A. Civil Procedure Code, 1908 — S. 34, O. 7 R. 7 — Relief — Injunction simpliciter — Maintainability — When not in possession.
Plaintiff claiming title under a Will and admitting defendant’s possession filed suit for injunction to restrain alienation and interference with alleged peaceful possession. Both in pleadings and in evidence, possession was admitted to be with the defendant. Held, when possession is not with plaintiff, suit for bare injunction without prayer for declaration of title and recovery of possession not maintainable. Injunction against interference with possession rightly refused. However, injunction restraining alienation maintainable since defendant had also not sought declaration of title.
— Held, plaintiff asserting title under Will ought to have sought declaration of title and recovery of possession when defendant set up co-ownership and exclusive possession. Ill-drafted plaint and admissions in evidence barred grant of injunction against interference with possession.
[Paras 10-11]
B. Transfer of Property Act, 1882 — Will — Proof of Will — Sufficiency of evidence when both attesting witnesses deceased.
Will (Ex. A6) dated 30-09-1985 bequeathing property by father in favour of plaintiff and another brother held proved. Signature of testator proved by PW 1 (plaintiff) and signature of one attesting witness proved by PW 2 (his son). Held, evidence sufficient in circumstances where both attesting witnesses had died.
[Para 4]
C. Hindu Law — Ancestral property vs. self-acquired property — Right of testator to bequeath.
High Court found property to be absolute property of testator though originally purchased by grandmother. Title of testator never questioned by grandmother. Bequest therefore valid as per Will; however, right of testator to bequeath still left under a cloud since property claimed as ancestral by defendant.
[Paras 4 & 11]
D. Pleadings — Suit for injunction — Need for proper reliefs — Ill-drafted plaint — Effect.
Plaintiff admitted possession with defendant but did not seek declaration of title or recovery of possession. Held, ill-drafted plaint and clear admissions should have restrained trial court and High Court from granting injunction against interference with possession.
[Para 11]
E. Relief — Equitable directions — Liberty reserved to file fresh suit for declaration and possession.
Held, since ownership not declared in favour of either party, liberty reserved to either party to institute fresh proceedings for declaration of title and consequential possession within three months. Such proceedings to be decided afresh, untrammelled by findings in present judgment. Till then, no alienation or encumbrance to be made by either party.
[Para 12]
Result : Appeal disposed of — Injunction against interference set aside — Injunction against alienation confirmed — Liberty reserved to seek declaration and possession — No costs.
Held:
“The ‘Will’ is proved but the right of the testator to bequeath the property is still under a cloud. Even if title is established, there should have been a recovery of possession sought by the plaintiff… The injunction against alienation is perfectly in order since the defendant too has not sought for a declaration of title.”
(Per Vinod Chandran, J., para 11)
2025 INSC 1197
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CA @ SLP (C) No.18943 of 2024
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. ____ of 2025
(@Special Leave Petition (Civil) No.18943 of 2024)
S. Santhana Lakshmi & Ors.
...Appellants
Versus
D. Rajammal
...Respondent
J U D G M E N T
K. VINOD CHANDRAN, J.
Leave granted.
2. The present appeal arises from a suit filed by
Rajammal against Munuswamy, her brother, for injunction
simpliciter, one, to restrain alienation or encumbrance of the
suit property and the other to restrain interference with the
peaceful possession & enjoyment of the plaint schedule
property. The plaintiff claimed absolute right over the
property being half share of 1.74½ acres coming to 0.87¼
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acres of dry landed property with all appurtenances
attached thereto. The claim was made specifically on the
ground that by a Will dated 30.09.1985, Rangaswamy Naidu,
their father had bequeathed the said property equally in
favour of the plaintiff and another brother, Govindarajan.
The plaintiff’s contention itself was that the defendant was
continuing in the property as a tenant while the defendant
claimed that he came into possession as a co-owner and
later there was an arrangement, by which in the lifetime of
his father, the property was equally divided between the
brothers i.e. the defendant and Govindarajan.
3. The trial court found the Will to have been proved and
decreed the suit injuncting the defendant from alienating the
property and from interfering with the plaintiff’s peaceful
possession. On appeal, the appellate court found that the
bequest was made of an ancestral land, on which the testator
had no right to execute the Will. The trial court judgment
was upset and the suit was dismissed. In the second appeal,
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the High Court formulated two questions of law as to
whether the appellate court was correct in finding the suit
property to be a joint family property and whether Ex.B5
document produced by the defendant was properly
construed.
4. The property was found to be the absolute property of
the plaintiff’s father though it was purchased by the
grandmother of the plaintiff. The title of the plaintiff’s father
was neither questioned by the grandmother in her lifetime
nor did she claim a right over the said property. Ex. A6 Will
was found to have been proved since the signature of the
testator was affirmed by PW1, the plaintiff and the signature
of one of the testators, who was deceased, was affirmed by
his own son, PW2. In the context of both the testators having
passed away, the evidence was found to be sufficient to
prove the Will. Based on the above findings, the right of the
plaintiff over the property was established and the
possession was found to follow title thus enabling both the
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CA @ SLP (C) No.18943 of 2024
injunctions sought for. The first appellate court’s order was
set aside, and the suit was allowed restoring the trial court’s
judgment & decree.
