Karnataka High Court
Siddaramappa And Ors. vs Smt. Gouravva on 9 December, 2003
Equivalent citations: AIR2004KANT230, ILR2004KAR3611, AIR 2004 KARNATAKA 230, 2004 AIR - KANT. H. C. R. 1023, (2004) ILR (KANT) (3) 3611, (2004) 2 HINDULR 438, (2004) 2 KCCR 981, (2004) 24 INDLD 71
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. This is a defendants appeal. For the purpose of brevity, the parties are referred to as they are referred to in the suit. The facts in brief are as under :--
2. The case of the plaintiff is, One Mallappa S/o Fakirappa Sajjan alias Tali was the propositus. He died leaving behind two sons by name Basavanneppa and Sidramappa. Those two brothers with their father constituted an undivided Hindu family. After the death of Mallappa, the brothers effected a partition of all the joint family properties. The property which fell to the share of Basavanneppa are shown in the schedule 'A' to the plaint and the property which fell to Sidramappa was shown as schedule 'B' properties. The plaintiff-Smt. Gourawa is the legally wedded wife of Basavanneppa. She halls from Bannikoppa Village of Shirhatti Taluk. Basavanneppa died on 29-8-1992. There were no issues out of the wed lock and, therefore, on the death of Basavanappa, the plaintiff succeeded to all his properties as a sole legal heir. Defendant No. 1 is the brother of Basavannappa, defendant No. 3 is the son of defendant No. 2. The plaintiff contended that her husband was ailing six months prior to his death, he was not in sound state of mind. Taking advantage of the said fact, the defendants 1 and 2 have created a deed of adoption and got it registered under which the third defendant is shown to be given in adoption to the deceased husband of the plaintiff. Basavannappa never consulted her nor asked her consent or concurrence to the adoption. By impersonation by taking some other person as Basavannappa the deed had been executed and registered. As the said adoption is contrary to the Hindu Adoption and Maintenance Act, 1956, it is not valid and legal. Subsequently, by way of an amendment the plaintiff also pleaded that her husband died intestate and was not in sound and disposing state of mind prior to six months of his death and the Will set up by the defendants is a forged and fabricated one and she also denied execution and attestation of the alleged Will set up by the defendants. As the defendants were threatening the plaintiff with her peaceful possession and enjoyment of the 'A' schedule properties, she was constrained to approach the Court below for the relief of declaration, for cancellation of the adoption deed and for cancelling the illegal entries made by the revenue authorities acting on the adoption and the alleged Will and she also prayed for restraining the defendants from obstructing the peaceful enjoyment of the plaintiff over the suit schedule 'A' property.
3. The defendants contested the said claim. Defendants 1 to 3 filed a joint written statement. Defendant No. 4 is an alienee of one of the items of the suit schedule property. They contended though plaintiff is the lawfully wedded wife of Basavannappa she was not on cordial terms with him, she did not lead a married life and Basavannappa lived at Bidarahali Village with his keep mistress and died there only in his sister's house. Plaintiff is not the heir and has not inherited the properties of the deceased Basavannappa. She has no title to the property. She was never in possession of any of the property. She is a resident of Bannikoppa. It is also pleaded that Basavannappa sold his suit house long back to defendant No. 1 and thus defendant is in possession of the house property since then. The specific stand taken by the defendants is that Basavannappa had taken in adoption defendant No. 3 Manjunath with all religious ceremonies and giving and taking on 9-7-1992 at Bellatti and has executed an adoption deed which is duly registered on 9-7-1992. Defendant No. 3 has acquired title and possession of all the properties of deceased Basavannappa and plaintiff cannot question his adoption and title. Further, it was stated that the deceased Basavannappa has executed a Will dated 9-7-1992 which has been duly attested and duly registered in favour of defendant No. 3 confirming his adoption and title and right to all properties under the said Will. So on the strength of the Will also, defendant No. 3 has acquired full title and rights to all the properties of the deceased Basavannappa. As such, the plaintiff cannot question his title. It is reiterated that the plaintiff has not at all attacked or questioned the Will made by deceased Basavannappa on 9-7-1992 and got registered also on that day. They have denied that Basavannappa was ailing six months prior to his death and he was behaving as an abnormal man i.e., as a man of unsound mind. It is asserted that Basavannappa was in sound state of mind at the time of the adoption and at the time of execution of the Will. It is specifically contended that it was not necessary to consult the plaintiff regarding adoption as obviously she was not in cordial terms and never lived with Basavannappa. The said consent was not necessary. Such impossible condition is illegal and opposed to equity and justice. The right of Basavannappa could not be curtailed at all on such account. The adoption cannot be illegal. If consent is possible, omission may affect and vitiate the adoption, otherwise it cannot. The allegation of impersonation of Basavannappa was denied. It was contended that the plaintiff is not in possession of any of the properties. The entries are lawfully made and it cannot be set aside.
4. On the aforesaid pleadings the Court below framed the following issues :--
(1) does plaintiff prove that her husband Basavanneppa was of unsound mind, as contended in para 6 of the plaint?
