MOTURU NALINI KANTH versus GAINEDI KALIPRASAD (DEAD, THROUGH LRS.)
[2023] 16 S.C.R. 644, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Issues
[2023] 16 S.C.R. 644 : 2023 INSC 1004
644
CASE DETAILS
MOTURU NALINI KANTH
v.
GAINEDI KALIPRASAD (DEAD, THROUGH LRS.)
(Civil Appeal No. 2435 of 2010)
NOVEMBER 20, 2023
[C.T. RAVIKUMAR AND SANJAY KUMAR, JJ.]
HEADNOTES
Issue for consideration: Suit ﬁ led by the appellant (then a minor) 
through his guardian claiming right and title over the properties of late 
‘V’, who as per his claim had adopted him, under a registered Will. 
Trial Court decreed the suit. High Court whether justiﬁ ed in allowing 
the appeal ﬁ led by V’s grandson, ‘GK’.
Evidence Act, 1872 – ss.68, 69 – Legal requirements to prove 
a Will – Suit was ﬁ led by the appellant, through his guardian, for 
declaration of his title to the suit properties belonging to late ‘V’ and 
for recovery of their possession from V’s grandson-‘GK’ (who was 
her grandson through her deceased daughter) – It was his case that 
he was adopted by ‘V’ by a registered Adoption Deed – Appellant was 
the son of V’s brother’s son – As per him ‘V’ had executed registered 
Will bequeathing all her properties to him and canceled her earlier 
Will, executed in favour of ‘GK’ – Trial Court held in favour of the 
appellant – Decision reversed by High Court:
Held: For the purposes of s.69, it is not enough to merely examine 
a random witness who asserts that he saw the attesting witness affix 
his signature in the Will – The very purpose and objective of insisting 
upon examination of at least one attesting witness to the Will would 
be entirely
lost if such requirement is whittled down to just having a 
stray witness depose that he saw the attesting witness sign the Will – 
Neither of the attesting witnesses to the Will were examined before 
the Trial Court, in compliance with s.68 – Therefore, s.69 could have 
been made use of to prove the Will but no witness was examined who
645
was familiar with the signature of either of the attesting witnesses 
and who could vouch for the same or produce an admitted signature 
before the Trial Court – Will not proved in accordance with law and 
has no legal consequence – Disowning of her own grandson by ‘V’ 
under Will is a suspicious circumstance that remained unexplained 
– Too many suspicious circumstances surrounding the Will make it 
very difficult to accept and act upon the same, even if it had been 
proved as per law – Further, adoption of the appellant is not proved 
in accordance with law despite the registration of Adoption Deed 
– On facts, the very adoption, itself, is not believable, given the 
multitude of suspicious circumstances surrounding it – Therefore, 
appellant cannot be treated as V’s heir by adoption thus, not entitled 
to claim any right or share in her properties – Findings of the High 
Court to that effect, albeit for reasons altogether different, do not 
warrant interference – Judgment of the High Court confirmed – Indian 
Succession Act, 1925 – s.63 – Hindu Adoptions and Maintenance Act, 
1956 – s.16. [Paras 30, 32, 55]
Hindu Adoptions and Maintenance Act, 1956 – ss.16, 11 – 
Presumption u/s.16 in favour of a registered document relating 
to adoption, rebuttable – Appellant claimed a half-share in V’s 
properties relying on the adoption ceremony and the registered 
Adoption Deed:
Held: The presumption is rebuttable – On facts, the adoption 
ceremony and the Adoption Deed are
shrouded with equally suspicious 
circumstances – As the Adoption Deed was registered, the presumption 
u/s.16 attached to it and it was for ‘GK’ (V’s grandson) to rebut that 
presumption, who did so more than suﬃ  ciently – Mere registration of 
the Adoption Deed did not absolve the person asserting such adoption 
from proving that fact by cogent evidence and the person contesting it 
from adducing evidence to the contrary – It is in this respect that various 
suspicious circumstances attached to the adoption ceremony of assume 
signiﬁ cance – The actual ‘giving and taking’ of the child in adoption, is 
an essential requisite u/s.11(vi) however, there is no convincing evidence 
of that ‘act’ also in the case on hand – There are no pictures of the actual 
‘giving and taking’ of the child in adoption. [Paras 35, 46 and 50]
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.)
646 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
LIST OF CITATIONS AND OTHER REFERENCES
Ashutosh Samanta (Dead) by LRs. And others vs. SM. Ranjan 
Bala Dasi and others (2023) SCC OnLine SC 255; Ved Mitra Verma vs. 
Dharam Deo Verma (2014) 15 SCC 578 – distinguished.
Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 SCC 
91: [2002] 5 Suppl. SCR 175; Ramesh Verma (Dead) through LRs . 
vs. Lajesh Saxena (Dead) by LRs . and another (2017) 1 SCC 257; H. 
Venkatachala Iyengar vs. B.N. Thimmajamma and others AIR 1959 SC 
443: [1959] Suppl. SCR 426; Jagdish Chand Sharma vs. Narain Singh 
Saini through LRs. and others (2015) 8 SCC 615: [2015] 6 SCR 397; 
Bhagat Ram and another vs. Suresh and others (2003) 12 SCC 35: [2003] 
6 Suppl. SCR 216; Benga Behera and another vs. Braja Kishore Nanda 
and others (2007) 9 SCC 728: [2007] 6 SCR 853 – relied on.
Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and 
others (2008) 15 SCC 365: [2008] 17 SCR 1500; Apoline D’ Souza 
vs. John D’ Souza (2007) 7 SCC 225: [2007] 6 SCR 1103; Naresh 
Charan Das Gupta vs. Paresh Charan Das Gupta AIR 1955 SC 363: 
[1955] SCR 1035; Bhagavathiammal vs. Marimuthu Ammal and others 
2010 (2) Madras Weekly Notes (Civil) 704; G. Vasu vs. Syed Yaseen 
Sifuddin Quadri AIR 1987 Andhra Pradesh 139; Bharat Barrel & Drum 
Manufacturing Company vs. Amin Chand Payrelal (1999) 3 SCC 35: 
[1999] 1 SCR 704; Laxmibai (Dead) through LRs. and another vs. 
Bhagwantbuva (Dead) through LRs . And others (2013) 4 SCC 97:
[2013] 
1 SCR 632; Kishori Lal vs. Mst. Chaltibai AIR 1959 SC 504: [1959] 
Suppl. SCR 698; Jai Singh vs. Shakuntala (2002) 3 SCC 634; Mst. Deu 
and others vs. Laxmi Narayan and others (1998) 8 SCC 701; Lakshman 
Singh Kothari vs. Rup Kanwar (Smt) alias Rup Kanwar Bai AIR 1961 
SC 1378: [1962] SCR 477; M. Vanaja vs. M. Sarla Devi (Dead) (2020) 
5 SCC 307 – referred to.
Govinda vs. Chimabai and others AIR 1968 Mysore 309; Padmalav 
Achariya and another vs. Srimatyia Fakira Debya and others AIR 
1931 Privy Council 81; Dhanno wd/o Balbir Singh vs. Tuhi Ram (Died) 
represented by his LRs.AIR 1996 P & H – referred to..
647
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2435 of 2010.
From the Judgment and Order dated 11.12.2006 of the High Court of 
A. P. at Hyderabad in AS No.2695 of 1989.
Appearances:
Basant R., Sr. Adv., Y. Raja Gopala Rao, Akshay Sahay, Ms. Y. Vismai 
Rao, Y. Ramesh, Dhuli Gopi Krishna, Aarsh Thakkar, Sharat Gopal, Advs. 
for the Appellant.
