Andhra HC (Pre-Telangana)
Vandavasi Karthikeya Alias Krishna ... vs S. Kamalamma And Others on 23 July, 1993
Equivalent citations: AIR1994AP102, 1993(3)ALT320, AIR 1994 ANDHRA PRADESH 102, (1993) 3 ANDH LT 320, (1993) 2 LS 126, (1994) 1 HINDULR 561
JUDGMENT
1. This letters patent appeal is from the judgment of a learned single Judge in A.S. No, 204 of 1978 allowing the appeal filed by respondents I to 3 herein against the judgment and decree in O.S. No. 21 of 1974 decreeing the suit filed by the appellant herein.
2. Whether the appellant-plaintiff --Karthikeya alias Krishna Murthy -- is the adopted son of Venkala Subbaiah, his junior paternal grandfather, is the only question that arises for consideration in this letters patent appeal.
3. One Narasimhulu was the great grandfather of the appellant and he had two sons --Perumailu, the paternal grand-father of the appellant and Venkata Subbaiah. Perumallu died in 1932 surviving him behind two sons and one daughter -- Srinivasa Varma, Govindarajulu (the Father of the appellant) and Adilakshmamma. Srinivasa Verma has one daughter and one son -- Nagabhushan-arama and Subrahmanyam. Govindarajulu has four sons including the appellant and one daughter. Venkata Subbaiah, the junior paternal grandfather of the appellant, died on 12-11-1966. His wife -- Govindamma --predeceased him 35 years back in 1931 surviving her behind Venkata Subbaiah, her husband, three deaughters and one son. The son -- Narasimhulu -- died unmarried in 1938. The eldest daughter -- Kantamma -- died immediately after her marriage. The other two daughters -- Kamalamma (D-2) and Rajamma (D-3) were married in the year 1947. The first defendant in the suit is one Kotamma, admittedly the concubine of Venkata Subbaiah, with whom he was residing at the time of his death. The fourth defendant is the brother's son of the first defendant in whose favour the first defendant executed a settlement deed on 12-12-1966 in respect of items Nos. 1 and 2 of plaint A schedule property. The fifth defendant is a tenant of one of the plaint schedule properties. The pedigree table indicates the relationship of the parties at a glance:
V. NARASIMHULU _________________________|_______________________________ | | Perumallu Venkata Subbaiah (died in 1932) (Died in 12-11-66) | | (Govindamma, wife died | in 1931) ______ |_____________ _____________________________________ | | | | | | | Srinivasa Govinda- Adilaksh- Kan- Narasimhulu Kama- Raja..
Varma rajulu mamma thamma (son - died lamma mma
(Son) (Son) (daughter) (died) in 1938) (D-2) (D-3)
| |
Nagabhu- Subrah-
shanamma manyam
(Daughter) (son)
__________|__________________________________ ___________
| | | | |
Pundaree- Karthikeyan Perumallu Sateesh Padmavathi |
kakshaiah alias Krishna (Son) (Son) (Daughter) N. Kotamma
Murthy (Son) Concubine of
(Plaintiff) Venkata Subbamma
(Defendant No. 1)
4. Venkata Subbaiah was in Government service and retired as a Head Draughtsman in the Public Works Department. A few years after the death of his wife, he developed contacts with the first defendant, who became his permanent kept mistress. In the year 1954, the first defendant came to stay permanently with Venkata Subbaiah at his own house in Krishna Mandiram street in Nellore town. During his lifetime, Venkata Subbaiah executed three wills. The first will was on 25-12-1959 (Ex. B. 11) and the second will (Ex.B. 12) was on 21-12-1962. Both these wills were written by him in his own handwriting. In Ex.B.11, there are four schedules. A schedule comprises three items -- Item No. 1 is a house in Nellore town; item No. 2 is Ac. 1-90 cents of wet land and hem No. 3 is Ac. 0-75 cents. B schedule consists of Ac. 1-10 cents of land. C schedule comprises Ac. 1-25 cents and D schedule related to Ac. 0-75 cents of land. In respect of A and D schedule properties, life interest was given to the first defendant. The appellant-plaintiff was given the vested remainder in respect of A and B schedule properties. Life interest in B schedule property was given to Kamalamma -- the second defendant. To Rajamma -- the third defendant -- life interest was given in respect of C schedule property and the vested remainder in favour of Subrahmanyam -- the son of Srinivasa Varma, and nephew of Venkata Subbaiah. The vested remainder so far as D schedule property was concerned was in favour of the orphanage in Nellore town. It was mentioned in Ex.B.11 by Venkata Subbaiah that after the death of this father --Narasimhulu -- he and his brother --Perumallu -- by their individual initiative and labours acquired properties; that his brother Perumallu died 25 years back and after the death of his brother, he and his sister-in-law (widow of the brother) acted as guardians and on 11-2-1939, partitioned the properties by a registered document (Ex. A-6). He also mentioned in that will about the marriages of his two daughters D-2 and D-3) and their living separately with their husbands. More importantly, he said that both the daughters had no affection for him; they not only showed no concern for his welfare but also adopted a hostile attitude and so he had no relationship whatsoever with them.