(2) Does she further prove that she had not consented to the adoption of defendant No. 3 by Basavannappa?
(3) Does she, as such prove that adoption of defendant No. 3 is illegal, null and void, as asserted?
(4) If so, does she prove to have become absolute owner of the suit properties mentioned in Schedule A?
(5) Does she prove her possession over the suit properties?
(6) If so, does she prove that defendants have interfered in her purported possession, as contended?
(7) Does defendant No. 1 prove to have purchased the suit house from Basavanneppa ?
(8) If so, does he prove his possession over the suit house?
(9) Does defendant No. 3 prove the Will dated 9-7-1992 purportedly executed by Basavanneppa in his favour in respect of the suit properties?
5. In support of her case the plaintiff examined herself as PW 1 and produced documents P1 to 11. On behalf of the defendant totally 8 witnesses were examined including defendants 2 and 3 and got marked adoption deed Ex. D1, Will as Ex. D2 and Ex. D3-a photograph.
6. The learned trial Judge on consideration of the pleadings, oral and documentary evidence produced has recorded a finding that the plaintiff has failed to prove that Basavannappa was of unsound mind. It was held that the plaintiff's consent was not obtained for adoption. Therefore, the adoption set up by the defendant is illegal and the registered adoption deed is null and void. The plaintiff has established that on the death of her husband Basavannappa, she has inherited the entire properties and thus she has become the absolute owner of the properties. However, the material on record shows that the plaintiff is not in possession of any of the properties and it is the defendants who are in possession. As she is not in possession, the defendant's interfering with her possession would not arise. The first defendant has failed to establish that he has purchased the house property which has fallen to the share of Basavannappa by a registered sale deed as contended by him but he has proved his possession over the said house; The Will set up by the defendants is not proved and, therefore, the Court below has proceeded to grant the relief of declaration sought for and granted the relief of possession and injunction and declared that the Will and adoption set up are illegal and void.
7. Assailing the said judgment and decree of the trial Court, the defendants have preferred this first Appeal. Learned senior counsel, Sri V. Tarakaram, for the appellant contended, once the deed of adoption is registered in accordance with law under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter for short referred to as 'the Act'), a statutory presumption do arise to the effect that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved and, therefore, when the defendants have proved the registered adoption deed, examined the attesting witnesses, examined the natural father and natural mother who gave the child in adoption the adoption stands proved. Though admittedly the consent of the plaintiff, the adoptive mother is not taken, having regard to the facts of this case and the strained relationship between the plaintiff and her husband, the consent of the plaintiff was impossible and therefore not necessary. Therefore, under those circumstances, it is permissible for a Hindu to adopt a child without the consent of his wife. Therefore, he submits seen from any angle the finding recorded by the Court below regarding adoption is illegal and requires to be set aside.
8. In so far as the Will set up by the defendants is concerned, the learned senior Counsel submits the Will is produced before the Court, it is not a compulsory registerable document and, therefore, non registration of the document would not invalidate the will; Three attesting witnesses to the Will have been examined and, therefore, Will stands proved. Secondly he contended though in the Will the testator has not provided to his wife and even if it is held initially a suspicious circumstance do exist the same is satisfactorily explained by leading cogent evidence on record to the effect that the deceased testator and the plaintiff never lived together, they were not on good terms which is a sufficient explanation for disinheriting the wife. Lastly, it was contended even if the adoption fails still the bequest stands because under the Will testator gave his properties to the third defendant because he happened to be the brother's son, towards him he had love and affection and he had intention to give his entire property to him and the fact that he was also taken in adoption is incidental and, therefore, relying on two judgments, one of the Andhra Pradesh High Court and another of the Supreme Court he contends a reading of the Will makes it very clear that the adoption was in favour of third defendant and in that view of the matter the finding of the Court below requires to be set aside.
9. Per contra, the learned counsel for the plaintiff-respondent submits under Section 16 of the Act a presumption would arise only if the requirement of law as contained in Sections 6 and 7 has been complied with. In the instant case admittedly the consent of the wife, the plaintiff, who was very much living on the date of adoption is not taken and, therefore, no presumption of law would arise under Section 16. Secondly he contended the evidence on record discloses that this theory of adoption is a make believe one. If the version of the witnesses on behalf of the defendant could be believed, the so called adoption ceremony according to some started at 9 O' clock, according to some started at 12 O' clock and according to DW 4 it ended at 5.00 p.m. Whereas according to the scribe of the adoption deed he saw the defendants in Shirahatti Taluk Headquarters at 9.30 to 10 a.m. and the Will was written at about 11 O' dock and got registered. The scribe has categorically stated no adoption ceremony took place the day the Will was written and the so called oral evidence adduced does not establish the requirements of a valid adoption. In that view of the matter, the finding recorded by the Court below that adoption is invalid and the deed of adoption is void is in accordance with law and, therefore, do not call for any interference.