Thomas P. Joseph, Sr. Adv., M/s Devasa & Co., Shekhar G. Devasa, 
Manish Tiwari, Thasmitha Muthanna, Tinny Thomas, Advs. for the 
Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KUMAR, J.
1. Moturu Nalini Kanth, then a minor, claimed absolute right and title 
over the properties of late Venkubayamma under registered Will Deed dated 
03.05.1982. It was also claimed that he was adopted by her, as evidenced 
by registered Adoption Deed dated 20.04.1982. Nalini Kanth was not even 
a year old at that time, as he was born on 10.07.1981. O.S. No. 113 of 
1983 was ﬁ led by Nalini Kanth, through his guardian, for declaratory and 
consequential reliefs in respect of Venkubayamma’s properties. The learned 
Principal Subordinate Judge, Srikakulam, held in his favour, vide judgment 
dated 30.09.1989, and decreed the suit. However, in appeal, the High Court of 
Andhra Pradesh held against Nalini Kanth, vide judgment dated 11.12.2006, 
and allowed Appeal Suit No. 2695 of 1989 ﬁ led by Gainedi Kaliprasad, 
Venkubayamma’s grandson through her deceased daughter, Varalaxmi.
Hence, this appeal by Nalini Kanth. 
2. Nalini Kanth’s prayer in O.S. No. 113 of 1983 before the learned 
Principal Subordinate Judge, Srikakulam, ﬁ led through his guardian, 
was for declaration of his title to the suit properties that had belonged to 
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.)
648 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
Venkubayamma and for recovery of their possession from Kaliprasad, 
defendant No.1. His case was that he was adopted by Venkubayamma on 
18.04.1982 at Sri Sri Raghunadha Swamy Temple at Bhapur in Berhampur 
City, Ganjam District, Orissa (presently, Odisha). It was claimed that the 
Adoption Deed (Ex. A9) was executed on 20.04.1982 and it was registered 
on the same day. It was signed by his natural parents who gave him in 
adoption and also by his adoptive mother. Thereafter, Venkubayamma 
executed registered Will Deed dated 03.05.1982 (Ex. A10) in a sound state 
of mind bequeathing all her properties to him. Thereby, Venkubayamma 
also canceled her earlier Will Deed dated 26.05.1981 (Ex. A19), executed 
in favour of Kaliprasad, her grandson. Under Ex. A10 Will, Venkubayamma 
appointed Pasupuleti Anasuya (PW 1) as the executor of the Will and also 
as the guardian of Nalini Kanth, in the event she died during his minority. In 
fact, Venkubayamma died just two months later, on 26.07.1982. Defendants 
No. 2 to 12 in the suit were Venkubayamma’s tenants. As disputes arose 
between Pasupuleti Anasuya, Nalini Kanth’s guardian, and Kaliprasad as 
to who was entitled to receive the rents, the suit in O.S. No. 113 of 1983 
came to be ﬁ led by her on his behalf.
3. The suit was contested by Kaliprasad. He challenged the Adoption 
Deed as well as the Will Deed, under which Nalini Kanth claimed rights. 
He alleged that Venkubayamma was a
resident of Srikakulam and was very 
old in 1982. According to him, she was senile and was not in a position to 
exercise free will and consciousness. He asserted that the adoption was not 
true, valid or binding on him. He contended that Ex. A10 Will was invalid 
as it was not properly attested. He claimed that Venkubayamma had brought 
him up and got his marriage performed and that she had always treated him 
as her sole heir and successor. 
4. The Trial Court settled the following issues for consideration:
‘1.Whether the plaintiﬀ  is the adopted son of Venkubayamma 
and the Adoption Deed dated 19.04.1982 (sic) is true?
2. Whether the registered Will dated 03.05.1982 executed by late 
Venkubayamma is true and valid?
3. Whether the plaintiﬀ  is entitled to the possession of the suit 
properties?
4. 
To what relief?’
649
5. PWs 1 to 15 were examined for the plaintiﬀ , Nalini Kanth, by 
his guardian. Ex. A1 to A25 were marked on his behalf. Kaliprasad 
examined himself as DW 1. He also examined DWs 2 and 3 but did not 
adduce any documentary evidence. Exs. C1 & C2 and Exs. X1 & X2 were 
also made part of the record. Ex C1 is the aﬃ  davit dated 16.09.1982 of 
Balaga Sivanarayana Rao, stating that he had scribed Ex. A10 Will Deed. 
It was attested by B. Prasada Rao, Advocate. Ex. C2 is stated to be the 
aﬃ  davit dated 16.09.1982 of Pydi Appala Suranna, an attesting witness 
to Ex. A10 Will Deed. It was attested by K. V. Ramanayya, Advocate. 
Exs. X1 and X2, as per the version of Nalini Kanth’s guardian, are the 
thumb marks of Venkubayamma but this is disputed by Kaliprasad.
6. At this stage, we may note that the contesting parties are all 
related to Venkubayamma. Kaliprasad, as stated earlier, is the son of her 
predeceased daughter, Varalaxmi. Nalini Kanth is the son of her brother’s 
son, viz., P. Panduranga Rao. Pasupuleti Anasuya, the guardian, is P. 
Panduranga Rao’s elder sister and the paternal aunt of Nalini Kanth. 
7. Deposing as PW 1, Pasupuleti Anasuya stated as follows: 
Venkubayamma had extended an invitation to attend the adoption 
of Nalini Kanth. Ex. A1 is the invitation. The adoption took place 
at Raghunadha Swamy Temple, Berhampur, at 10 am on 18.04.1982 
and all their relations and friends attended the ceremony. All the 
customary rituals for adoption took place and
the natural parents 
physically handed over the child to Venkubayamma but she, herself, 
was not present when the child was physically handed over. Exs. A2 
to A4 photographs were taken at that time. Exs. A5 to A7 are the 
negatives thereof. Ex. A8 cash receipt was issued by the photographer, 
Sunkara Papa Rao. The Adoption Deed dated 20.04.1982 is Ex. A9. 
Venkubayamma executed a registered Will on 03.05.1982 and it is Ex. 
A10. She was in a sound and disposing state of mind till her death. 
Venkubayamma gave necessary instructions to the scribe for writing 
Ex. A10 Will and she went with her to the Sub-Registrar’s office. 
In her cross-examination, PW1 admitted that she was not there in 
any of the photos (Exs. A2 to A4). She denied the suggestion that 
Venkubayamma was not at all present in those photographs and that 
she never adopted Nalini Kanth by executing Ex. A9 Adoption Deed. 
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
650 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
8. P. Panduranga Rao, the natural father of Nalini Kanth, deposed 
as PW 2. He stated that Venkubayamma was his father’s sister and that 
he, along with his wife, gave their second son, Nalini Kanth, in adoption 
to her. He said that the adoption ceremony took place on 18.04.1982 and 
Ex. A1 was the invitation printed on that occasion. He also spoke of Exs. 
A2 to A4 photographs and asserted that the child was handed over by him 
and his wife to Venkubayamma in adoption. He admitted his signature in 
the Adoption Deed (Ex. A9). In his cross-examination, PW 2 admitted that 
Venkubayamma brought up Kaliprasad from childhood, got him educated 
and performed his marriage. He also admitted that none of the relatives of 
Venkubayamma residing at Srikakulam attended the adoption ceremony. He 
also stated that Kaliprasad was residing in the house of Venkubayamma at 
the time of Nalini Kanth’s adoption in 1982.