5. The second will (Ex.B.12) came to be executed on 21-11-1962 by Venkata Subbaiah cancelling the earlier will Ex.B.11. Under Ex.B.12, he gave his entire properties to the first defendant (his permanent kept mistress) with absolute rights and if any properties were left behind by the first defendant after her life time, they would go to the local orphanage. Ex.B.14 is the last will and testament of Venkata Subbaiah executed on 6-10-1966. There are three schedules to Ex.B.-14. Schedule A comprises a house in Nellore town and Ac. 1-90 cents of wet land; B schedule is agricultural land admeasuring Ac. 0-80 cents and C schedule also is an agricultural land admeasuring Ac. 2-30 cents. Under Ex.B.14, entire A schedule property was given with absolute rights to the first defendant and B and C schedule properties were given with absolute rights to D-2 and D-3 respectively. The appellant-plaintiff was not given any property under Ex.B-14 nor are there any recitals in Ex.B-14 about the appellant's adoption by Venkata Subbaiah. Ex.B-14 was scribed by D.W.3 and attested by D.Ws.4 and 5. It was registered at the house of Venkata Subbaiah on 8-10-1966. One month and three days later, Venkata Subbaiah died of Tuberculosis. Prior to that on 17-10-1966, he was admitted to a private nursing home from where he was discharged on 5-11-1966 and death occurred one week thereafter.
6. Alleging that Venkata Subbaiah adopted the appellant-plaintiff on 22-2-1964, the suit -- O.S. No. 21 of 1974 (originally O.P. No. 4 of 1967 which was subsequently numbered as O.S. No. 21/74) -- was laid on behalf of the appellant by his next friend and maternal grand-father -- Duwuru Ram Murthy. The suit was laid informa pauperis for partition of the plaint schedule properties and for separate possession of 2/3rds share. Not less than within 2 months after the death of Venkata Subbaiah, the suit was instituted on 5-1-1967. The alternative relief sought was that in the event of the court upholding the will -- Ex.B.14 dated 6-10-1966 -- a decree should be passed in favour of the appellant to the extent of half of the plaint schedule properties. The house and agricultural lands are covered by plaint A schedule and the movables are shown in the B schedule. The outstandings of the family are mentioned in the C schedule. For some time, there were temporary misunderstandings between the plaintiffs (appellant's) family and Venkata Subbaiah but the differences between Venkata Subbaiah and his two daughters (D-2 and D-3) were more serious.
7. After tracing the history of the family, it was averred in the plaint that Venkata Subbaiah had love and affection towards the plaintiff and being orthodox minded, he was anxious to have a son to perpetuate his lineage and so he requested the parents of the plaintiff-appellant to give the plaintiff in adoption and they agreed for the same. At that time, the age of the plaintiff-appellant was eight years. The adoption took place on 22-2-1964; all the requirements of a valid adoption -- giving and taking and other ceremonies -- were performed and since then, the appellant had been Maying under the protection and guardianship of Venkata Subbaiah. In 1965, Venkata Subbaiah admitted the plaintiff in the Municipal High School in Janda Street, Nellore, which was near his residence. The plaint also alleges that the first defendant taking advantage of the old age of Venkata Subbaiah, his sickly condition and unsound mind, began to ill-treat him; defendants 2 and 3 who were antagonistic to Venkata Subbaiah colluded and conspired with the first defendant and came to live with Venkata Subbaiah in his house. This collusion on the part of defendants 1 to 3 disabled the family members of the appellant to approach Venkata Subbaiah. The collusion had resulted in the will dated 6-10-1966-(Ex.B.14) which was alleged to be illegal and void as the same was executed by Venkata Sibbaiah in an unsound and unconscious state of mind; he was not in a sound and disposing state of mind.
8. Resisting the suit, the first defendant filed a written statements contending that after the first will -- Ex. 11 -- was executed by Venkata Subbaiah, there were misunderstandings between Venkata Subbaiah and the appellant and those misunderstandings were not subsequently reconciled. She denied the claim of the appellant that he was adopted by Venkata Subbaiah and asserted that the appellant was living only with his parents. She also denied the allegations that Venkata Subbaiah was ill-treated by her that the will
-- Ex.B. 14 -- was not validly executed. Defendants 2 and 3 filed a memo adopting the written statement of the first defendant. On behalf of the appellant, 13 witnesses were examined at the time of the trial and on behalf of the defendants, seven witnesses were examined. The documentary evidence comprised Exs. A-1 to A-70 on the side of the appellant-plaintiff and Exs. B.1 to B.19 produced by the defendants. Through witnesses, Exs. X.1 to X. 11 were marked. P.W. 1
--Govindarajulu is the natural father of the appellant. The factum of adoption was spoken to by six witnesses -- P. Ws. 2 to 6 and P.W. 10 besides P.W. 1, the father of the appellant. P.W. 2 was the astrologer who fixed the muhurtham. P.Ws. 3, 4, 5, 6 and 10 spoke about the actual ceremony of adoption. 'P.Ws.6 and 10 are close relations of the appellant. P.W. 11 is the head-master of the school where the appellant was admitted in the 6th class and he spoke about X.1, the admission register sheet, which contained the signature of Venkata Subbaiah showing him as the adoptive father of the appellant. The third defendant figured as D.W. 1 and her husband gave evidence as D.W. 6. Immediately after the suit was filed, an application was moved on behalf of the appellant for appointment of an advocate-Commissioner to take inventory of the documents in the house of Venkata Subbaiah, where the first defendant was residing. One of the documents inventoried in the house of Venkata Subbaiah was Ex. A-12 -- Printed invitation card -- in the name of Venkata Subbaiah about the adoption ceremony.
