Two wills ten days apart both fail: Andhra HC upholds equal thirds in 1987 Eluru partition suit

Justice A. Hari Haranadha Sarma held that neither the will for the plaintiff nor the will for the adopted son was proved, upheld the 1960 adoption as valid but not as a settlement of all the property, and confirmed the 2002 decree of three equal shares.

Two wills, ten days apart, each said to carry the signature of the same widow, each leaving her estate to a different claimant. On 11 November the Andhra Pradesh High Court at Amaravati held that neither was proved, and confirmed a 2002 decree dividing an Eluru family’s land and movables into three equal shares.

Justice A. Hari Haranadha Sarma dismissed both the appeal of M. Venkata Somasekhara Rao and the cross-objections of the original plaintiff, T. Suseela. He held that Mr Rao was validly adopted in 1960, but that the adoption deed gave him no exclusive title to the property.

The judgment was reserved on 11 August 2026 and is marked reportable. The suit it ends was filed in 1987, and the appeal has been pending since 2003.

A grandson adopted as a son

Maddula Subbarao of Gundugolanu village, West Godavari district, died on 10 October 1985. His wife, Sarvalakshmi, died on 13 April 1987. They had two daughters and no son: Ms Suseela, the plaintiff, and Chakka Kusuma Kumari, who died in June 1985.

The appellant, Mr Rao, is Kusuma Kumari’s son. He says the couple adopted him on 6 March 1960, with a deed of adoption, and brought him up as their son. Ms Suseela said he was only raised in the house for assistance and was neither son nor adopted son.

Her suit, O.S. No. 221 of 1987 before the Additional Senior Civil Judge, Eluru, sought partition of the ‘A’ and ‘B’ schedule properties, which were the father’s land, houses and movables. It also sought possession of the ‘C’ and ‘D’ schedule properties, which were Sarvalakshmi’s own.

Two-thirds claimed under the mother’s will

The arithmetic of her claim rested on a will. On her case, the father’s property split into three: her share, her late sister’s branch and her mother’s. A will dated 29 March 1987, she said, left her mother’s share and all her mother’s own property to her, which made two-thirds.

Mr Rao pleaded that the adoption deed settled everything on him. He also relied on a will of 8 April 1987 by his adoptive mother, leaving her own property to him. His natural father, who was the sister’s widower, supported the adoption, and his written statement was adopted by several of Mr Rao’s siblings.

What the trial court decreed in 2002

The trial court, by a common judgment of 16 December 2002 that also disposed of a tenant’s injunction suit, O.S. No. 48 of 1994, believed the adoption. It relied on printed invitations, school and transfer certificates and the deed itself, and found it probable that a couple with no son would adopt one.

It disbelieved both wills. It held that Subbarao and Sarvalakshmi died intestate and that three branches took one-third each: the plaintiff, Mr Rao as adopted son, and the heirs of Kusuma Kumari. It added mesne profits, refused the claim for jewellery for want of evidence, and made no order on costs.

In the tenant’s suit the trial court found his agreement did not inspire confidence and appeared created in collusion. It was dismissed, and no appeal was filed.

An appeal from both sides

Mr Rao appealed under Section 96 of the Code of Civil Procedure, and Ms Suseela filed cross-objections. More than two dozen interlocutory applications accumulated over the years, among them one to condone a delay of 9,169 days in setting aside an abatement in the cross-objections. The final order closes whatever remained pending.

Mr Aravala Sreenivasa Rao appeared for Mr Rao, and Mr Vinjamuri Ranga Babu for the respondents, with two other advocates.

For Mr Rao, the argument was that the trial court ignored devolution under the adoption deed and rejected his will on the same footing as the plaintiff’s. It also gave the children of his natural father a share they had never pleaded.

The heirs of one deceased defendant were never brought on record, he said, making the decree a nullity.

The plaintiff attacked the adoption. She said the deed was compulsorily registrable and inadmissible without registration and stamp duty, and that invitation cards are easily manipulated. She also said the three witnesses to her will proved it in one voice.

Justice Sarma framed eight points. The first read:

“Whether the adoption of defendant No.4 is true, valid and binding on the plaintiff and whether the adoption deed-Ex.B2 is having a characteristic of settlement deed conferring exclusive rights in respect of all the properties of late Subbarao and his wife, Sarvalakshmi, in favour of defendant No.4?” (para 48)

Cards, school records and the plaintiff’s admissions

On adoption, the court began with the documents. Exhibit B1 is an invitation dated 2 March 1960, four days before the deed. Exhibit B3, dated 24 January 1964, invited guests to the first-letter ceremony of Subbarao’s adopted son, and wedding cards were later printed by the adoptive parents.

Exhibit B6, a transfer certificate, names Subbarao as father. Exhibit B7, an information card for Subbarao’s annual ceremony, was issued in Mr Rao’s name.

Then came Ms Suseela’s own cross-examination. She admitted that Mr Rao was brought up in her parents’ house from the age of one or two, that her parents performed his marriage and gave his bride a gold mangalasutram chain, and that he performed her father’s obsequies.