9. PW 3 is one of the attestors of Ex. A9 Adoption Deed and he 
is the brother of PWs 1 and 2. According to him, the other attesting 
witness to the document as well as the scribe thereof had expired. He 
stated that all the rituals had taken place at the time of adoption and the 
ceremonies were conducted at Raghunadha Swamy Temple at Berhampur 
at 10 am. He also spoke of Exs. A2 to A4 photographs being taken at that 
time. He further stated that the adoption was registered at Berhampur 
on 20.04.1982. PW 4 is the photographer who
took Exs. A2 to A4 
photographs, which were marked along with Exs. A5 to A7 negatives 
and Ex. A8 receipt by PW 1. 
10. PW 5, an Advocate, was examined to identify Venkubayamma in 
the photographs, as he claimed to be a distant relative. He stated that the 
woman in Ex. A3 photograph, wearing spectacles, was Venkubayamma 
and that she was also seen in Ex. A2 photograph. He stated that in Ex. A4 
photograph, she was seen holding a child in her lap. He stated in his cross-
examination that Kaliprasad was with Venkubayamma since ten years.
11. PW 6 is the document-writer who scribed Ex. A10 Will Deed. 
He said that he knew Pydi Appala Suranna, one of the attestors thereto, 
but he was no more. He stated that he did not know the other attestor. He 
claimed that he had known Venkubayamma for about 5 or 6 years. He 
admitted that Ex. C1 was in his handwriting and bore his signature. He 
also admitted that Ex. C2 was in his handwriting and claimed that Pydi
651
Appala Suranna had signed therein. He said that he was not present when 
Venkubayamma signed Ex. A10 Will. Thereupon, he was cross-examined 
by the plaintiﬀ ’s counsel. In the course of such cross-examination, he 
stated that he wrote Ex. C1 aﬃ  davit at the dictation of the plaintiﬀ ’s 
counsel at his house. He further stated that he did not see who exactly 
signed in Ex. A10 Will Deed. A woman was stated to be sitting at a 
distance but he did not know if she was Venkubayamma and whether 
she signed the document. He stated that the prior Will of Venkubayamma 
dated 26.05.1981 (Ex. A19) was also written by him and Venkubayamma 
had signed the same in his presence. He further stated that he told the 
plaintiﬀ ’s counsel that, as he did not see Venkubayamma signing the 
Will, he would not sign the aﬃ  davit. However, the plaintiﬀ ’s counsel 
persuaded him to sign it, saying that he need not worry about it and 
that there would be no consequences. He claimed that some lady from 
Berhampur who was a relation of Venkubayamma brought the earlier Will 
to him and he mentioned the date of the said Will in Ex. A10 Will. In his 
cross-examination by the defence, PW 6 stated that while he was in the 
Registrar’s oﬃ  ce attending to some work, a lady from Berhampur came 
to him and on that day, the document was written. He further stated that 
he knew Venkubayamma but she did not come to him on that day. The 
woman who came from Berhampur gave all the information to write the
document and the recital in the Will that the plaintiﬀ ’s adoption took place 
in the house of his natural parents in Chandramanipeta of Berhampur 
town was made only on the instructions given by the woman. The other 
particulars mentioned in the Will were also stated to have been given 
by the same woman. After the writing of the document, according to 
PW 6, Venkubayamma and the witnesses did not come to him and he 
did not go to them. He stated that they took the written Will saying that 
Venkubayamma could herself read the document. He further stated that 
Pydi Appala Suranna, one of the attestors, also did not sign before him. 
He also said that he could not say whether the signature in Ex. A10 was 
that of Pydi Appala Suranna. In his further cross-examination by the 
plaintiﬀ ’s counsel, PW 6 denied the suggestion that he was told that the 
adoption took place at Raghunadha Swamy Temple and the other formal 
ceremonies were performed at the natural parents’ house but he omitted 
to write that the adoption took place at the temple. 
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
652 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
12. PW 7 is the purohit who is stated to have performed the adoption 
ceremonies. He stated that his native place was Berhampur and he was 
doing pourohityam since about 12 years. He stated that he was the purohit 
for the family of P. Panduranga Rao (PW 2). He further stated that he knew 
Venkubayamma as she used to visit her parents’ house. He stated that he 
had performed pourohityam at the time of the adoption. He claimed that 
the adoption ceremony took place in Raghunadha Swamy Temple and 
datta homam was also performed. He further claimed that after the datta 
homam, the child was physically handed over to the adoptive mother by 
the parents and photos were taken on that occasion. He identiﬁ ed himself 
along with the adoptive mother, the natural parents and the child in Ex. A2 
and Ex. A3 photographs. He further stated that after the oﬃ  cial adoption 
was over at the temple, they worshipped their personal deity at home. PW 7 
stated in his cross-examination that he used to see Venkubayamma once or 
twice a year at her parents’ house in Chandramanipeta. He was questioned 
about certain ceremonies in the context of adoption and stated that he had 
not performed the same. He denied the suggestion that the woman in Exs. 
A2 to A4 photographs was not Venkubayamma. He, however, stated that 
Raghunadha Swamy Temple was in Chandramanipeta and Ramalingeshwara 
and Mukteshwara Temples were in Bhapur. 
13. PW 8 is the Advocate who
attested Ex. C1 aﬃ  davit. PW9 is the 
Sub-Registrar at Chodavaram who registered Ex. A19 Will. He stated in his 
cross-examination that he did not know Venkubayamma personally and that 
the identifying witnesses told him that the executant was Venkubayamma. 
He said that the executant also stated her name to him. PW 10 was a Director 
of the Finger Prints Bureau at Madras. His evidence was that the thumb 
prints in the Adoption Deed and the Will Deed were identical to the thumb 
print of Venkubayamma in the Sub-Registrar’s record pertaining to Ex. A19 
Will. PW 11 was from the Registration Department at Kurnool and spoke 
of Venkubayamma aﬃ  xing her thumb print in Ex. A10 Will in his presence. 
However, in his cross-examination, PW 11 admitted that he did not know 
her personally and relied only on the identifying witnesses. He also could 
not say what the age of the said executant was, due to lapse of time. PW 
12, an Advocate at Srikakulam, stated that he knew Venkubayamma, who 
was a client of his father and, thereafter, himself. He further stated that he 
could identify her and claimed that the woman, wearing glasses and holding
653
a child, in Exs. A2 and A3 photographs, was Venkubayamma. He admitted 
in his cross-examination that, though Venkubayamma was about 70 years 
of age in 1970, she did not appear to be of that age in the photographs. He 
did not know when she died but stated that she died by 1985.
14. PW 13 is the Advocate who attested Ex. C2 aﬃ  davit. He admitted in 
his cross-examination that he previously did not know Pydi Appala Suranna, 
the deponent thereto. PW 14 was an invitee to the adoption ceremony at 
Berhampur. He claimed to be in Ex. A4 photograph. However, in his cross-
examination, he admitted that Venkubayamma must have been about 65 to 
70 years old but the lady in Ex. A4 photograph was about 45 years of age. 
He also admitted that he was only acquainted with PW 2, the natural father 
of the adopted child, and that he had no relationship or friendship either with 
Venkubayamma or her husband and except by way of PW 2’s introduction 
that she was Venkubayamma, he had no other source of information. PW 
15 was an identifying witness in Ex. A10 Will. According to him, Pydi 
Appala Suranna and a person, whose name he did not know, attested Ex. 
A10 Will on the Sub-Registrar’s Oﬃ  ce verandah. He claimed he was present 
when the attestors and the scribe signed on Ex. A10. He said that he could 
identify Venkubayamma and claimed that she was the third person, wearing 
spectacles, in Ex. A2 photograph. He identiﬁ ed her as the woman sitting, 
wearing glasses, with a baby in her
lap, in Ex. A3. He also identiﬁ ed her in 
Ex. A4. He asserted that he knew Venkubayamma for the last 10 years but 
he did not know any other details or when she died.