9. The learned trial Judge, after considering in great detail the entire evidence -- both oral and documentary -- has upheld both the validity of the adoption and also Ex.B. 14, the last will and testament of Venkata Subbaiah. He believed the evidence of the witnesses who spoke about their having witnessed the adoption. The contention of the respondents-defendants that as no near relations of the parties were examined in support of the adoption, the same should be disbelieved was negatived by the learned trial Judge observing that respectable persons belonging to different castes apart from the witnesses belonging to the caste of the appellant came forward to speak about the adoption and there was no reason to doubt the genuineness of their testimony. He dealt with the intrinsic evidence on record in the form of recitals in Ex.B.11, the first will, in which Venkata Subbaiah had, in unequivocal terms, mentioned about the animosity exhibited by his two daughters (D-2 and D-3) and the type of indifference they had towards him. He (Venkata Subbaiah) went to the extent of mentioning that his two daughters should have nothing to do with his properties.
'Ex.B.12, the second will, also contains recitals to a similar effect. The learned trial Judge while rejecting the argument of the defendants-respondents that if Venkata Subbaiah had wanted to have a boy in adoption, he would have definitely adopted one of the sons of his daughters, observed after alluding to the recitals in Exs. B.11 and B.12:
"For a father to feel such an aversion towards his daughters, there must have been such acts of the daughters to feel such aversion as contained in the recitals of Exs. B. 11 and B.12. Because of such acts of the daughters, it is more probable for Venkata Subbaiah instead of taking any one of the daughters' sons in adoption, to prefer his own brother's grandson. The above circumstances pointed out is the answer to another contention of the learned counsel for the defendants namely that the daughters of Venkata Subbaiah did not attend the alleged adoption function and so the alleged adoption should be disbelieved."
When the adoption was proved as a fact, the learned trial Judge expressed the opinion that the absence of the deed of adoption is not a factum to disbelieve the oral and documentary evidence especially when the deed of adoption is not a mandatory legal requirement. The learned Judge believed Ex.X. 1, the application submitted by Venkata Subbaiah for admission of the appellant into 6th class in the Municipal school, and recorded a finding about its genuineness after verifying the several other admission forms, Exs. X.4 to x.11
10. As both the adoption and the will (Ex.B.14) were found to be true, the learned trial Judge granted a decree to the extent of half of the plaint schedule properties -- the alternative prayer of the plaintiff. When once the adoption was upheld, the appellant became entitled to the extent of half of the properties as a coparcener and as the will (Ex.B. 14) was found to be genuine, the legatees under the will would be entitled to the remaining half of the properties.
11. Aggrieved by the judgment and decree of the learned trial Judge, defendants 1 to 3 (respondents 1 to 3 herein) filed A.S. No. 204 of 1978 in this court. No cross-appeal was filed by the appellant-plaintiff questioning the finding as to the genuineness of the will Ex.B.14. The judgment of the trial court on the validity of the will -- Ex.B.14 -- thus became final.
12. A learned single Judge allowed the appeal -- A.S. No. 204 of 1978 -- taking the view that none of the witnesses spoke about the giving and taking of the child in adoption; neither the purohit, nor the natural mother of the appellant nor the appellant himself figured as witnesses. Before the application was made to the school authorities -- Ex.X. 1 -- no attempt was made by Venkata Subbaiah to get his name substituted for that of P.W. 1 (the natural father of the appellant) as the father of the appellant in the register of the school where the appellant was studying 5th class and Ex.B.14, the last will and testament of Venkata Subbaiah, does not refer to the factum of adoption of the appellant are some of the reasons based upon which the learned Judge allowed the appeal. The learned Judge also recorded the opinion that none of the relations of the appellant, except P.W. 1 and P.W. 1's brother-in-law, spoke about the adoption and the witnesses who testified about the adoption are in some way or the other connected with Co-operative Department, where P.W. 1, the father of the appellant, was working as Co-operative Sub-Registrar and, therefore, they obliged P.W. 1. In the opinion of the learned Judge, the affinity for the appellant displayed by Venkata Subbaiah in the initial stages faded away gradually and it was not unusual for such affection to be diluted after lapse of time and that Venkata Subbaiah moved closer towards his daughters and his kept mistress --Kotamma -- who was associated with him for a long time. The signature of Venkata Subbaiah found on Ex.X.1 also was disbelieved by the learned Judge. The absence of the deed of adoption was also one of the grounds mentioned by the learned Judge for allowing the appeal.
13. Both the counsel have taken us through the two judgments and the entire evidence -- both oral and documentary.
14. Sri Ramana Reddy, learned counsel for the appellant, has contended that the reasoning of the learned single Judge is clearly unsustainable. There are no grounds to disbelieve the evidence of the direct eye-witnesses. Not only persons belonging to the caste of Venkata Subbaiah -- P.Ws. 6 and 10 -- who were living in the same street, but also persons who were closely known to the family but belonging to different castes and holding respectable positions, whose motives cannot be doubted in the least, came forward and testified about the factum of adoption. If, as a fact, the adoption was proved, the absence of a recital in Ex.B.14, the last will of Venkata Subbaiah, about the adoption would not, in any manner, invalidate it. The learned Judge has committed a factual error in that without noticing the clear evidence available on record as regards the giving and taking of the boy in adoption, a finding was recorded that the factum of adoption was not spoken to by any witnesses. The attitude of the daughters (D-2 and D-3) towards their father --Venkata Subbaiah -- was so hostile that he went to the extent of saying that they would have nothing to do with his properties and this he mentioned in clear terms in both the wills --Exs. B.11 and B.12.
