IMPORTANT POINT
Will – Mode of proving Will does not ordinarily differ from that of any other document except as to special requirement of attestation prescribed in Section 63 of Indian Succession Act.

JUDGMENT

Instant appeal under Section 100 of the Code of Civil Procedure, 1908 is at the behest of the appellant challenging the impugned judgment and decree dated 27th August, 2002 promulgated in Title Appeal No. 8 of 1999, whereby, the suit corresponding to T.S. No. No. 30 of 1998 was dismissed in whole on the grounds inter alia that the same is contrary to weight of evidence and hence, liable to be set aside with a direction to partition the suit schedule properties between her and respondent No.2.

2. The appellant instituted the suit in T.S. No.30 of 1998 seeking relief of declaration to the effect that respondent No.2 (defendant No.2) is not the adopted son of her mother, namely, K.Appamma and for partition of the schedule properties. It was pleaded by the appellant that defendant No. 2 was not the adopted son of late K.Appamma and in so far as the Will executed in favour of the former is concerned, the same is null and void. The said claim of the appellant was challenged by respondent No.2 with the pleading that he was adopted into the family and the Will was executed by late K.Appamma. Considering the pleadings of the parties, the learned Trial Court framed as many as nine issues which included the issue of adoption whether to be valid; if the Will dated 14th October, 1976 to be null and void; and whether, the suit schedule properties are liable for partition and finally, reached at a conclusion that though the adoption is not proved but there are no suspicious circumstances to reject the alleged Will executed by late K.Appamma in favour of respondent No.2 and accordingly, decreed the suit in part. Against the judgment and decree dated 23rd December, 1998, the appellant, being unsuccessful in having a declaration vis-à-vis the Will, carried the matter in appeal which was finally disposed of by the learned Additional District Judge, Gajapati, Parlakhemundi with the impugned decision confirming the alleged execution and bequest of the schedule properties and also believing the adoption of respondent No.2. Against the confirming judgment in Title Appeal No. 8 of 1999, the appellant approached this Court on the grounds inter alia that not only the adoption is not established though the learned Lower Appellate Court was not justified to conclude so in absence of any appeal or cross-appeal by respondent No.2 but also both the courts below failed to take judicial notice of the suspicious circumstances surrounding the execution of the Will despite evidence on record.

3. Heard Mr. Rao, learned Senior Advocate appearing for the appellant and Mr. Prusty, learned counsel for the respondents.

4. This Court by order dated 13th July, 2004 formulated the substantial questions of law which are as follows:—

(i) Whether the learned courts below have committed error of law in not taking note of the evidence which apparently speaks of the suspicious circumstances in which the Will i.e. Ext. 2 is alleged to have been executed and whether such execution under the circumstances can be declared to be valid and binding to the parties?

(ii) Whether Ext. 2 describing respondent No.2 as the adopted son, the recitals can be said to be valid and binding on the parties when there is no material to prove the adoption itself?

5. The challenge in the appeal is as against the decision of the learned Lower Appellate Court on adoption in absence of any appeal or cross-appeal by respondent No.2 to be justified and also with regard to the acceptability of the Will executed by late K.Appamma. The suit is at the instance of the appellant was for a declaration against adoption and Will and for partition of the schedule properties. As earlier stated, the Will executed by the late K.Appamma was held to be valid though the adoption of respondent No.2 failed. Quite interestingly, the learned Lower Appellate Court reversed the finding on issue No.3 on adoption and disagreed with the conclusion of the Trial Court which was again in the absence of any challenge to i