15. Kaliprasad deposed as DW 1. He stated that Venkubayamma was 
his mother’s mother and asserted that she never adopted any boy during her 
lifetime. He asserted that Venkubayamma only had one daughter and he was 
the son of that daughter. He claimed to be the sole heir to the properties of 
late Venkubayamma. He claimed that since childhood, he was brought up 
in Venkubayamma’s house and that his marriage was performed by her in 
February, 1982. According to him, Venkubayamma was between 75 to 80 
years of age at the time of her death. He said that she told him about a Will 
in his favour after his marriage but he had not seen the document. He denied 
that she had adopted a boy. According to him, she went to Srikakulam till the 
second week of July, 1982, and after that, she wanted to go to her relations’ 
houses at Vizianagaram, Berhampur and Khurda Road. He further stated 
that, by the time he attained the age of discretion, Venkubayamma’s hair had 
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
654 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
turned grey and asserted that it was false that Exs. A2 to A4 photographs were 
of Venkubayamma. He stated that she used to write letters to him whenever 
she was in camp and he was, therefore, acquainted with her signature and 
handwriting. He stated that Ex. A9 Adoption Deed did not bear the signature 
of Venkubayamma. He further stated that Exs. X1 and X2 were not the thumb 
marks of Venkubayamma. He denied the suggestion that Venkubayamma 
had adopted Nalini Kanth and had executed a Will, whereby he would be 
entitled to her properties. 
16. In his cross-examination, Kaliprasad stated that he did not have 
any photograph of Venkubayamma. He denied the suggestion that she 
used to apply hair dye. He also denied that the woman in Exs. A2 and A3 
photographs was Venkubayamma. According to him, Venkubayamma used 
to write letters to him while he was at Hyderabad and she was in the habit 
of signing in English using disjointed letters. He admitted that some of her 
letters were signed in Telugu but a few were signed in English. He asserted 
that the signatures in Ex. A10 were not that of Venkubayamma and denied 
that the thumb marks (Exs. X1 and X2) were of Venkubayamma. 
17. As already noted supra, the Trial Court held in favour of Nalini 
Kanth but, in appeal, the High Court reversed that decision. In essence, this 
case would turn upon the validity of Ex. A10 Will. Further, the validity of 
Ex. A9 Adoption Deed would also
require examination. In the event Ex. A10 
Will is found to be valid, Nalini Kanth would be the sole heir thereunder, but 
if it is held to be invalid and Ex. A9 Adoption Deed is found to be valid, he 
would be an heir, as an adopted son, along with Kaliprasad, the grandson. 
He would then be entitled to a half-share in the suit properties.
18. First and foremost, we may note the essential legal requirements 
to prove a Will. Section 63 of the Indian Succession Act, 1925 (for brevity, 
‘the Succession Act’), prescribes the mode and method of proving a Will 
and, to the extent relevant, it reads as under: -
“63. Execution of unprivileged Wills. - Every testator, not being a 
soldier employed in an expedition or engaged in actual warfare, or an 
airman so employed or engaged, or a mariner at sea, shall execute his 
Will according to the following rules: -
(a). …….
655
(b). …….
(c). The Will shall be attested by two or more witnesses, each of 
whom has seen the testator sign or aﬃ  x his mark to the Will or 
has seen some other person sign the Will, in the presence and 
by the direction of the testator, or has received from the testator 
a personal acknowledgement of his signature or mark, or the 
signature of such other person; and each of the witnesses shall 
sign the Will in the presence of the testator, but it shall not be 
necessary that more than one witness be present at the same time, 
and no particular form of attestation shall be necessary.”
19. In turn, Sections 68 and 69 of the Indian Evidence Act, 1872 (for 
brevity, ‘the Evidence Act’), read as under:
‘68. Proof of execution of document required by law to be attested. 
- If a document is required by law to be attested, it shall not be used 
as evidence until one attesting witness at least has been called for the 
purpose of proving its execution, if there be an attesting witness alive, 
and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness 
in proof of the execution of any document, not being a Will, which 
has been registered in accordance with the provisions of the Indian 
Registration Act, 1908 (16 of 1908), unless its execution by the person 
by whom it purports to have been executed is speciﬁ cally denied.
Section 69. Proof where no attesting witness found. – If no such 
attesting witness can be found, or if the document purports to have been 
executed in the United Kingdom, it must be proved that the attestation 
of one attesting witness at least is in his handwriting, and that the 
signature of the person executing the document is in the handwriting 
of that person.’
20. Trite to state, mere registration of a Will does not attach to it a 
stamp of validity and it must still be proved in terms of the above legal 
mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam1, this 
Court held that the requirements in clauses (a), (b) and (c) of Section 63 of 
1 
 (2003) 2 SCC 91
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
656 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
the Succession Act have to be complied with to prove a Will and the most 
important point is that the Will has to be attested by two or more witnesses 
and each of these witnesses must have seen the testator sign or aﬃ  x his 
mark to the Will or must have seen some other person sign the Will in the 
presence of and by the direction of the testator or must have received from 
the testator a personal acknowledgment of his signature or mark or of the 
signature or mark of such other person and each of the witnesses has to sign 
the Will in the presence of the testator. It was further held that, a person 
propounding a Will has got to prove that it was duly and validly executed 
and that cannot be done by simply proving that the signature on the Will was 
that of the testator, as the propounder must also prove that the attestations 
were made properly, as required by Section 63(c) of the Succession Act. 
These principles were aﬃ  rmed in Lalitaben Jayantilal Popat vs. Pragnaben 
Jamnadas Kataria and others2.
21. More recently, in Ramesh Verma (Dead) through LRs. vs. Lajesh 
Saxena (Dead) by LRs. and another3, this Court observed that a Will, 
like any other document, is to be proved in terms of the provisions of the 
Evidence Act. It was held that the propounder of the Will is called upon 
to show by satisfactory evidence that the Will was signed by the testator, 
that the testator at the relevant time was in a sound and disposing
state of 
mind, that he understood the nature and eﬀ ect of the disposition and put his 
signature to the document of his own free will and the document shall not 
be used as evidence until one attesting witness at least has been called for 
the purpose of proving its execution. It was noted that this is the mandate 
of Section 68 of the Evidence Act and the position would remain the same 
even when the opposite party does not deny the execution of the Will. 
22. Long ago, in H. Venkatachala Iyengar vs. B.N. Thimmajamma 
and others4, a 3-Judge Bench of this Court noted that there is an important 
feature which distinguishes Wills from other documents as, unlike other 
documents, a Will speaks from the death of the testator and, therefore, 
when it is propounded or produced before a Court, the testator who has 
already departed from the world cannot say whether it is his Will or not. 
2 
 (2008) 15 SCC 365
3 
 (2017) 1 SCC 257
4 
 AIR 1959 SC 443
657
It was held that the onus on the propounder to prove the Will can be taken 
to be discharged on proof of the essential facts, such as, that the Will was 
signed by the testator; that the testator at the relevant time was in a sound 
and disposing state of mind; that he understood the nature and eﬀ ect of the 
dispositions; and that he put his signature to the document of his own free 
will. It was, however, noted by the Bench that there may be cases in which 
the execution of the Will is surrounded by suspicious circumstances and the 
same would naturally tend to make the initial onus very heavy and unless it 
is satisfactorily discharged, Courts would be reluctant to treat the document 
as the last Will of the testator.