10. In so far as the validity of the Will is concerned he submits a reading of the Will makes it very clear from the recitals therein that on the day the Will was alleged to have been executed by the deceased testator his health was not sound; the said Will is attested by eight witnesses; the attesting witness DW 2 has categorically stated that when he saw the executant sign the Will; he and only two other witnesses were present whereas the Will document contains the signature of eight persons; Two persons referred to by him have been not examined whereas they have examined one Mallangowda who in his evidence regarding due attestation has stated that after testator signed the document it is he who signed the document and he does not refer to any other attesting witnesses attesting the document. In view of this contradictory evidence by the so called two witnesses the due attestation of the Will is not proved. It is also contended a reading of the Will makes it very clear that the property is bequeathed in favour of the third defendant by the deceased testator only because he is taken in adoption and if adoption fails, the bequest also fails. Thirdly it was contended if the evidence of this witness cannot be believed in so far as adoption ceremony and the execution of the document by Basavannappa, their evidence cannot prove the Will also. Fourthly he contended admittedly the testator had his wife living on the day of the alleged Will. The wife has been disinherited. In view of the law declared by the Supreme Court when once a wife is disinherited a suspicious circumstance do exist and in the absence of proper explanation being given explaining the said suspicious circumstance it cannot be acted upon. He submits the material on record does not show any cause for disinheriting the plaintiff. The contention of the other side that they were not on good terms, the plaintiff was living separately, is not borne out from the record. On the contrary Exhibits P11 and P10 clearly show the case put forth by the defendant is far from truth and, therefore, he submits the impugned judgment and decree of the Court below is based on evidence on record and therefore it does not call for any interference.
11. In view of the aforesaid facts and the rival contentions, the points that arise for my consideration in this appeal arenas under :--
(i) Whether the defendants prove the adoption pleaded by them and the registered adoption deed on which reliance is placed is valid and legal?
(ii) Whether the Will set up by the defendants is proved and under the Will the testator bequeathed the property in favour of the third defendant because of his love and affection towards him or because of the fact that he was his adopted son?
12. Section 6 of the Act which deals with requisites of a valid adoption reads as under :--
"6. Requisites of a valid adoption.-- No adoption shall be valid unless --
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in the Chapter."
Clause (iv) of Section 6 makes it very clear an adoption to be made it should satisfy the requirements of Clause (i) to (iii) and also other conditions mentioned in the Chapter.
13. Section 7 of the Act deals with capacity of a male Hindu to take in adoption which should also be complied with in order to have a valid adoption and it reads as under :--
"7. Capacity of a male Hindu to take in adoption.--Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
Explanation.-- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso."
14. A reading of the aforesaid Section 7 makes it very clear that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But, the proviso to that section makes it very clear if that male has a wife living, shall not adopt except with the consent of his wife; unless the wife (a) has completely and finally renounced the world (b) has ceased to be a Hindu or (c) has been declared by a Court of competent jurisdiction to be of unsound mind. Therefore, the proviso makes it very clear under what circumstances in spite of a wife living a male Hindu is competent to adopt a child without her consent. Having regard to the language employed in the said proviso, the said proviso is exhaustive. The law does not provide for any other contingency under which a male Hindu can adopt a child without the consent of his wife living at the time of adoption. When the circumstances under which a consent of wife is not necessary are specified, they cannot be added to. To do that would be adding words to the statute. More over the words in the proviso that "he shall not adopt except with the consent of his wife" is emphatic and renders the provision mandatory and should be obeyed if the adoption to be lawful. The reason is obvious. Adoption is the admission of a stranger by birth to the privileges of a child as if the said child was born to the adoptive parents. With the adoption the child takes birth to the adoptive parents and acquires interest in the property belonging to the adoptive parents. Thus, the adoption affects the rights of a Hindu wife in the property of her husband. When a wife gives birth to a child whether she likes the child or not, law recognizes her as the mother of the said child and the said child as the son or daughter of the said wife. For recognizing this relationship consent, concurrence of the mother is not required. But, if a stranger by birth has to be conferred with the privileges of a child of the said wife the consent of the wife is a must. No child could be foisted against such a wife by her husband without her consent and against her wish. In other words she cannot be compelled to recognize a stranger by birth as her child and she as the mother of the said child. More so, when such adoption affects her absolute right to the property of her husband. Therefore, having regard to the object sought to be achieved by the Act and the underlining principle of equality sought to be achieved by the passing of the Act any other interpretation would be contrary to the letter and spirit of the enactment.