15. The fact that earlier in Ex.B.11, long before the adoption was thought of, Venkata Subbaiah conferred absolute rights in favour of the appellant after the lifetime of the first defendant in respect of a major portion of his properties covered by schedules A and B to the will is a clear indication of the measure of love and affection Venkata Subbaiah had towards the appellant. The documentary evidence in the form of the admission register, the invitation cards and above all, Ex.A. 12, the printed invitation card in the name of Venkata Subbaiah found in his house where the first defendant was residing at the time when the advocate-Commissioner inventoried the documents, must lead to the inference that the appellant was adopted by Venkata Subbaiah.
16. Opposing these contentions, Sri J.V. Suryanarayana Rao, learned counsel for the respondents-defendants, has submitted that unless there is cogent, strong and clinching evidence in support of the plea of adoption, the same cannot be believed having regard to the fact that Venkata Subbaiah left behind him two daughters, who had sons of their own. There are several suspicious circumstances indicating the falsity of the theory of adoption. When Venkata Subbaiah's only son died in 1938, if he wanted to adopt a boy, he could have done it a few years thereafter. It was unthinkable that at the age of 67 years in 1964, he suddenly developed the idea of adopting the appellant thus making him a coparcener resulting in his losing rights in the property to the extent of one half. Even under the will Ex.B.11 -- his first will -- the appellant was not the exclusive beneficiary; some property -- Ac. 1-25 cents -- was also given in favour of Subrahmanyam, son of Srinivasa Varma -- another nephew of Venkata Subbaiah. When the plaint averment is to the-effect that some misunderstandings cropped up between Venkata Subbaiah and the appellant's family after 1959, unless there is positive evidence to show that those misunderstandings were reconciled, the theory of adoption should not be given any credence. Above all, there are certain other circumstances also, according to the learned counsel, against the case of the appellant: In Ex.A.16 sale deed dated 14-8-1965, by which certain land was disposed of by Venkata Subbaiah in favour of a third party, there was no recital about his having adopted the appellant; Venkata Subbaiah, being a man of worldly wisdom -- as 'lisclosed by his registering the three wills Exs. B.11, 12 and 14 -- there is no convincing reason coming forth from the appellant's side as to why he did not mention in Ex.B.14 about the factum of adoption and why he did not take a deed of adoption.
17. As already mentioned by us, the only point for our decision is: whether the appellant is the adopted son of Venkata Subbaiah? In order to answer this point, necessarily, we must advert to the evidence on record and before we do so, we think it appropriate to refer to certain rulings bearing on this aspect. In Dal Bahadur v. Bijai Bahadur, AIR 1930 PC 79, the Privy Council had to consider the nature and value of the evidence put forward in support of the plea of the respondent in that case that he was adopted by a widow. The suit, in that case, was instituted by the reversioners. Certain documents showing that the widow herself had admitted the respondent as her adopted son were relied upon. There was only one direct eye-witness -- an old man -- who claimed that the widow was given the power to adopt and she adopted the respondent therein. The so called admissions made by the widow were held to be of no evidentiary value by the Privy Council observing that the principle governing clause (3) of S. 32 of the Evidence Act -- in the ordinary course of business, a person is not likely to make a statement to his own detriment unless it is true -- "is manifestly wanting in the case of a Hindu widow". The mutation proceedings resulting in the name of the adopted son being substituted in the records for that of his adoptive mother were held to be of no avail since the reversioners, who instituted the suit, had no right to cross-examine the witnesses during the mutation proceedings. As to whether the evidence of the old man should be given any weight, the Privy Council held:
".....it would be impossible to rely on this piece of evidence and this piece of evidence alone for the purpose of satisfying the very grave and serious onus that rests upon any person who seeks to displace the natural succession of property by the act of an adoption. In such a case, the proof requires strict and almost severe scrutiny, and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is having regard to the fallibility of human memory and the uncertainty of evidence given after the lapse of such time, to see that the evidence is sufficient and strong."
On that view, the Privy Council held that the adoption was not true and allowed the appeal of the reversioners. In Kishori Lal v. Mt. Chaltibai, the parties were Marwari Agarwals belonging to a commercial community. There was no formal deed of adoption. The ceremony of adoption was not followed by any feast nor any photograph taken nor presents given to the boy. None of the relations was invited or was present. The family was accustomed to writing accounts and there were accounts to show the expenditure incurred on the 13th day ceremony after the death of the adoptive father but no accounts were written as to the expenditure incurred for the adoption. No contemporary documents were produced in proof of the adoption. In that context, the Supreme Court observed (at page 508):
"As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of the accounts was emphasised by the Privy Council....."
There was also conflicting documentary evidence in that case as to the time when the alleged adoption took place. The oral evidence was highly inconsistent on the question whether the adopted boy stayed with his natural parents or adoptive parents. In Raghavamma v. Chenchamma, , the parties were very affluent in a village and the boy allegedly given in adoption was the only son of his natural parents. There was no evidence as to whether any pomp and show followed the alleged caremony of adoption. In that factual state, the Supreme Court observed:
"It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity...... But curiously, no document of adoption was executed, no invitations were sent to relatives and village officers and no expenditure incurred in connection with the adoption was entered in the accounts. Unless there were compelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show".