23. Again, in Jagdish Chand Sharma vs. Narain Singh Saini (Dead) 
through LRs. and others5, this Court held as under: 
‘57. A will as an instrument of testamentary disposition of property being 
a legally acknowledged mode of bequeathing a testator’s acquisitions 
during his lifetime, to be acted upon only on his/her demise, it is no 
longer res integra, that it carries with it an overwhelming element 
of sanctity. As understandably, the testator/testatrix, as the case may 
be, at the time of testing the document for its validity, would not be 
available, stringent requisites for the proof thereof have been statutorily 
enjoined to rule out the possibility of any manipulation. This is more 
so, as many a times, the manner of dispensation is in stark
departure 
from the prescribed canons of devolution of property to the heirs and 
legal representatives of the deceased. The rigour of Section 63(c) of 
the Act and Section 68 of the 1872 Act is thus beﬁ tting the underlying 
exigency to secure against any self-serving intervention contrary to 
the last wishes of the executor.
57.1. Viewed in premise, Section 71 of the 1872 Act has to be 
necessarily accorded a strict interpretation. The two contingencies 
permitting the play of this provision, namely, denial or failure to 
recollect the execution by the attesting witness produced, thus a 
fortiori has to be extended a meaning to ensure that the limited liberty 
granted by Section 71 of the 1872 Act does not in any manner eﬀ ace 
or emasculate the essence and eﬃ  cacy of Section 63 of the Act and 
5 
 (2015) 8 SCC 615
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
658 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
Section 68 of the 1872 Act. The distinction between failure on the 
part of an attesting witness to prove the execution and attestation of 
a will and his or her denial of the said event or failure to recollect the 
same, has to be essentially maintained. Any unwarranted indulgence, 
permitting extra liberal ﬂ exibility to these two stipulations, would 
render the predication of Section 63 of the Act and Section 68 of the 
1872 Act, otiose. The propounder can be initiated to the beneﬁ t of 
Section 71 of the 1872 Act only if the attesting witness/witnesses, who 
is/are alive and is/are produced and in clear terms either denies/deny 
the execution of the document or cannot recollect the said incident.’
24. Earlier, in Bhagat Ram and another vs. Suresh and others6, this 
Court observed as under: 
‘12. According to Section 68 of the Evidence Act, 1872, a document 
required by law to be attested, which a Will is, shall not be used as 
evidence until one attesting witness at least has been called for the 
purpose of proving its execution, if available to depose and amenable 
to the process of the court. The proviso inserted in Section 68 by Act 
31 of 1926 dispenses with the mandatory requirement of calling an 
attesting witness in proof of the execution of any document to which 
Section 68 applies if it has been registered in accordance with the 
provisions of the Indian Registration Act, 1908 unless its execution by 
the person by
whom it purports to have been executed is speciﬁ cally 
denied. However, a Will is excepted from the operation of the proviso. 
A Will has to be proved as required by the main part of Section 68.’
25. Thereafter, in Benga Behera and another vs. Braja Kishore Nanda 
and others7, this Court held thus:
‘40. It is now well settled that requirement of the proof of execution of 
a will is the same as in case of certain other documents, for example gift 
or mortgage. The law requires that the proof of execution of a will has 
to be attested at least by two witnesses. At least one attesting witness 
has to be examined to prove execution and attestation of the will. 
6 
 (2003) 12 SCC 35
7 
 (2007) 9 SCC 728
659
Further, it is to be proved that the executant had signed and/or given 
his thumb impression in presence of at least two attesting witnesses 
and the attesting witnesses had put their signatures in presence of the 
executant.’
26. Much more recently, in Ashutosh Samanta (Dead) by LRs. and 
others vs. SM. Ranjan Bala Dasi and others8, this Court noted that where 
the attesting witnesses died or could not be found, the propounder of the Will 
is not helpless, as Section 69 of the Evidence Act would be applicable. On 
facts, this Court found that others who were present at the time the testator 
and the two attesting witnesses signed the Will were examined and the Will 
was also supported by a registered partition deed which gave eﬀ ect to it. 
Considering these circumstances in totality and as none of the heirs of the 
testator contested the grant of letters of administration, this Court held that 
there could be only one conclusion, i.e., that the Will was duly executed 
and the propounder was successful in proving it. Notably, there was no 
contest to the Will and that is a distinguishing factor when compared with 
the case on hand.
27. On the same lines, in Ved Mitra Verma vs. Dharam Deo Verma9, 
having found that the attesting witnesses had died, this Court held that the 
examination of the Sub-Registrar, who had registered the Will and who 
spoke of the circumstances in which the attesting witnesses as well as the 
testator had signed on the document, would be suﬃ
cient to prove the Will 
in terms of Section 69 of the Evidence Act.
28. However, in Apoline D’ Souza vs. John D’ Souza10, this Court 
had noted that Section 68 of the Evidence Act provides for the mode and 
manner through which execution of a Will is to be proved and held that proof 
of attestation of a Will is a mandatory requirement. Referring to the earlier 
judgment in Naresh Charan Das Gupta vs. Paresh Charan Das Gupta11, which 
held to the eﬀ ect that merely because the witnesses did not state that they 
signed the Will in the presence of the testator, it could not be held that there 
8 
 (2023) SCC OnLine SC 255
9 
 (2014) 15 SCC 578
10  (2007) 7 SCC 225
11  AIR 1955 SC 363
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
660 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
was no due attestation and it would depend on the circumstances elicited in 
evidence as to whether the attesting witnesses signed in the presence of the 
testator, this Court held that the mode and manner of proving due execution 
of the Will would indisputably depend upon the facts and circumstances of 
each case, and it is for the propounder of the Will to remove the suspicious 
circumstances. 
29. In Bhagavathiammal vs. Marimuthu Ammal and others12, a 
learned Judge of the Madurai Bench of the Madras High Court observed 
that the diﬀ erence between Section 68 and Section 69 of the Evidence Act 
is that, in the former, one attesting witness, at least, has to be called for the 
purpose of proving execution and in the latter, it must be proved that the 
attestation of one attesting witness, at least, is in his handwriting and the 
signature of the person executing the document is in the handwriting of that 
person. It was rightly observed that Section 69 of the Evidence Act does not 
specify the mode of such proof and, in other words, the handwriting can be 
spoken to by a person who has acquaintance with the handwriting or the 
signature can be proved by comparison with the admitted handwriting or 
signature of the person executing the document. 
30. Applying the above edicts to the case on hand, we may note that 
neither of the attesting witnesses to Ex. A10 Will Deed, viz., Pydi Appala 
Suranna and B. A. Ramulu, was examined
before the Trial Court, in 
compliance with Section 68 of the Evidence Act. Pydi Appala Suranna was 
stated to have expired by the time the trial commenced and the whereabouts 
of B. A. Ramulu were not known. Therefore, Section 69 of the Evidence Act 
could have been made use of to prove the Will but no witness was examined 
who was familiar with the signature of either of the attesting witnesses and 
who could vouch for the same or produce an admitted signature before the 
Trial Court. The mere marking of Exs. C1 & C 2 aﬃ  davits was not suﬃ  cient 
to satisfy the requirement of Section 69 of the Evidence Act. More so, as 
Balaga Sivanarayana Rao (PW 6), the scribe of those aﬃ  davits, said that Pydi 
Appala Suranna did not sign Ex. A10 Will in his presence and he could not 
say whether the signature therein was that of Pydi Appala Suranna. Similarly, 
K. V. Ramanayya (PW 13), who attested Ex. C2 aﬃ  davit, supposedly of Pydi 
12  2010 (2) Madras Weekly Notes (Civil) 704
661
Appala Suranna, said that he did not even know Pydi Appala Suranna and, 
therefore, he could not vouch for his identity. No evidence was adduced to 
prove the signature of the other attesting witness, B. A. Ramulu. 