15. The learned counsel relying on judgment of the Supreme Court in the case of Mohammed Gazi v. State of Madhya Pradesh reported in (2000) 4 SCC 342 : (AIR 2000 SC 1806) relying on the maxim 'Lex non cogit ad impossibilia' i.e., the law does not compel a man to do what he cannot possibly perform, it was argued that when the relationship of the husband and the wife is strained and the wife refuses to grant the consent sought for, it is impossible to get her consent and what a man cannot possibly perform cannot be insisted upon. For the application of the doctrine, the first and the foremost requirement is that it should be pleaded that though law requires her consent under the circumstances the party is unable to obtain the necessary consent and, therefore, that should not be insisted upon. In the instant case, the stand taken is consent is not necessary. There is no plea, there is no evidence to show whether the deceased husband of the plaintiff did request the plaintiff to give her consent and that plaintiff refused and, therefore, under those circumstances he was compelled to take in adoption without her consent. The only material placed on record is that they were not on good terms and they were living separately. To demolish the case of the defendant, the plaintiff has produced Exs. P10 and P11. Ex. P10 is the voter's list of Karnataka Legislative Assembly for the year 1988. It shows the name of the plaintiff and her husband and it also shows that they are living at Bellatti Village together under the same roof. Ex. P11 is the wedding invitation card which is in the name of the plaintiff and her husband as the persons who are inviting the invitees. This document is dated 31-1-1982. The said invitation was issued in connection with the marriage of the second defendant whose son is the alleged adopted son. These two documents are not disputed. Therefore, from these two documents it could be reasonably inferred in 1982 the plaintiff and her deceased husband being the eldest in the family had issued the invitation card in their name inviting the people for the marriage of the second defendant. It is followed by Ex. P10 which is a voter's list showing that both these persons were residing together in the year 1988 in Bellatti village., i.e. four years prior to the date of the alleged adoption. Under these circumstances, the said documents with other attendant circumstances show that there is no substance in the contention of the defendants that the plaintiff and her deceased husband had a strained relationship and they were not living together. If that is so, when no request was made to the plaintiff and when her consent was not sought for, it cannot be said that it is impossible to have her consent which enabled the deceased husband to go ahead with the adoption without her consent.
16. Therefore, I am of the view having regard to the admitted facts of this case that when the plaintiff's consent was not obtained by her husband at the time of adoption, the adoption is ab initio void and non est. Section 16 of the Act gives rise to an initial presumption. But, it is a rebuttable presumption. In the instant case when it is not in dispute that the consent of the plaintiff was not obtained, Clause (iv) of the Section 6 is not complied with, the initial presumption in favour of the adopted son stands rebutted and having regard to the language employed in Section 16 itself, the adoption stands not proved.
17. Even on merits, I have gone through the evidence of the witnesses who have spoken about the factum of adoption. The first witness of the defendants who has spoken about the factum of adoption is DW1, the second defendant in the case. According to his evidence when Basavannappa requested him to give his son in adoption he gave the child in adoption in his house. The adoption was given after performing the ceremony and also people were fed on that day. It is only after the said ceremonies they went to Shirahatti for execution of the adoption deed. In examination in chief he has stated that the ceremonies of adoption have taken place in Bellatti Village where his house is situated. Whereas in the cross examination he has stated that the ceremonies of adoption took place in Shirahatti Village. The ceremony was at 11 a.m. and it took 15 to 20 minutes. He has categorically stated in his evidence that he advised Basavannappa to invite Gowravva for the said ceremony but Basavannappa refused. He admits that plaintiff was not requested. Having said that in the further cross-examination which was done on a different day he states that he does not know what are the ceremonies to be performed for performing an adoption ceremony. Only Basavannappa knew it; Even his wife does not know anything about it. The ceremony was over at 11 a.m. The deed of adoption was completed at 11 a.m. as well as a deed of Will.
18. DW2, another witness, who has been examined to prove the factum of adoption states that four persons were invited at the time of adoption ceremony; He also had gone there; The ceremony took place at Bellatfi in Basavannappa's house. The adoption ceremony commenced at 12.00 noon and it took about 2 to 3 hours and it was over by 4.00 P.M. It is thereafter they went to Shirahatti, got the adoption deed written and registered the same. Though he was present at the time of so called adoption, he has not spoken about the ceremony performed or the manner in which the adoption took place. Then we have the evidence of DW3, the natural mother. Though her husband has given evidence that she does not know any ceremony regarding adoption, she has made an attempt to state that Basavannappa requested her and her husband to give the child in adoption, they agreed, elders completed the ceremony. Then Basavannappa took the child on his lap and then he put some sugar in his mouth saying that he is his adopted son. Thereafter, all of them went to Shirahatti to get the deed registered. When she was confronted with P11 she admits the same. She has stated that the adoption commenced at 9 or 10 a.m. in the morning it went on for an hour.
19. DW4, another witness to the adoption also says four persons were present at the time of adoption. The second defendant and his wife gave third defendant in their hand, sugar was put in the mouth of the child. He admits that Gourawa was not present at the time of adoption and no attempt was made to secure her presence. It was at 3 O' clock the adoption ceremony was over. Again he says the ceremonies went on up to 5 O' clock, but, he says by 12 O' clock in the morning he had gone to Avalangalagudi and he was there till 5 O' clock. Then, we have the evidence of DW 5 who has spoken about the talks of adoption who appears to have gone to the defendants at 10 or 11 O' clock in the morning. Thereafter, he pleads ignorance on all material questions.