18. When there was oral evidence in respect of the claim of adoption without there being any registered document, the Supreme Court held in Rahasa Pandiani v. Gokul-ananda Panda, :
".....the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession".
In the light of the aforesaid dicta, we have to scrutinise the evidence on record in order to record a finding as to the claim of the appellant herein that he is the adopted son of late Venkata Subbaiah.
19. Venkata Subbaiah, after the death of his brother -- Perurnallu -- looked after the children of his brother as their guardian. He performed the marriages of the daughter and two sons of his brother -- Srinivasa Varma, Govindarajulu and Adilakshmamma. Invitation cards were issued in his name as is evident from Exs. A-7, A-8 and A-9. According to P.W. 1, the father of the appellant, part of the expenses for the marriages were met by Venkata Subbaiah. The invitation cards also were found in the house of Venkata Subbaiah when the Advocate-Commissioner inventoried the documents in that house pursuant to the directions issued by the trial court. The appellant is not a stranger to Venkata Subbaiah. He is one of the sons of Venkata Subbaiah's nephew. The interest taken by Venkata Subbaiah in the welfare of his nephews and niece after the death of his brother cannot be ignored in judging the case of the appellant. It is not as if two different families, hostile to each other, suddenly claimed to have come together for the purpose of going through the formality of an adoption ceremony. It is true that an adoption displaces the normal rule of succession and the case on hand is not an exception. Venkata Subbaiah has two daughters (D-2 and D-3) who have sons of their own is not in dispute. Equally not in dispute is the aversion Venkata Subbaiah had towards his daughters and the recitals in Exs. B. 11 and B.12 in his own handwriting expressing in strong language that they did not care for him; not only evinced no interest but adopted a hostile attitude and animosity towards him and, therefore, he would have nothing to do with them and that they would not be entitled to his properties. Are there any exceptional circumstances in evidence indicating that subsequent to Ex.B.12 dated 21-12-1962, Venkata Subbaiah developed affection towards his daughters? Did Venkata Subbaiah, at any time, think of adopting any one of his grand-children by his daughters? If there is such evidence, it will be an indication of the intention of Venkata Subbaiah to adopt any of the sons of his daughters. Before adverting to this aspect, we would like to examine the evidence adduced by the appellant in support of his plea of adoption as the burden is on him by S. 101 of the Evidence Act to prove what he has pleaded.
20. The appellant did not figure as a witness nor did his natural mother. The learned single Judge pointed out this as one of the factors to disbelieve the appellant's case. On the dale of the adoption, i.e., 22-2-1964, the appellant was aged 8 years -- his date of birth being 10-11-1955. The suit Came up for trial in 1974. Part of the chief-examination of P. W. 1 was recorded on 27-11-1972 (Sic) and his evidence was completed on 21-1-1975. A decade after the adoption, surely it was not possible for the appellant even if he were to figure as a witness to recapitulate the details of the ceremonies, the names of the guests who attended the adoption ceremony and the arrangements that were made especially considering the fact that he was aged only 8 years at that time. His examination would not have brought forth anything more than what was already brought on record in the form of evidence of other witnesses. It is understandable why his mother did not go into the witness box. We can take judicial notice of the fact that in middle class tradition bound Hindu families, no house-wife would like to figure as a witness unless circumstances compel her to do so especially when she is not an educated woman. The appellant's mother -- beyond going to the elementary school --did not receive any education. Being a full-time house-wife, she must have felt or her husband, P.W. 1, must have thought that no useful purpose would be served by subjecting her to the trouble of figuring as a witness. On this score, we are of the view that the rest of the evidence should not be brushed aside.
21. P.W. 1, the father of the appellant, has stated in his evidence that his uncle, Venkata Subbaiah, asked him and his wife to give the appellant in adoption and that was agreed to by him and his wife and his relations. He went to an astrologer (P.W. 2), a resident of Lakshmipuram in Nellore, to fix the muhurtham and the muhurtham was fixed for 22-2-1964. He also sent invitations for the ceremony and Ex.A.12 is one such invitation card. The adoption ceremony took place on 22-2-1964 as scheduled. One Gaddam Gunnaiah acted as the Purohit in the ceremony. Lord Vigneshwara was worshipped with the chanting of mantrams and thereafter he and his wife gave the child to Venkata Subbaiah saying we were giving the child and Venkata Subbaiah took the boy in his hands saying that he was taking the boy in adoption, and at that time some mantrams were recited and a lunch was arranged. He also mentioned the names of the people who attended the function. P. Ws. 2 to 6 and 10 are some of the persons who attended the ceremony. They mentioned about the actual factum of adoption. Barring P.Ws. 6 and 10, who are the relations of P.W. 1, the others belonged to different castes. We do not find any circumstances warranting rejection of their testimony.
22. P.W. 2 is an astrologer, a native of Kerala, who settled down in Nellore. He produced Ex.A.62 containing the 'lagna patrika' for the adoption ceremony. He also attended the function. When P.W. 1 went to him with summons, he picked up Ex. A.62 and he asserted in the cross-examination that he has more than 1000 scripts and lagna patrikas written by him fixing auspicious dates. We do not agree with the reasoning of the learned Judge that because he does not know Telugu, his evidence was not true. P.W. 3 is a Reddy by caste and a businessman by profession. He was for some time the Director of Co-operative Building Society. After the management was superceded, P.W. 1 happened to be the Special Officer. On this ground, his evidence was questioned as unbelievable. We do not agree. He had nothing to do with the Cooperative Department. Merely because he worked as the Director of Co-operative Building Society, we cannot draw any inference that in any manner he was obliged to P.W.1, who acted for some time as the Special Officer of the Co-operative Building Society. We should not also overlook a very important aspect that the husband of D. W. 6, Kabir Das, the husband of the third defendant (Rajamma -- the second daughter of Venkata Subbaiah) was also in the Co-operative Department as an officer. This crucial fact, more than anything else, demolishes the criticism that all the witnesses who spoke about their having witnessed the adoption had, in some way or the other, dealings with Co-operative Department.