31. The contention that Section 69 of the Evidence Act does not require 
actual proof of the handwriting of at least one attesting witness and proof of 
the signature of the executant being in that person’s handwriting cannot be 
accepted. Ashutosh Samanta (supra) and Ved Mitra Verma (supra) also did 
not hold so and, in any event, both are distinguishable on facts. In one, there 
was no contest to the Will and in the other, the Sub-Registrar himself adduced 
acceptable evidence in purported discharge of the mandate of Section 69 of 
the Evidence Act. Presently, no such clinching evidence has been produced 
to satisfy that mandate. It may be noted that PW 11, who was from the 
Registration Department, admitted that he did not know Venkubayamma 
personally and could not even recall her age. Therefore, his evidence that 
he witnessed the signing of Ex. A10 Will has no import in establishing its 
genuineness and validity. Ex. A19 Will Deed dated 26.05.1981 was marked 
in evidence by Nalini Kanth’s guardian, Pasupuleti Anasuya, but it was 
not proved as per Section 63 of the Evidence Act. Kaliprasad said that he 
had never seen it. Therefore, merely because Kaliprasad was shown as the 
sole legatee therein, it cannot be accepted as genuine. In consequence, the
signatures and thumb marks therein and available with the Registration 
Department, in connection therewith, cannot be assumed to be those of 
Venkubayamma. We may also note that this document was not of any 
particular antiquity as it was executed on 26.05.1981, just about a year 
before Ex. A10 Will dated 03.05.1982. Therefore, comparison of Exs. X1 
& X2 thumb marks with the thumb marks available with the Registration 
Department in the context of Ex. A19 Will does not prove anything.
32. For the purposes of Section 69 of the Evidence Act, it is not enough 
to merely examine a random witness who asserts that he saw the attesting 
witness aﬃ  x his signature in the Will. The very purpose and objective of 
insisting upon examination of at least one attesting witness to the Will 
would be entirely lost if such requirement is whittled down to just having 
a stray witness depose that he saw the attesting witness sign the Will. The 
evidence of the scribe of the disputed Will (PW 6) also casts a doubt on the 
identity of the executant as he speciﬁ cally stated that a woman was sitting 
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
662 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
at a distance but he could not tell whether she was Venkubayamma and he 
could not also tell whether Venkubayamma had signed the document. In 
eﬀ ect, Ex. A10 Will was not proved in accordance with law and it can have 
no legal consequence. Nalini Kanth’s claim of absolute right and title over 
Venkubayamma’s properties on the strength thereof has, therefore, no legs 
to stand upon and is liable to be rejected.
33. In addition thereto, the suspicious circumstances that surround 
Ex. A10 Will render it highly unbelievable. Venkubayamma performed 
Kaliprasad’s marriage in February, 1982, i.e., just a few months before the 
alleged adoption ceremony and execution of Ex. A9 and Ex. A10. PW 2, 
Nalini Kanth’s natural father, also stated so. He also said that Kaliprasad 
was residing with Venkubayamma at the time of the adoption. These being 
the admitted facts, Kaliprasad being fully disinherited under Ex. A10 Will 
is surprisingly odd and opposed to normal behaviour. The disowning of 
her own grandson by Venkubayamma is a suspicious circumstance that 
remained unexplained. Unless there was some catastrophic incident which 
estranged her from him during those two months, it is not believable that 
Venkubayamma would have cast out her own grandson and excluded him 
from her Will. A passing sentence in Ex. A10 Will that he became uncaring 
towards her and was placing her in diﬃ  culties is not suﬃ  cient to explain 
this total
disinheritance of a grandson within a few months of performing 
his marriage. More so, when the witnesses’ evidence conﬁ rmed that he was 
with her and was on amicable terms throughout.
34. That apart, Venkubayamma stated in Ex. A10 Will that the adopted 
child would perform her funeral rites, pinda pradaan and other annual shastric 
ceremonies of her ancestors. As already noted earlier, the adopted child was 
of less than one year age at that time and Venkubayamma was in her 70s, if 
not more. If so, this expectation on her part, if at all believable, was wholly 
unrealistic. Signiﬁ cantly, Kaliprasad stated that it was he who performed the 
obsequies of Venkubayamma, his grandmother. Further, the scribe of Ex. 
A10 Will (PW 6) categorically stated that the instructions for scribing it were 
given by some other woman and not Venkubayamma, whereas Pasupuleti 
Anasuya (PW 1) stated that it was Venkubayamma, herself, who had given 
such instructions. So many suspicious circumstances surrounding Ex. A10 
Will make it very diﬃ  cult for us to accept and act upon the same, even if it 
had been proved as per law.
663
35. Coming to the adoption ceremony of 18.04.1982 and Ex. A9 
Adoption Deed, where under Nalini Kanth would, in the alternative, claim 
a half-share in Venkubayamma’s properties, we ﬁ nd that the same are also 
shrouded with equally suspicious circumstances. No doubt, Ex. A9 Adoption 
Deed was registered and Section 16 of the Hindu Adoptions and Maintenance 
Act, 1956 (for brevity, ‘the Act of 1956’), raises a presumption in favour of 
a registered document relating to adoption. It reads as follows:
‘16. Presumption as to registered documents relating to 
adoption - Whenever any document registered under any law for the 
time being in force is produced before any court purporting to record 
an adoption made and is signed by the person giving and the person 
taking the child in adoption, the court shall presume that the adoption 
has been made in compliance with the provisions of this Act unless 
and until it is disproved.’ 
The presumption, as is clear from the provision itself, is rebuttable. 
In G. Vasu vs. Syed Yaseen Sifuddin Quadri13, a Full Bench of the Andhra 
Pradesh High Court pointed out that presumptions are of two kinds - 
presumptions of fact and of law. It was noted that a presumption of fact is 
an inference logically drawn from one fact as to the existence of other facts 
and such presumptions of fact are rebuttable by evidence to the contrary. It 
was also held that presumptions of law may be either irrebuttable, so that 
no evidence to a contrary may be
given, or rebuttable, and a rebuttable 
presumption of law is a legal rule to be applied by the Courts in the absence of 
conﬂ icting evidence. This view was aﬃ  rmed by this Court in Bharat Barrel 
& Drum Manufacturing Company vs. Amin Chand Payrelal14 and it was 
held that in order to disprove a presumption, such facts and circumstances 
have to be brought on record, upon consideration of which, the Court may 
either believe that the consideration did not exist or its non-existence was 
so probable that a prudent man would, under the circumstances of the case, 
act upon the plea that it did not exist. 
36. In this regard, we may also note that Section 11 of the Act of 1956 
stipulates the conditions to be complied with to constitute a valid adoption 
and, to the extent relevant, it reads as under: 
13  AIR 1987 Andhra Pradesh 139
14  (1999) 3 SCC 35
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
664 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
‘11. Other conditions for a valid adoption. - In every adoption, the 
following conditions must be complied with: ― 
(i) to (v) ….; 
(vi) the child to be adopted must be actually given and taken in adoption 
by the parents or guardian concerned or under their authority with 
intent to transfer the child from the family of its birth or in the case 
of an abandoned child or a child whose parentage is not known, from 
the place or family where it has been brought up to the family of its 
adoption: 
Provided that the performance of datta homam shall not be essential 
to the validity of adoption’
37. We may now take note of relevant case law. In Laxmibai (Dead) 
through LRs. and another vs. Bhagwantbuva (Dead) through LRs. and 
others15, this Court held that the mere signature or thumb impression on a 
document is not adequate to prove the contents thereof but, in a case where 
a person who has given his son in adoption appears in the witness box and 
proves the validity of the said document, the Court ought to accept the same 
taking into consideration the presumption under Section 16 of the Act of 
1956. Ergo, the proving of the validity of the document is a must.
38. Much earlier, in Kishori Lal vs. Mst. Chaltibai16, a 3-Judge Bench 
of this Court held that, as an adoption results in changing the course of 
succession, it is necessary that the evidence to support it should be such that 
it is free from all suspicions of fraud and so
consistent and probable as to 
leave no occasion for doubting its truth. On facts, the Bench found that no 
invitations were sent to the brotherhood, friends or relations and no publicity 
was given to the adoption, rendering it diﬃ  cult to believe. 