20. DW6 is the document writer who has written the adoption deed. He says it is Basavannappa who gave him the necessary instructions and he wrote the document according to the instructions. At the time of writing this document the natural father and mother of the adopted child were present. On that day Basavannappa's wife was not present, he was not knowing whether Basavannappa's wife was alive or not on that day. He had enquired about her; He did inform them that her presence is necessary. For that Basavannappa replied that his wife is not with him and she has nothing to do with this adoption; He was not knowing whether there was any divorce between them. Basavannappa told him that he had nothing to do with his wife. He saw all the people at 9.30, 10 a.m. at Shirahatti. He has not seen any adoption ceremony on that day. Basavannappa did not show him any papers. He prepared some notes and he wrote the document on the basis of instructions given to him by Basavannappa. As Basavannappa went on giving instructions he went on writing the document. Basavanappa told him that the ceremonies have been performed in the village. He did not find out on what day the said ceremonies were done.
21. DW7 is also examined to speak about the adoption. He states that he was present at the time of adoption; adoption was done in the house of Basavannappa. Thereafter, all of them went to Shirahatti in a tempo and got the document registered; He went to Basavannappa's house at about 8 or 9 a.m. in the morning. The function went in his house throughout the day; Who were all present at that time he is unable to say; The child was put on the lap of Basavanappa and some sugar was put in his mouth; Except that nothing else has happened.
22. Therefore, a reading of the aforesaid evidence makes it very clear though everybody speaks about a ceremony having been conducted on that day what is the nature of the ceremony is not forthcoming; Nobody is able to say who were all present at the time of the so called ceremony. According to the witnesses the ceremony started at 9 a.m. in the morning and it went on throughout the day and it ended at 5.00 p.m. and it is after the ceremony they have gone to Shirahatti in a tempo and there the deed is written and registered. But, the scribe has stated that they approached him in the morning at 9.30 or 10 a.m. and he wrote the document and got it registered and on that day on adoption ceremony took place. Therefore, the aforesaid evidence on record which bristles in inconsistencies clearly casts a doubt on the case set up by the defendants. The learned trial Judge on appreciation of this material has rightly come to the conclusion not only that the adoption set up is invalid as it does not comply with the legal requirement as contemplated under Section 7 of the Act, no adoption ceremony as required has taken place. In view of the aforesaid evidence on record, I do not find any good ground to differ from the finding recorded by the trial Judge on the question of adoption.
23. Re. Point No. 2 :-- When once the adoption is held to be invalid, the plaintiff as a legally wedded wife of the deceased Basavannappa is entitled to the entire 'A' schedule property. The defendants contend even though the adoption fails, in view of the Will executed by the deceased Basavannappa in favour of third defendant on 9-7-1992, the third defendant has become the absolute owner in possession of the entire schedule property and the plaintiff has no right to the same. Therefore, it is necessary to find out whether the Will propounded by the defendants is proved and as a consequence of that the third defendant has become the owner of the property.
24. The plaintiff on coming to know of the aforesaid defence has in the plaint in categorical terms at paragraph 6 (a) has contended that her husband died intestate; He was not in sound and disposing state of mind for six months prior to his death and the alleged Will set up by defendants is unnatural and it is forged and fabricated and she denies the execution and attestation of the alleged Will. Therefore, when the defendants rely on this Will dated 9-7-1992 the entire burden of proving the same is on them. In this context it is relevant to note that the alleged Will came into existence on 9-7-1992 and the testator died on 29-8 1992 roughly within forty five days from the alleged Will. The attack to this Will by the plaintiff is three fold. Firstly, it is contended the Will is not duly executed and it does not contain the signature of her deceased husband. Secondly it is contended as she has been completely disinherited under the Will, a suspicious circumstance do exist prima facie and the defendants have not placed any satisfactory evidence on record to explain the said suspicious circumstance. Lastly it was contended under the Will the property is bequeathed to the third defendant because he was the adopted son. If the adoption falls then the bequest on the ground that he is the adopted son also fails and, therefore, the plaintiff contends seen from any angle, the Will set up by the defendants cannot take away her right to the property in dispute. Therefore, in view of the specific stand taken by the plaintiff it is necessary for the defendants not only to prove the due execution of the Will, remove the suspicious circumstance and then they have to show to the Court that the Will bequeathed the property in favour of the third defendant de hors the fact that the third defendant is the adopted son.
25. In order to prove the Will the defendants have examined several witnesses of whom three are said to be the attesting witnesses. The first witness who speaks about the due execution of the Will as an attesting witness is DW2 one Venkanna. He has stated in his evidence in chief that after the writing of the adoption deed the deceased testator asked the scribe to, write the Will and the scribe wrote the Will according to the instructions of the testator. Thereafter, he wrote the same and after that the testator affixed his signature and he has identified the said signature as Ex. 2 (A) and he has also identified the signature of the scribe as Ex. 2 (B). But, it is interesting to note in examination in chief the said witness states that when the Will was written and the testator signed the Will he and one D.H. Patil and one Basavannappa Angadi were present. He has identitied the signature in the said document as 2 (C) and D. H. Patil's signature as 2 (D), Basavannappa's signature as 3 (E), one Erappa Nanjannavar's signature as 2 (F). Shankaragowda Patil as 2 (G) and Totappa as 2 (H). Therefore, that evidence makes it very clear that apart from two persons whose names he has mentioned, other persons who have affixed the signature on the Will were not present at the time of writing of the Will and the testator signing the Will. It is relevant to note at this point the Will has got eight attesting witnesses. In the cross-examination he has stated a rough Will was prepared before Ex. D2 was executed and according to him the testator has signed at three places on the Will. If we look at Ex. D2, the signature of this witness finds a place at Sl. No. 6 and the other two persons whom he has referred to examination in chief are at places 1 and 2 and if his evidence is to be believed it does not tally with the manner in which the alleged attesting witnesses have signed the document.