23. P.W. 4 is also a Reddy, a retired Secretary of the Co-operative Central Bank. He was present at the adoption ceremony and he spoke about the details of giving and taking of the boy. P.W. 5 is a retired teacher belonging to "Balija' caste who attended the function and he spoke about the details of the adoption. He said that in response to the invitation received by him from Venkata Subbaiah, he attended the function. His evidence was sought to be demolished on the ground that the invitation card was not produced and at the relevant time, he was working at Atmakur -- a place 32 miles away from Nellore. We have no hesitation to reject the criticism in regard to this witness for the simple reason that he was a neighbour of Venkata Subbaiah and as a good neighbour, anybody could have felt it as a neighbourly obligation to attend the adoption ceremony especially when Venkata Subbaiah, at the old age of 67 years, was adopting his grand nephew. P.W. 6 belongs to the same caste as Venkata Subbaiah -- Agnikula Kshatreeya and he was the Vice-President of the Caste Association. He attended the adoption ceremony and stayed for lunch. He denied the suggestion that he was working under one Subrahmanyam, the elder brother of the maternal grandfather of the appellant, and in the municipal elections when Subrahmanyam contested, Venkata Subbaiah supported him. He admitted that in the municipal elections when Subrahmanyam contested, Venkata Subbaiah supported him. What was elicited in his cross-examination has not affected, in the least, his testimony.
24. P.W. 10 belongs to the same caste as that of the appellant. He produced the invitation card sent by Venkata Subbaiah (Ex. A.64) and Ex.A.65, letter written by P.W. 1. At that time, P.W. 10 was a resident of Venkatagiri. He denied the suggestion that Exs. A.64 and A.65 were concocted. Ex.A.65, letter is in the handwriting of P.W. 1. Ex. A.63 is another invitation card produced by P.W. 9, one Surendra Babu, who testified that Ex.A.63 was addressed to his late brother-in-law -- Subrahmanyam -- and after the death of Subrahmanyam, his sister has been staying with him. As she was suffering from illness, at her instance, he produced the invitation card Ex.A.63.
25. The invitation cards, Exs. A.63, A.64 and A.65 bear the postal stamps of the place of posting and also the place of destination. Except a bare suggestion that they are concocted, nothing was brought on record to indicate the suspicious nature of these documents. From the very fact that these invitation cards bear the post marks of the place of posting and the place of destination, we have to draw the inference that in the normal course they were posted and received by the addressees. Under S. 16 of the Evidence Act, all these three documents are admissible in evidence. We may usefully extract the following statement of law from Sarkar's Law of Evidence:
"Postmark. The use of a postmark in evidence involves at least three distinct principles : 1) That the mark was generally affixed by an officer of the post office concerned, 2) that it is evidence that the cover bearing it was stamped on the date the impression bears. 3) That the post mark is evidence that the place of office mentioned therein was actually the place where it was affixed....."
In the absence of anything indicating that these letters/invitation cards were either not posted or concocted, the presumption incorporated in clause (f) of S. 114 of the Evidence Act viz., that the court may presume that the common course of business has been followed in particular cases comes into play. The learned Judge's observation that no witness has stated about the giving and taking of the boy in adoption is contrary to the record and, therefore, clearly unsustainable.
26. The fact that barring two witnesses, the rest of the eye-witnesses to the ceremony of adoption are from different castes is a circumstance which greatly supports the theory of adoption. Had there been witnesses solely belonging to the caste of the appellant, that would have given rise to a natural suspicion that the caste people have conspired and concocted the story of adoption. On the other hand, the presence of witnesses belonging to different castes holding respectable positions in life and in no way under any personal obligation to P.W. 1 lends naturalness and reality to the appellant's version as to the factum of adoption.
27. As regards the invitation, Ex.A.12, as already pointed out by us, it was found by the advocate-Commissioner at the time when the documents and other articles in Venkata Subbaiah's house were inventoried. Sri Suryanarayana Rao, learned counsel for the respondents-defendants, has commented that this document was planted in Venkata Subbaiah's house. We have no hesitation in rejecting the comment made by the learned counsel; the house was in the possession of the first defendant and unless it was a case of collusion between the first defendant and the appellant, there was no basis for such a suggestion to emerge. There is clear documentary evidence pointing out that after the adoption, the appellant's father's name was corrected as Venkata Subbaiah. Ex.X.2 is the Record Sheet of A.M.M. Elementary School, Savarala Street, Nellore, where the appellant studied up to 5th class. The appellant's father's name was mentioned as V. Govinda-rajulu (his natural father and P.W. 1). Ex.X.1 is the admission register sheet of the Municipal High School, Nellore West, where the appellant was admitted in 6th class. Column No. 6 of Ex.X. 1 shows that the appellant was living with his adoptive father. It also contains the signature of Venkata Subbaiah. Ex.A.13 is the certified copy of Ex.X.1 but at the instance of the defendants, Ex.X.1, the original of Ex.A. 13, was summoned. P.W. 11, the Head Master at the relevant time, spoke about Ex.X.1. He testified that Venkata Subbaiah brought the boy and when he questioned whether the boy was adopted, the answer was in the affirmative and that Venkata Subbaiah also signed in the form --Ex.X.1. In the cross-examination he said that he did not know whether one Srinivasulu is the brother of P.W. 1 but he admitted that there was one Srinivasulu who worked with him as a teacher in another school. He denied the suggestion that Ex.X.1 was inserted.