39. In Govinda vs. Chimabai and others17, a Division Bench of the 
Mysore High Court observed that the mere fact that a deed of adoption has 
been registered cannot be taken as evidence of proof of adoption, as an 
adoption deed never proves an adoption. It was rightly held that the factum 
15  (2013) 4 SCC 97
16  AIR 1959 SC 504
17  AIR 1968 Mysore 309
665
of adoption has to be proved by oral evidence of giving or taking of the 
child and that the necessary ceremonies, where they are necessary to be 
performed, were carried out in accordance with shastras.
40. In Padmalav Achariya and another vs. Srimatyia Fakira Debya 
and others18, the Privy Council found that a cloud of suspicion rested upon 
an alleged second adoption and the factum of the second adoption was 
sought to be proved on the basis of evidence of near relatives who were 
also partisan, which made it unsafe to act upon their testimonies. The Privy 
Council held that both the adoptions were most improbable in themselves 
and were not supported by contemporaneous evidence. 
41. In Jai Singh vs. Shakuntala19, this Court noted the statutory 
presumption envisaged by Section 16 of the Act of 1956 and observed that 
though the legislature had used ‘shall’ instead of any other word of lesser 
signiﬁ cance, the inclusion of the words ‘unless and until it is disproved’ 
appearing at the end of the statutory provision makes the situation not 
that rigid but ﬂ exible enough to depend upon the evidence available on 
record in support of the adoption. This Court further noted that it is a 
matter of grave signiﬁ cance by reason of the factum of adoption and 
displacement of the person adopted from the natural succession - thus 
onus of proof is rather heavy. This Court held that the statute allowed 
some amount of ﬂ exibility, lest it turns out to be solely dependent on a
registered adoption deed. The reason for inclusion of the words ‘unless 
and until it is disproved’, per this Court, have to be ascertained in 
proper perspective and as such, the presumption cannot but be said to 
be a rebuttable presumption. This Court further held that the registered 
instrument of adoption presumably stands out to be taken to be correct 
but the Court is not precluded from looking into it upon production of 
some evidence contra the adoption and the Court can always look into 
such evidence. This Court further noted the mandate of Section 11 (vi) 
of the Act of 1956 and held that the ‘give and take in adoption’ is a 
requirement which stands as a sine qua non for a valid adoption.
18  AIR 1931 Privy Council 81
19  (2002) 3 SCC 634
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
666 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
42. In Mst. Deu and others vs. Laxmi Narayan and others20, this 
Court observed that in view of Section 16 of the Act of 1956, whenever any 
document registered under law is produced before the Court purporting to 
record an adoption made and is signed by the persons mentioned therein, 
the Court should presume that the adoption has been made in compliance 
with the provisions of the said statute, unless and until it is disproved. It 
was further held that in view of Section 16 of the Act of 1956, it is open to 
the persons who challenge the registered deed of adoption to disprove the 
same by taking independent proceedings.
43. In Lakshman Singh Kothari vs. Rup Kanwar (Smt) alias Rup 
Kanwar Bai21, having referred to texts on Hindu Law, this Court observed:
‘10. The law may be brieﬂ y stated thus: Under the Hindu law, whether 
among the regenerate caste or among Sudras, there cannot be a valid 
adoption unless the adoptive boy is transferred from one family to 
another and that can be done only by the ceremony of giving and 
taking. The object of the corporeal giving and receiving in adoption is 
obviously to secure due publicity. To achieve this object, it is essential 
to have a formal ceremony. No particular form is prescribed for the 
ceremony, but the law requires that the natural parent shall hand 
over the adoptive boy and the adoptive parent shall receive him. The 
nature of the ceremony may vary depending upon the
circumstances 
of each case. But a ceremony there shall be, and giving and taking 
shall be part of it. The exigencies of the situation arising out of 
diverse circumstances necessitated the introduction of the doctrine of 
delegation; and, therefore, the parents, after exercising their volition to 
give and take the boy in adoption, may both or either of them delegate 
the physical act of handing over the boy or receiving him, as the case 
may be, to a third party.’
44. In M. Vanaja vs. M. Sarla Devi (Dead)22, this Court took note 
of the relevant provisions of the Act of 1956 and held that a plain reading 
of the said provisions made it clear that compliance with the conditions in 
20  (1998) 8 SCC 701
21  AIR 1961 SC 1378
22  (2020) 5 SCC 307
667
Chapter 1 of the Act of 1956 is mandatory for an adoption to be treated as 
valid and that the two important conditions mentioned in Sections 7 and 11 
of the Act of 1956 are the consent of the wife before a male Hindu adopts a 
child and the proof of the ceremony of actual giving and taking in adoption.
45. In Dhanno wd/o Balbir Singh vs. Tuhi Ram (Died) represented 
by his LRs.23, a learned Judge of the Punjab & Haryana High Court, faced 
with the argument that Section 16 of the Act of 1956 required a registered 
adoption deed to be believed, held that the presumption thereunder, if any, 
is rebuttable and by merely placing the document on record without proving 
the ceremony of due adoption, it could not be said that there was a valid 
adoption. The learned Judge rightly noted that the factum of adoption must 
be proved in the same way as any other fact and such evidence in support of 
the adoption must be suﬃ  cient to satisfy the heavy burden that rests upon any 
person who seeks to displace the natural succession by alleging an adoption.
46. Viewed in the backdrop of the above legal principles, as Ex. A9 
Adoption Deed was registered, the presumption under Section 16 of the Act 
of 1956 attached to it and it was for Kaliprasad to rebut that presumption. 
We ﬁ nd that he did so more than suﬃ  ciently. Mere registration of Ex. 
A9 Adoption Deed did not absolve the person asserting such adoption 
from proving that fact by cogent evidence and the person contesting it
from adducing evidence to the contrary. It is in this respect that various 
suspicious circumstances attached to the adoption ceremony of 18.04.1982 
assume signiﬁ cance. It is an admitted fact that Venkubayamma was residing 
ordinarily at Srikakulam, which is at a distance (98 miles/150 kms) from 
Berhampur. While so, PW 2, himself, stated that she did not invite any of her 
relations from Srikakulam to attend the adoption ceremony at Berhampur. 
Normally, such occasions would not be kept secret or conﬁ dential as an 
adoption would usually be made with much pomp and celebration. The 
clandestine manner in which the alleged adoption is stated to have taken 
place raises a doubt but the same has not been adequately explained. Further, 
as already noted supra, no evidence was adduced to prove that relations 
between Venkubayamma and Kaliprasad, her grandson, had fallen out. The 
document also does not record any reasons as to why Venkubayamma was 
23  AIR 1996 P & H 203
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
668 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
not happy with Kaliprasad, whose marriage she had performed in February 
1982, just a few months earlier.