26. The defendants have examined DW 7 Shankaragowda Channbasanagouda Mallagowdar who is another attesting witness to the said Will. According to this witness after the scribe of the Will read over the contents of the Will testator affixed his signature to the Will. According to him after the testator affixed his signature he affixed his signature and he identifies as at 2 (G). He has not referred to the presence of DW 2 or to any other witness at the time of writing of the Will or the testator affixing his signature to the said Will. He is unable to state who were all the persons present at the time of writing of the document. According to him, the scribe took the instructions from Basavannappa and went on writing the Will. As number of persons were there he was sitting outside. He does not know how the document was written. According to him after the registration of the adoption deed the Will came to be written. He is unable to say at what time the Will was written. He states that the Will is not registered. He admits that Basavannappa was not keeping good health for a period of one year prior to his death. He pleads his ignorance to a suggestion whether the testator was aware of what he was doing. If this witness is to be believed his signature is found at Sl. No. 6 and if he is supposed to have affixed the signature after the testator it is not forthcoming how the three signatures have come immediately after the alleged signature of the testator. DW 4 another attesting witness to the Will namely Totappa Basappa Ullagaddi has categorically stated in cross examination that in his presence no one else has attested the Will. According to him no corrections were made in the Will. In addition to that we have the evidence of DW1, the father of the adoptive child who has categorically stated that he was present at the time of writing of the Will. He was present both at the time of the wilting the adoption deed as well as the Will. In other words he has taken an active part in writing of these documents and getting the adoption deed registered. As the beneficiary under the Will is a minor and he is the son of DW 1, the second defendant in the case who admittedly was present at the time of writing of the Will and has taken an active part, it is for him to explain his conduct. The Will is marked as Ex. D2 in this case. In order to find out whether the material evidence placed on record, in particular the above evidence referred to me whether it can be said that the Will has been duly executed, I have gone through the Will. When DW 2 has categorically stated that the testator affixed his signature at three places in the Will, a perusal of the Will shows his signature is found only in the last page above the signature of the attesting witnesses. No signature is found in the first, second and third pages of the Will. Though DW 7 has stated that the scribe went on writing the Will as per the instructions of Basavannappa without preparing a draft Will, the scribe who has written the Will has categorically stated that first he prepared a draft of the Will and thereafter Ex. D2 was written. The recital in the Will clearly makes it certain that the testator was not keeping good health and he was suffering from asthma. DW 2 in categorical terms has stated the said Will was written and executed by the testator in his presence and in the presence of only two persons, namely Paul and Shivappa, whereas the will contains 8 signatures as that of the attesting witnesses. DW 2 has not stated that DW 7, another attesting witness was present at the time when the testator affixed his signature. Similarly, in the evidence DW 7 makes no reference to DW 2 or to any other witnesses who have attested the Will. On the contrary it is his specific case immediately after the testator affixed his signature, he signed. His signature is found at Sl. No. 4. He does not make reference to persons who have signed at 1, 2 and 3. As referred to, while answering point No. 1 serious doubt arises regarding the time at which these documents came to be written. If the evidence of the witnesses is to be believed the adoption ceremony went up to 5 O' clock at Bellatti Village and it is only there after the completion of the ceremony they have come to shirahatti, the headquarters where the Taluk Office of the Registrar is situate. They got the Will written and got the document registered. When the evidence of these witnesses regarding the adoption and execution of the adoption deed has been rejected this Will which is a document which has come into existence contemporaneous with the deed of adoption in the light of the aforesaid discrepancies in the evidence does not stand the test of judicial scrutiny. Therefore, when the Court below on a proper appreciation of the material evidence on record has come to the conclusion that the Will is not duly executed. I do not find any other circumstance which justifies to take a different view as that of the trial Court. Therefore, it is clear that the evidence of none of these witnesses could be believed or is helpful regarding due execution of the Will.
27. Even assuming that the evidence of DW 2, DW 4 and DW 7 who are the attesting witnesses who have spoken about the writing of the Will, affixing the signature of the testator on the Will and thereafter they affixing the signature on the Will proves the execution of the Will. A reading of the Will makes it very clear that the testator has disinherited completely his lawfully wedded wife, namely the plaintiff. It is in that context the plaintiff contends once the wife is disinherited a suspicious circumstance exists regarding due execution of the Will and it is for the propounder of the Will to satisfactorily explain that suspicious circumstance. In this regard, the learned counsel for the plaintiff brought to my notice three judgments of the Supreme Court. The first judgment is in the case of Kalyan Singh v. Smt. Chhoti where the Supreme Court while dealing with the failure of the plaintiff to remove the suspicious circumstance by placing satisfactory material on record has held as under :--
"*(B) A will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
The Will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife could be said to be unnatural. It casts a serious doubt on genuineness of the Will. The Will has not been produced for very many years before the Court or public authorities even though there were occasions to produce it for asserting plaintiffs title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. Therefore, the conclusion that the Will was not genuine was proper."