She also admitted that she and her husband attended the wedding, and that her father admitted the boy to school. The evidence of Mr Rao and his father on the adoption, the court said, stayed unshaken after cross-examination.

The court concluded that the adoption was valid:

“the adoption of defendant No.4 is true, valid and binding on the plaintiff” (para 53)

Adoption deed made him a son, not owner

Mr Rao argued that the deed, Exhibit B2, doubled as a settlement giving him everything. The court extracted the Telugu text and read it as conferring the position of a natural son, with rights flowing after the adoptive parents’ deaths.

It noted that the deed uses the word for “law”, which suggests that his rights were as the law provides, and not total. Getting a legal status as a son, the court said, is different from getting properties under a document. It held that the deed was not a settlement conferring all rights.

On registration, the court quoted the Supreme Court in Param Pal Singh v. National Insurance Co., which in turn recounts Lakshman Singh Kothari on the giving-and-taking ceremony. A deed of adoption is not among the documents that Section 17(1) of the Registration Act makes compulsorily registrable, it noted, so the want of registration did not matter.

Burden on whoever propounds a will

Before turning to the wills, the court set out Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872. A will must be signed or marked by the testator and attested by two or more witnesses, and at least one attesting witness must be called to prove execution.

It relied on the Supreme Court in Leela v. Muruganantham, Lakshmi v. Gopi and Sardari Lal v. Bishan Dass. In them, the burden lies on the propounder, and proving execution is only the first step. If suspicious circumstances arise, the propounder must dispel them to satisfy the court’s conscience.

The plaintiff’s will: strangers as witnesses

The plaintiff’s will, Exhibit A12, was unregistered. The court began with her conduct. She had sent a legal notice to her mother demanding partition, preceded by oral demands, so the court doubted that her mother made a will in her favour in such a situation.

Her own admissions added to it. She could not say when the will was executed, whether her mother was literate, or how many times she signed. No survey numbers appear in it, no draft was prepared, and registration was contemplated but the testator died within 10 to 15 days.

The scribe, who was not a licensed document writer, did not know whether the testator could read. The second witness could not recall how many pages there were or whether it was on ruled paper. He had been invited to lunch at an obsequies ceremony.

The third witness said Exhibit A12 was the first document he had ever attested. He did not know its contents or who had bequeathed what to whom.

The court listed the suspicious circumstances: other natural heirs existed, including an adopted son, and the testator made a will preferring one heir at her parental home during her brother’s obsequies, after a legal notice and a gap between the parties. It held:

“the plaintiff failed to prove the truth, validity and binding nature of Ex.A12” (para 69)

8 April will cites a 29 May notice

Mr Rao’s will, Exhibit B11, was also unregistered. Two attestors gave evidence, and a further defence witness identified the scribe’s handwriting. One attestor was Mr Rao’s father-in-law. The other said he did not know about the adoption personally.

The will is dated 8 April 1987. The plaintiff’s legal notice is dated 29 May 1987, and the plaint gives Sarvalakshmi’s death as 13 April 1987. The court noted that the will nevertheless contains a clear reference to that notice.

Neither the recitals nor the evidence showed that it was made in anticipation of uncertainty of life through ill health. The first attestor said she had no ill health, and he could not recall any notice. The court said the sequence left the claim that Sarvalakshmi made the will open to much doubt.

The trial court had added that the family pamphlets never mention a will, and that Mr Rao did not seek comparison of her admitted signatures or an expert opinion despite a clear plea of forgery. Both wills, the High Court held, failed, and it saw no reason to differ.

Why the decree was not a nullity

Mr Rao’s last argument was that the suit abated when the heirs of the fifth defendant, Chakka Durgarao, were not brought on record. He cited Gurnam Singh, State of Punjab v. Nathu Ram, Budh Ram v. Bansi, Kanakarathanammal v. Loganatha Mudaliar and a Madras High Court ruling. The court found none applicable.

It preferred Sardar Amarjit Singh Kalra v. Pramod Gupta, Shahazada Bi v. Halimabi and Mahabir Prasad v. Jage Ram, on when the death of a party defeats a joint and inseverable decree. The partition here rests on three branches of heirs, and the Kusuma Kumari branch was on record and contesting.

Mr Durgarao was deemed to have taken no separate plea, and the trial court granted him no share separately. His rights, the court said, devolve on his heirs and can be worked out in the final decree proceedings. Abatement of the entire case, it held, was not convincing.

Equal thirds, no costs

Taking the points together, the court concluded that with both wills and the settlement theory gone, there were three sharers: the plaintiff or her legal representatives, the branch of Kusuma Kumari, and Mr Rao as adopted son. Each takes one-third.

The cross-objections failed for the same reasons. The court said the adoption was corroborated by conduct before and after it, and Exhibit A12 was not proved.

Order

The appeal is dismissed. The cross-objections, I.A. No. 2 of 2004 (Cross-Objections SR No. 6296 of 2004), are also dismissed. The judgment and decree of 16 December 2002 in O.S. No. 221 of 1987 are confirmed in all respects.

There is no order as to costs, given the relationship between the parties. Pending miscellaneous applications stand closed.