5. Before us, the legal heirs of the defendant, the
appellants, contended that they have been always in
possession of the land, as admitted by the plaintiff. The suit
was filed without any prayer for declaration and the
injunction simpliciter ought not to have been granted. It was
contended that by Ex. B1 agreement entered into by
Rangaswamy Naidu, Govindarajan and the original
defendant, there was a division of the properties in the year
1983 itself. The plaintiff was unable to produce any ocular or
documentary evidence to establish possession. The
plaintiff’s own admission was that the defendant was in
possession of the property.
6. The learned Senior Counsel appearing for the
respondent-plaintiff, however, would point out that there are
two different properties, as has been noticed by the High
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Court, one purchased in the year 1934 and another in the
year 1984. The house property is said to have been
purchased in the year 1984 with which the plaintiff was not
concerned in the suit. In fact, a specific pleading was made
reserving her right to take action against the house property
separately. The appellants as of now is concerned only with
the property more fully described in the plaint which does
not contain a house, is the contention.
7. We have gone through the suit in which clear
statements are made as to the defendant having been
inducted into the property as a tenant by the father. The
father is said to have filed OS No. 895 of 1984 to obtain
possession of the suit property and arrears of rent, which,
after the death of the father, stood dismissed allegedly for
reason of the defendant having agreed to pay the rent.
Immediately, we have to notice that Annexure P7 dismissed
OS No.895 of 1984 filed by Rangaswamy Naidu, after his
death, substituting Govindarajan and the plaintiff as the
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CA @ SLP (C) No.18943 of 2024
legal heirs. The suit was dismissed for default without any
observation of an agreement regarding payment of rent. It is
also pertinent to observe that even at that stage a written
statement was filed by the original defendant, Munuswamy
contending that in the suit property, the defendant had put
up a structure in which he was residing with his family. He
claimed possession of the property as a co-owner and not as
a tenant; which relationship was asserted to be not existing
since there was no such tenancy created orally or on the
strength of documents. The original plaintiff having died, the
siblings who got impleaded as his legal heirs, filed an
amended plaint again alleging tenancy and claiming the
property as per the registered Will dated 30.09.1985. The
substituted plaintiffs despite taking up a plea of the Will
executed by the deceased father in the amended plaint, the
proceedings were not continued and the suit stood
dismissed for default.
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8. It was after a few years that the present suit was
instituted in the year 2003 wherein also the possession of the
defendant was admitted, again on the contention of a
tenancy arrangement. In the present suit also, the defendant
took up a contention that it was a joint family property later
set apart to his share.
9. More pertinent is the fact that the plaintiff in her
evidence clearly stated that property covered by the Will is
in the possession of Munuswamy and Govindrajan, her
brothers. The total extent of the property even according to
the plaintiff is 1.74½ acres and her share is 87.25 cents. The
property on the four sides of her share is stated to be in the
hands of third parties; which cannot be correct since when
half of the property is claimed, at least on one side the
property bequeathed to Govindrajan should have been
mentioned. In fact, even in evidence, it is repeated that in
the suit property the father and Munuswamy, the defendant
were staying in half portions of the house and Govindrajan
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CA @ SLP (C) No.18943 of 2024
was staying in the ancestral house. As of now, with respect to
the suit property, it is contended that Munuswamy is
enjoying the western portion and Govindrajan is enjoying
the eastern portion of the house.
10. It is also significant that though the plaintiff did not
have possession, she had not claimed recovery of
possession. While asserting a Will and title on its strength,
there should have been a declaration of title sought,
especially when the contention of the defendant was that he
came into the property as a co-owner and then occupies it
with absolute rights, making valuable improvements. The
defendant also did not seek to get a declaration on the basis
of an arrangement entered into with the father and the other
brother or seek a partition on the strength of a counter
claim.
11. In the above circumstances, we cannot but find the
‘Will’ is proved but the right of the testator to bequeath the
property is still under a cloud. Even if the title is established,
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there should have been a recovery of possession sought by
the plaintiff. The ill-drafted plaint and the clear admissions
made in the witness box ought to have restricted the trial
court and the High Court from granting an injunction against
the interference of peaceful enjoyment of the property,
especially when the possession was admitted to be with the
defendant, in the pleadings as also the oral evidence. The
injunction against alienation is perfectly in order since the
defendant too has not sought for a declaration of title.
12. The learned Senior Counsel for the plaintiff sought for
agitating the cause afresh. We are of the opinion that since a
stalemate is created; with the ownership not having been
declared in favour of either of the parties, also considering
the relationship, we reserve liberty to either of the parties to
seek declaration of title and consequential possession or
recovery of possession, if they desire, which proceedings
will be instituted within a period of three months from today.
If a fresh proceeding is initiated then the same would be
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considered afresh untrammelled by the findings in the
present proceedings, which shall not govern the rights of
the parties. However, we make it clear that no alienation
shall be made by both parties or the subject property
encumbered.
13. The appeal is disposed of with the above reservation of
liberty.
14. Pending applications, if any, shall stand disposed of.
…..….…………………….….. J.
(Ahsanuddin Amanullah)
.….….…………………….….. J.
(K. Vinod Chandran)
New Delhi;
October 07, 2025.