28. There are absolutely no grounds to doubt the genuineness of Ex.X.1. Although the name of the school is not mentioned in Ex.X.1, which is in a printed pro forma --presumably the same thing is used in all the municipal schools -- it bears the rubber stamp of the school. We have tested the genuineness of Ex.X.1 with reference to Exs.X.3 and X.9. Each of these documents contains two sheets -- the first sheet showing that the candidate has passed in 5th class and the second sheet about his admission in the 6th class. The serial numbers of Exs. X.1 and X.3 to X.9 are in seriatum leaving no scope for insertion of any number.
29. The signature on Ex.X. 1 was doubted by the learned Judge by observing:
"I compared this signature in Ex.X.1 with the admitted signatures in the wills, viz., Exs. B.11 B.12 and B.14. There is a marked difference in the signature between Exs. X.1 and B.11 and B.12 also. It is clear from the comparison that the signature in Ex.X.1 was not made with such an ease as was done in Exs.B.11, B.12 and B.14. Therefore, it is doubtful whether Venkata Subbaiah subscribed his signature in Ex.X.1."
We do not agree with the learned Judge that the signature on Ex.X. 1 is not that of Venkata Subbaiah. If the defendants had any doubt about its genuineness they ought to have taken steps to send it to the handwriting expert for examination and report at the time of the trial. But they did notdoso. It was only during the pendency of the first appeal, at the instance of the appellants therein, Ex.X. 1 was sent to the handwriting expert but no steps were taken to examine that expert and get his report admitted in evidence. We have compared the signature of Venkata Subbaiah on Ex.X.1 with those on Exs. B.11, B.12 and B.14. Admittedly, the signatures on Exs.B.11 B.12 and B.14 are the genuine signatures of Venkata Subbaiah. From our comparison, what appears to be fairly clear is that the signature of Venkata Subbaiah on Ex.X.1 fully tallies with his signatures on Exs. B.11 and B.12. It was only when we come to Ex.B.14 there is perceptible change in the signature for the obvious reason that Venkata Subbaiah was suffering for from the dreadful disease of consumption and he died within five weeks after appending his signature to Ex.B.14. The hand was shaky and there is a gap between the word 'Venkata' and 'Subbaiah'; the marked change in the alignment is transparent. The comment made by the learn-
ed Judge about Venkata Subbaiah's signature on Ex.X. 1 : "that it was not made with such an ease" applies more aptly to the signature on Ex.B.14 by comparing the same with Exs.B.11 and B.12 rather than to Ex.X.1. We may also mention in this context that the science of handwriting is not an exact sicence unlike the science of fingerprints. Even experts tend to commit errors in giving their opinions on the genuineness of the signatures and handwriting. Even in genuine writing, at times, the penhesitates or even stops especially when the author is under great physical or mental strain. Sometimes, it would be difficult for an expert to examine even the genuineness of different writings, each having its own individuality, but all by the same author. It requires intelligent comparison to differentiate the genuine signature from the forged one. As the author Albert S. Obsborn aptly desribes it:
"As the psychologists explain it, 'likeness and difference co-exist in all things not utterly unlike', so that intelligent comparison for the purpose of classification must always include analysis and reasoning.... A writing or a document, having in mind all the various qualities, elements, features, tendencies, variations and conditions in writings and in documents that have heretofore been discussed. A simple questioned signature should thus be investigated with all these varied qualities under consideration, and until it has thus been scrutinized a signature has not reaily been examined. "Questioned Documents" by Albert S. Osborn Second Edition, p. 238"
I Great care and caution should be exercised I especially when the court is not assisted by the evidence of an expert in deterimining the genuineness of a signature or handwriting. Even while calling experts, it is now admitted by all authorities that if one cannot get a competent man, it is better not to adduce any expert evidence at all. In the words of Albert S. Osborn:
"......if the investigation of the technical question involved in a disputed document case is not to be thorough, and there is no one present who is qualified to make scientific comparison, then it would no doubt be safer to abandon that question altogether and decide the case on, other issues. It certainly is better to have no testimony than incompetent and incorrect testimony, Albert S. Osborn, Op. Cit., p. 239."
30. It is true that there is an averment in paragraph 7 of the plaint that subsequent to the execution of Ex.B.11, will, "there were some temporary misunderstandings between the plaintiff's family and the said Venkata Subbaiah". The subsequent sentences in the plaint run as under:
"The differences between the said Venkata Subbaiah and his daughters, defendants 2 and 3 grew more serious than before. The first defendant who has been living with the said Venkata Subbaiah was in a position to dominate his will and exercise her influence over him".