28. Again the Supreme Court in the case of Ram Piari v. Bhagwant dealing with suspicious circumstances has held as under :--
"Where the testator, a father executed a Will bequeathing all his property in favour of sons of one daughter and disinherited the other daughter who had no sore or sour relations with testator and it was found that even though the testator could sign yet he put his thumb mark on Will and the professional scribe fetched by beneficiary's father admitted that when he reached beneficiary's residence where the Will was executed he found testator covered with guilt with whom he did not talk nor enquire about his health, the finding as to genuineness of Will recorded by the Court by erroneous application of principle of law could be interfered with under Article 136. Anxiety in village to protect landed property or agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts failed to be alive to it then their orders cannot be said to be beyond review."
29. The Supreme Court in the case of Smt. Indu Bala Bose v. Manindra Chandra Bose has held as under :--
"The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improvable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. if the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might by unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."
30. Therefore, the law on the point is well settled. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, dispositions made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances or there might be other factors in the Will to show that the testator's mind was not free. When under the Will the wife and children are disinherited it casts a serious doubt on the genuineness of the Will. It would be unnatural. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will it confers a substantial benefit to him or to his kith and kin, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. Therefore, if any of the aforesaid circumstances exists in a given case it could be safely said a suspicious circumstance exists and the pro-pounder is required to remove the doubts by clear and satisfactory evidence.
31. In the instant case, the legally wedded wife has been disinherited by the testator and the Will does not disclose the reasons for such disinheritance. The averments in the Will clearly shows that the testator was not in sound state of health and that he was suffering from asthma. DW 7, one of the witnesses who is the attesting witness to the Will in categorical terms has stated that the health of the testator was not well one year prior to the date of Will. Admittedly, the testator died 45 days after the execution of the Will. The father of the beneficiary, namely the second defendant who also has propounded the Will has taken active part in preparation of the Will and its alleged execution in addition to preparation and registration of another contemporaneous document, namely the adoption deed. One of the attempt made by the propounder of the Will to explain the circumstance is the testator's relationship with his wife was not cordial. They were not living together from the beginning and the testator had a kept mistress. If the testator had a kept mistress as alleged by the defendants admittedly the testator has made no provisions for the kept mistress let alone to his legally wedded wife. It is on record in 1982 when the second defendant, the father of the adoptive child was married, the invitation card for the said marriage, Ex. P11 was printed in the name of the testator and the plaintiff his legally wedded wife. Ex. P10 produced in the case which is the voters list of the year 1988 shows the name of the husband and the wife as the residents of Bellatti village. This coupled with the fact that several witnesses have spoken to the fact that they want to know why the plaintiff was not brought at the time of the so-called adoption ceremony. Those witnesses have not spoken to the so-called strained relationship between the plaintiff and her husband. The fact remains though they were married for 40 years, the plaintiff did not putforth any claim for maintenance or share in property against her husband nor is there any material to show on record that the husband did make any provision for her living. All this only go to show that the case put-forth by the defendants that the relationship of the husband and wife is strained is not established from the material on record. On the contrary, the material on record shows at any rate they were shown to be residing together; They were shown to be one when it came to making any representation to the public. Therefore, as it is the only ground on which the defendants claim that Basavanappa disinherited his legally wedded wife, they have miserably failed to remove the suspicious circumstance.
32. It is relevant to notice at this stage normally when the requirement of law is two attesting witnesses are required for its validity, by way of abundant precaution if one or two more witnesses are there it is quite understandable. In the instant case eight persons have attested the document. It only shows the anxiety of the propounders of the Will to make sure that by attestation by eight persons they would be able to contend before the Court that the Will which they have propounded is valid and legal. But unfortunately the evidence Of the three witnesses instead of proving the Will destroys the execution of the Will. Similarly, the adoption is attested by 11 persons. The evidence of DW 4 in examination in chief where he has stated that Basavanappa executed the Will with the intention that the property should go to the third defendant alone and not to go to any other person makes it clear that whether that was the intention of the testator or not, it was the intention of the pro-pounders of the Will, to see that the property does not go to the plaintiff or if the case of the defendants is to be believed to the kept mistress of the deceased testator. If the testator who had lived a full life did not chose to disinherit his wife or did not have intention to give to his kept mistress and if his intention was to give to his brother's son or brother's grand son he would not have waited till 45 days prior to his death. He could have put his intention not only in clear terms in writing but he could have said what his intention was very much earlier. The evidence on record shows that he died 45 days after the making of the Will and the recitals in the Will itself show that his health was not well one year prior to the execution of the Will, Under these circumstances, it cannot be said that the testator was of sound state of mind on the day the alleged document came to be executed.
