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Friday, October 10, 2025

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.


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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CA @ SLP (C) No.18943 of 2024

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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CA @ SLP (C) No.18943 of 2024

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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CA @ SLP (C) No.18943 of 2024

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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CA @ SLP (C) No.18943 of 2024

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.