47. Pertinent to note, Pasupuleti Anasuya (PW 1) who was to 
play a pivotal role as the guardian of the adopted child in the event of 
Venkubayamma’s death, seems to have been absent at the adoption ceremony 
and no reason or explanation worth the name has been oﬀ ered therefor. 
She, herself, admitted that she was not present when the actual ‘giving 
and taking of the child in adoption’ took place and that she is not seen in 
Exs. A2 to A4 photographs. Signiﬁ cantly, she never stated in clear terms 
that she was actually present at that time. Her brothers (PWs 2 and 3) also 
did not vouch for her presence at the adoption. If she was to play such an 
important role in the adopted child’s life, her absence at the ceremony and 
in the photographs speaks volumes. 
48. PW 4 (the photographer), PW 7 (the purohit) and PW 14 (an 
identifying witness) were examined in addition to the family members, viz., 
PWs 2 and 3, to speak of their actually seeing the giving and taking of the 
child in adoption, but we ﬁ nd that their depositions are also not free from 
doubt. The photographs allegedly taken at the time of the adoption ceremony, 
viz., Exs. A2 to A4, are also not convincing. PW 12 and PW 14, who stated 
that the woman in the photographs was Venkubayamma, conceded that she 
did not look like a woman aged 70 years. The identifying
witness (PW 14) 
himself stated that the woman in the photographs looked about 45 years 
old. Two of the tenants of Venkubayamma, viz., DW 2 and DW 3, said that 
the woman in the photographs was not Venkubayamma. 
49. Though the High Court opined that the woman in Exs. A2 to A4 
photographs was not Venkubayamma for the reason that Venkubayamma 
was a woman of advanced age and it was diﬃ  cult to believe that she would 
have dyed her hair at that age, the same cannot be a deciding factor by itself. 
However, the issue, presently, is not whether Venkubayamma would have 
dyed her hair at the age of 70+ years but whether the dark-haired woman 
in Exs. A2 to A4 photographs was Venkubayamma at all. In this regard, 
as already noted above, it was not just the color of her hair that raised a 
question. Doubt arises, not only on that count, but even as to the age of the 
woman in the photographs, going by the witnesses’ depositions. PW 12 
had stated that Venkubayamma was about 70 years of age in the year 1970
669
itself, whereas Exs. A9 and A10 record her age as 70 years in 1982. Either 
way, the woman in Exs. A2 to A4 did not look close to those ages. In eﬀ ect, 
there is no clinching evidence to prove that the woman in the photographs 
was, in fact, Venkubayamma. 
50. The actual ‘giving and taking’ of the child in adoption, being 
an essential requisite under Section 11(vi) of the Act of 1956, we ﬁ nd 
that there is no convincing evidence of that ‘act’ also in the case on hand. 
Interestingly, there are no pictures of the actual ‘giving and taking’ of the 
child in adoption. In Exs. A2 and A3, the purohit (PW 7) is seen standing 
or sitting behind the others and the same cannot be taken to be during the 
ceremony of ‘giving and taking’, as he would have stood/sat in front of 
them, chanting mantras and incantations as per shastras. Ex. A4 is a group 
photograph. Further, there are no photographs of the datta homam, though 
PW 7 claimed that he had performed the same. Even though it is no longer 
considered an essential ceremony, it is of signiﬁ cance when performed, 
and would have been captured for posterity by taking pictures. Strangely, 
though a professional photographer (PW 4) was stated to have been engaged 
for the purpose of taking pictures at the adoption ceremony, he took only 
three photographs and no more. This parsimony is not explained. Further, 
PW 1 producing and marking Ex. A8 receipt, supposedly issued by PW 4 
to the temple, with no explanation as to how it
came into her possession, 
also does not inspire conﬁ dence.
51. More importantly, the evidence of the purohit (PW 7), who is 
stated to have conducted the ceremonies, leads to a doubt as to the very 
adoption having taken place. The adoption ceremony is stated to have been 
performed at Sri Sri Raghunadha Swamy Temple at Bhapur in Berhampur 
but as per PW 7, Raghunadha Swamy Temple is not even in Bhapur but 
in Chandramanipeta and only Ramalingeswara Swamy and Mukteswara 
Swamy Temples are at Bhapur. Though, this discrepancy is sought to be 
explained at this stage, the fact remains that there was no re-examination 
of PW 7 at that time to clarify this telling aspect.
52. That apart, Ex. A9 Adoption Deed is scribed in English but it 
does not even contain a recital that the contents thereof were read over and 
explained in Telugu to the executant. No evidence has been let in for the 
Court to deduce that Venkubayamma was conversant with English language. 
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]
670 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
Further, and more signiﬁ cantly, in the second page of Ex. A9 Adoption Deed, 
Venkubayamma’s signature reads thus: “Moturu bayammma’ and, thereafter, 
the word ‘Venku” was interjected above. Underneath that signature, the 
signature ‘Moturu Venkubayamma’ is again aﬃ  xed. It has come on record 
that Venkubayamma was in the habit of signing in English as well as in 
Telugu. If so, it is strange that she would not have signed her own name 
correctly on the second page and would have left out ‘Venku’ altogether. 
Further, the misspelling of ‘bayamma’ as ‘bayammma’ is also strange and 
signiﬁ cant. 
53. Ex. A9 Adoption Deed records the age of Venkubayamma as 70 
years and states that she was desirous of taking a male child in adoption as 
she had no male issues. The document also records that the adoptive child 
would perform the annual shraddha ceremonies and oﬀ ering of Pinda and 
water, as her natural son, to her ancestors. Nalini Kanth was aged less than 
a year when this adoption deed was executed whereas the adoptive mother, 
going by the document itself, was aged 70 years. Being of that age, it is 
strange that Venkubayamma would have expected this toddler to perform 
her obsequies after her death and such other ceremonies for her and her 
ancestors. Further, it is diﬃ  cult to believe that a woman of such advanced 
years would willingly take on the responsibility of caring for an infant at 
that age.
54. Last but not the
least, Ex. A9 Adoption Deed mentions that the 
adoption took place at Sri Sri Raghunadha Swamy Temple but Ex. A10 Will 
records that Venkubayamma adopted the child with the consent of his parents 
in the presence of relations at the house of his parents at Chandramanipeta, 
Berhampur. Therefore, as per this document, the adoption took place, not at 
a temple, but at the house of the natural parents, i.e., PW 2’s house. There is, 
thus, a contradiction between Ex. A9 Adoption Deed and Ex. A10 Will as to 
the place where the adoption took place. An attempt was made to discredit 
the scribe (PW 6) in this regard, but this disparity in the two documents 
which were drawn up within a short span of time speaks for itself. 
55. On the above analysis, we are of the opinion that the adoption of 
Nalini Kanth by Venkubayamma on 18.04.1982 is not proved in accordance 
with law despite the registration of Ex. A9 Adoption Deed dated 20.04.1982. 
The very adoption, itself, is not believable, given the multitude of suspicious
671
circumstances surrounding it. Nalini Kanth cannot, therefore, be treated as 
her heir by adoption. Further, as Ex. A10 Will dated 03.05.1982 was also 
not proved in accordance with law, it does not create any right in his favour. 
In consequence, Nalini Kant h is not entitled to claim any right or share in 
Venkubayamma’s properties. The ﬁ ndings of the High Court to that eﬀ ect, 
albeit for reasons altogether diﬀ erent, therefore, do not warrant interference. 
The judgment and decree of the High Court is conﬁ rmed.
The appeal is accordingly dismissed. 
Costs of this appeal, their own.
Headnotes prepared by: 
Appeal dismissed.
Divya Pandey
MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD, 
THROUGH LRS.) [SANJAY KUMAR, J.]