33. Under those circumstances, the finding of the Court below that the propounders have failed to explain the suspicious circumstances with any cogent evidence and as such the Will is not proved cannot be found fault with.
34. The learned senior counsel appearing for the appellants also contended even if the adoption fails that does not necessarily mean the third defendant should be deprived of the properties under the Will if the Will could stand independent of the adoption. In view of the finding recorded by me above saying the execution of the Will is not proved and the suspicious circumstance is not explained, the question of the Will standing independent of the adoption would not arise for consideration. However, as the arguments were canvassed on the said point, I am considering the said question also. The learned counsel contended in support of his contention that a reading of the Will makes it very clear that the property was bequeathed in favour of the third defendant not as an adopted son but because it was given to him as he was his brother's son and he had no issues and the testator did not want his property to go to any other person. Therefore, he contends the fact that the beneficiary is the adopted child is only incidental and that was not the cause for making the Will. In support of his contention he relied on a judgment of the A. P. High Court in the case of Rekapalli Satyanarayanmurthy v. Rekapalli Ramanna reported in (1958) 2 AWR 50. After reviewing the entire case law on the point, Chief Justice K. Subba Rao, as he then was, has held as under :--
"The fundamental principle of construction of the terms of Will, just like any other document, is that the intention of the testator should be gathered from the language of the Will, and the surrounding circumstances. The question that falls to be decided in each case is whether the designation of a legatee as adopted son is descriptive of the person to take under the Will, or whether the adoption is the reason or the motive or the condition of the gift. Though decided cases supply a guide and a correct perspective for construing a Will, a decision necessarily turns upon the peculiar wording of a particular will and the circumstances surrounding the execution of the Will."
35. On the same question he relied on a judgment of the Supreme Court in the case of Ranganathan Chettiar v. Periakaruppan Chettiar, wherein it has been held as under (Para 7):--
"The question as to whether a disposition is to the person intended in a will as a persona designata or by reason of his filling a particular legal status which turns out to be invalid is one of some difficulty. The question that arises in individual cases must ultimately depend on its own facts and the terms of the particular document containing the disposition. The question in all such cases is whether the gift of the property by the testator to a person who is referred to as having been adopted is one which is dependent on whether all the requisites of a valid adoption have been complied with or whether it is to a designated person notwithstanding that it was desired and expected that the requisites for a valid adoption were complied with. The distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances."
36. Therefore, from the aforesaid two decisions it becomes very clear in order to find out the intention of the testator what is to be seen is the intention as expressed in the words which is contained in the Will and the surrounding circumstances. If the intention of the testator is to bequeath the property to a person designated then notwithstanding the failure on the part of the propounder of the Will to prove the description of that person the Will stands. Merely because the description is not satisfied the bequest do not fail. In the case of a bequest to an adopted son if the bequest is because of the adoption and the adoption fails, the bequest fails. If the bequest is for person designated and incidentally he happens to be an adopted son and in such circumstances even if the adoption fails, bequest stands and property is vested in the person who is designated under the Will.
37. In the background of these legal principles if we look into the facts of the case admittedly the adoption deed and the Will have come into existence contemporaneously. In the adoption deed the intention of the testator is clearly mentioned. The testator has stated as in Dharma Shastra if a person dies without a son he would not get moksha and in order to have continuity of his family, he decided to take the third defendant in adoption and his natural father and mother have agreed to give the third defendant in adoption. If this is the intention of the testator in adopting a child, namely to get moksha, when the adoption falls he had no other intention of giving the property to the said person. The learned senior Counsel relying on the averments in the Will where it has been stated that as the adopted child is the testator's brother's son and in fact he would be his grandson and he has brought up in his own house and he has got love and affection, the bequest is made in his favour, contends that the Will is to the designated person not to the description of the person. If the Will contains only that much of the recital probably there was some force in the contention of the learned senior counsel. But, it does not stop there. The recital further states that as no successor is there and therefore I have taken the child in adoption in the presence of elders of the family and therefore for your benefit I am giving this property. The learned counsel also relied on the evidence of few witnesses and in particular the evidence of his father where in categorical terms the purpose of execution of the Will is stated, namely even in the event of adoption fails the Will was executed contemporaneously with the deed of adoption to see that the third defendant gets the property. Therefore, the recitals in these two documents coupled with the evidence on record clearly establishes the intention of the testator. He was giving his entire property to the adopted son because of adoption with the fond hope that he would get moksha and his family is continuing. When once the adoption fails and when the purpose of giving this property namely the moksha or the continuation of the family is not achieved, it cannot be said that the Will would stand notwithstanding the invalidity of the adoption and the adoption deed. Therefore, in view of the law declared by the Supreme Court and various Courts as aforesaid and having regard to the facts of this case it is clear the description of the legatee as the adopted son is the reason or the motive for bequest and when the adoption fails, the Will does not stand and third defendant would not get the property under the Will independent of the adoption. In that view of the matter, I do not find any good ground to differ from the finding recorded by the trial Judge on the validity and execution of the Will propounded by the defendants. In the circumstances, I do not find any merit in this appeal. According, the appeal is dismissed.
Parties to bear their own costs.