05.1992 and Ex.B.46 is dated 26.05.1992. It is to be mentioned that even from the recitals in the alleged Wills, the deceased Ganga Rathnam was said to be attacked with paralysis and was suffering and mostly taking treatment from the doctors. In such circumstances, if any dispossession was sought to be made by her, she would not have failed to register the Wills. It is not in dispute that shortly prior to the death, the deceased went in Coma and prior to the death i.e., day prior to the death, she was brought to the house from the hospital. So far as the Will set up by the appellant is concerned, it is quite clear that she does not speak that the Will was dictated by Ganga Rathnam to the scribe and that on her dictation, the Will was drafted. Though some documents are said to have been given to her, that cannot be as consideration to take the Will as true. Her evidence is only to the effect that the deceased was in hale, healthy, sound and dispossessing state of mind and she gave the names of attesters and scribe. The deceased Ganga Rathnam died on 18.06.1992 and went in Coma on 14.06.1992. The evidence of DW.1, the appellant herein, does not show as to where exactly the Will was executed. In fact, the mother of the appellant, who is examined as DW.6 also does not speak about her presence at the time of execution of the Will or the contents of the Will. DW.2, who is said to be an attester on the Will stated that the deceased bequeathed all her properties to the appellant and identified his signature and the signature of others. His evidence does not show that the Will was drafted on the dictation of the deceased Ganga Rathnam. By the date of giving his evidence in Court on 20.07.2000 he was hardly aged 24 years. His evidence does not show that the contents of the Will were read over after it was scribed. He does not even know the contents of the Will. There was also discrepancy as to whether the Will was scribed on stamp papers or white papers. DW.3 claims to be one of the attesters is aged about 39 years. His evidence goes to show that he attested the Will and it was scribed by one person, who is a resident of Lakshamaneshwaram and he does not remember his name. According to him, Ganga Rathnam gave the instructions for scribing the Will, he does not say that after the Will was executed, it was read over and the executant has accepted the contents. According to him, it was scribed on a white paper. 19. DW.4 is not associated with Ex.B.14 Will and therefore, his evidence is of no use. DW.5 is also the attester on Ex.B.14 Will. His evidence does not show that Ganga Rathnam gave the instructions for drafting of the Will and that after the Will was drafted, the scribe read over the same and that the contents were admitted by Ganga Rathnam. He also states that the Will was scribed on a white paper. As already stated, DW.6 the mother of the appellant does not say anything about the date of the Will or her presence at that time. 20. Therefore, from the above circumstances and from the evidence of the witnesses, it is quite clear that the attesters associated with the documents cannot be believed and there is no evidence of the scribe and as such, the execution of the Will was rightly rejected by the lower Court. 21. So far as the Will set up by the cross-objector is concerned, a colour of reality is sought to be given in the Will by giving some property to the appellant. From his own showing, he has not taken care of Rama Murthy or Ganga Rathnam. Merely because some of the brothers have performed the obsequies, it does not mean that the Will set up under Ex.B.46 dated 26.05.1992 is true. The documents, which were sought to be relied upon are only subsequent to the filing of the suit and the death of the deceased and they cannot validate the disputed Will. One Surya Prakash Rao is said to be the scribe of the Will and he is examined as DW.8. Evidently, he is not a seasoned document writer, his evidence also does not disclose that the contents of the Will were dictated and after the drafting the Will was read over to the executant. There is nothing on record to show that any of the propounder of Wills has met the medical expenses of the deceased. The lower Court found that the attester DW.9 and another attester Subba Rao are not the residents of Jettipalem. The scribe is a resident of different place. The Will does not show the reason as to why the other brothers of Rama Murthy are excluded from succession of the property. There is no reason as to why the Will was not registered. It is to be noted that the death of the deceased was on 18.06.1992 and both the Wills are within a period of one month prior to her death. In such circumstances, the burden is very much on the propounders to show that the deceased was mentally healthy and was in a sound and dispossessing state of mind. In fact, there is absolutely no evidence that by the date of alleged execution of the Wills, the deceased was hale and healthy. On the other hand, from the own reading of the Wills, the deceased was said to be suffering with serious illness. The persons associated with the documents appears to be interested in either of the parties, who has set up the Will. 22. Therefore, for all the above reasons, I found that the lower Court has rightly rejected both the Wills and I do not find any reason to come to a different conclusion. Accordingly, points are answered. 23. In the result, the appeal and cross objections are dismissed. There shall be no order as to costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 15-04-2011. INL