The argument of the learned counsel for the respondents-defendants is that there was no evidence to show that these temporary misunderstandings disappeared between the date of Ex.B. 11, will, and the date of adoption and that Venkata Subbaiah developed affection for the appellant to such an extent as to think of adopting him. We think that this contention is not well founded. The emphasis in paragraph 7 of the plaint was more on the difference between Venkata Subbaiah and his two daughters and the dominating position of the first defendant to pressurize Venkata Subbaiah to revoke his earlier will Ex.B.11 and register another will, Ex.B.12. What transpired in the mind of Venkata Subbaiah, it is difficult to conjecture. From the available evidence, it is clear that even by the date of Ex.B.12 dated 21-11-1962, Venkata Subbaiah had aversion for his daughters and this he made explicit in the will. The appellant's adoption by Venkata Subbiah must have triggered unity among the latter's concubine (the first defendant) and daughters (D-2 and D-3) in order to eliminate the appellant from claiming any share in the property. The first defendant figuring as D.W. 2 has stated in her evidence that when she was operated on two occasions -- one at the American Hospital at Ongole and on the second occasion at Renigunta American Hospital -- the daughters of Venkata Subbaiah did not visit her and on that score, Venkata Subbaiah was very angry with them. That they were not on visiting terms at least till 1962 is borne-out by Ex.B.12, will. The first defendant's hold over Venkata Subbaiah is very clear and apparent from Ex.B.12, under which the entire property was given to her with absolute rights by Venkata Subbaiah. In the normal course of events, the first defendant would not have agreed for another will to be executed by Venkata Subbaiah whereunder considerable properties were given to the two daughters --D-2 and D-3. It was because of ex.B.12, will, it was averred in paragraph 7 of the plaint that there were misunderstandings between the plaintiff's (appellant's) family and Venkata Subbaiah because Venkata Subbaiah was under the control of the first defendant. The emphasis, as we have already stated, was more on the control the first defendant was exercising over Venkata Subbaiah rather than on the misunderstandings between Venkata Subbaiah and the appellant's family. Possibly, with a view to continue his lineage, Venkata Subbaiah thought it fit to adopt the appellant, who is none else than his nephew's son. It was this adoption that must have been the sole cause for the coming together of the first defendant and D-2 and D-3; unless all of them have joined together, in the circumstances, perhaps, they had felt that there was no possibility of succeeding to the entire estate of Venkata Subbaiah as otherwise the appellant, in his capacity of the adopted son, would have claimed the property. When the f actum of adoption was proved the absence of any evidence regarding the composition of the minor differences pales into insignificance. We may also observe in this context that in Ex.B.14, the last will and testament of Venkata Subbaiah, at page 2, line 6, there is a recital that for four years prior to that, his two daughters were affectionate towards him. Ex.B.14 was executed on, 6-10-1966; four years prior to that it takes us to 6-10-1962. But the second will, Ex.B.12, was executed on 21-12-1962 in which Venkata Subbaiah had expressed his aversion towards his daughters. This particular recital in Ex.B. 14 is inserted between the fifth and seventh lines, which is a clear indication that after the drafting of the will was completed, somebody must have raised the doubt as to how in the face of the recitals in Exs. B.11 and B.12 about the attitude of Venkata Subbaiah towards his daughters -- D-2 and D-3 the bequest in Ex.B. 14 could be supported. Although we are not going into the validity of Ex.B.14, will the finding in respect of which became final -- we cannot overlook this material circumstance. When the attempt of D-1 to D-3 was to corner the property to the entire exclusion of the appellant, it stands to reason that they had taken necessary precautions so that there was no recital in Ex.B.14 about the factum of adoption. Nothing, therefore, turns upon the argument that the absence of recitals regarding the adoption of the appellant in Ex.B.14 falsifies the case of the appellant.
31. One other argument which has been pressed into service on behalf of the respondents-defendants is that in her evidence as D.W. 1, the third defendant has stated that her son performed the obseques of Venkata Subbaiah after his death. The plaint recital is to the effect that because of the presence of D-1 to D-3 in the house of Venkata Subbaiah, the plaintiff's (appellant's) family could not go to Venkata Subbaiah during his last days. Possibly, that was the period when the appellant also was denied access to Venkata Subbiah his adoptive father. It is true there is no evidence positively that the appellant had performed the obseques of Venkata Subbaiah. But it is also doubtful whether the third defendant's son had really performed the obseques. It is customary among Hindus that no one who has parents living will perform obseques of a dead man unless he is the adopted son. When it is clear that Venkata Subbaiah did not adopt any of the sons of his two daughters, it is doubtful whether his obseques would have been performed by D-3's son. Failure on the part of the counsel for the appellant-plaintiff in the trial Court to elicit information in the cross-examination of D-3 on this aspect is not a ground to believe the assertion of D-3 that her son performed the obseques of Venkata Subbaiah. The non-examination of the purohit is not a circum-
stance in favour of the respondents defendants. From the evidence of P. W. 1, it is clear that Venkata Subbaiah called the purohit. Evidently, the appellant could not trace the whereabouts of the purohit to produce him as a witness.
32. Although the onus on the appellant was grave and serious, the same was discharged by cogent and clinching evidence -- both oral and documentary. The required standard of proof as laid down by the Privy Council and the Supreme Court in the cases referred to supra is fully present in the case on hand. On factual incorrect assumptions and wrong reasoning, the learned Judge has set aside the well considered judgment of the learned trial Judge. We, therefore, allow the letters patent appeal, set aside the judgment and decree of the learned single Judge in A.S. No. 204 of 1978 and restore the judgment and decree of the learned II Additional District Judge, Nellore in O.S. No. 21 of 1974. No costs.