O.S.No.174 of 2018 1 Addl.

Senior Civil Judge Court,

Kadapa, Dt.05.10.2023.

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE: KADAPA

Present : Sri M. Pradeep Kumar,
Additional Senior Civil Judge,
Kadapa.
Dated: Thursday, this the 05th day of October, 2023.

O.S.No. 174 of 2018

Chitramjetti Chan Basha, S/o. Chitramjetti Babu Saheb,

aged about 31 years, N.R.I., presently residing at
Old Door No.1/139, New Door No.76/139,
Ramarajupalli, Kadapa City, Y.S.R. District.
….Plaintif
Vs.
Chitramjetti Babu Saheb, S/o. Late Chitramjetti Badulla,
aged about 64 years, R/o.Old Door No.1/139,
New Door No.76/139, Ramarajupalli, Kadapa City,
Y.S.R. District.
….Defendant

This suit coming on 11.09.2023 for final hearing before me in the

presence of the Sri S. Abdul Rahim, Advocate for the Plaintiff and the
defendant was set exparte and upon hearing the arguments of plaintiff and
the matter having stood over for consideration till this day, this Court made
the following:
JUDGMENT

This is a suit filed by the plaintiff for declaration of his right and

title over the suit schedule plaint plan ABCD property as the absolute owner

of the plaintiff by declaring the Will, Dt.05.10.2015 is valid and binding on

the defendant and for consequential permanent injunction by restraining

the defendant and his men from interfering with the plaintiff's peaceful

possession and enjoyment of the suit schedule property and with costs.

1. The brief averments of the plaint are as follows:-

The plaintiff, defendant and his wife late Chitramjetti Pakkiramma

belongs to Dudekula caste and governed by Mohammadan Law. The suit

property originally belongs to the defendant and he gifted the same to his

wife by name Chitramjetti Pakkiramma by executing a Registered Gift Deed

bearing Doc.No.13602/2006, Dt.30.11.2006 and delivered possession on the

O.S.No.174 of 2018 2 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

same day and since then the said Pakkiramma had been in peaceful

possession and enjoyment of the same till her death. The defendant and

his wife have no issues and as the plaintiff was orphan belongs to

Jammalamadugu Town and nearest relative's child of the defendant, the

defendant and his wife brought the plaintiff in his childhood and since then

the plaintiff is under the care and custody of the defendant and his wife and

they looked after the plaintiff as their own son and the plaintiff also looked

after the defendant and said Pakkiramma as his own parents. The

defendant and his wife brought up the plaintiff in his childhood for their

welfare i.e., in an old age the plaintiff look after the defendant and his wife

Pakkiramma. The plaintiff completed his graduation and all his certificates

and other records discloses that the defendant is shown as the father of

plaintiff and the Pakkiramma name is shown as mother of plaintiff in

plaintiff's passport. The plaintiff looked after the late Pakkiramma till her

death as his own mother with love and affection.

(a) During the life time of Chitrametti Pakkiramma, she executed

a Will, while she was in hale and healthy state of mind i.e., on 05.10.2015 in

favour of plaintiff bequeathing the suit schedule plaint plan ABCD property

by giving a limited rights to the defendant that he has no right to sell or to

mortgage or to gift or to alienate the suit property and the defendant shall

enjoy the said property till his death. The said Pakkiramma who is the

foster mother of plaintiff died on 27.07.2017 and the Will executed by her is

legal, valid and binding in the eye of law.

(b) Since one year, the defendant's sister by name Kandukuri

Imam Bi, joined as a tenant in the suit schedule plaint plan house bearing

Door No.76/137 on a rental basis of Rs.1,500/- per month and she paid the

rents regularly to the plaintiff for a period of eight months and since four

months the tenant Imam Bi stopped payment of monthly rent to the

plaintiff. When the plaintiff demanded her for payment of due rent, the
O.S.No.174 of 2018 3 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

defendant has been disputing the said Will Dt.05.10.2015 executed by his

wife as the defendant and his sister Imam Bi colluded with each other in

order to knock away the suit property and also making serious efforts to

alienate the same by suppressing the fact of the said Will and also

threatening him to dispossess from the suit property. The defendant or any

one having no any manner of right and title over the suit schedule property

except the plaintiff. Hence, the suit.

2. Despite of giving sufficient opportunity, the defendant engaged a

counsel and did not file his written statement before this Court and hence

he was set exparte.

3. Later in order to prove his case, the plaintiff himself got examined

as P.W.1 and also examined one Syed Abdul Razak as P.W.2 and got marked

Exs.A.1 to A.19.

4. Heard the learned counsel for the plaintiff and perused the

material on record.

5. Now the points for consideration are:-

1. Whether late Chitramjetti Pakkiramma executed an Un-
registered Will, Dt.05.10.2015 in favour of plaintiff with limited
rights to the defendant?
2. Whether the plaintiff is entitled for declaration of right and title
over the suit schedule property as prayed for ?

3. Whether the plaintiff is entitled for consequential permanent

injunction against the defendant as prayed for?
4. To what relief?

POINTS No.1 to 3:- As these issues are interconnected to one another, I

find that it is expedient to decide all the above points by common
discussion, in order to avoid repetition of facts.

6. It is the contention of the plaintiff that as the defendant and his wife
O.S.No.174 of 2018 4 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

Pakkiramma are issue-less, they brought up the plaintiff who is an orphan,

since his childhood as their son and brought up him and originally the suit

property belongs to the defendant and he gifted the same to his wife

Pakkiramma under a Registered Gift Deed, Dt.30.11.2006 and delivered

possession to her on the same day and since then she had been in

possession and enjoyment over the same and during her life time, she

executed an unregistered Will, Dt.05.10.2015 in favour of plaintiff in respect

of suit property with the limited rights to the defendant and though the

defendant has limited rights over the suit property, he is trying to alienate

the same to third parties.

7. To substantiate the case of the plaintiff, the wife of plaintiff got

examined as PW.1. PW.1 reiterated the plaint averments in her chief

examination affidavit and also relied on Ex.A.1 which is the original

registered General Power of Attorney bearing Doc.No.30/2018,

Dt.01.05.2018 which discloses that the plaintiff is residing at Gulf Country

as such his wife i.e., P.W.1 is entitled to prosecute this suit. As per the

orders in I.A.No.1194 of 2018, this Court allowed the petition filed by the

petitioner/plaintiff by permitting the wife of plaintiff i.e., P.W.1 who is

authorised under Ex.A.1 to prosecute this suit. Ex.A.2 is the original un-

registered Will, Dt.05.10.2015 executed by Pakkiramma in favour of

defendant and plaintiff with limited rights to defendant. Ex.A.3 is the

certified copy of gift deed bearing Doc.No.13602/2006, Dt.30.11.2016 which

discloses that the defendant gifted the suit property to his wife i.e.,

Pakkiramma. Ex.A.4 is the encumbrance certificates which discloses the

transactions of Ex.A.3, Ex.A.5 is the marriage certificate of plaintiff,

Dt.17.11.2017 which discloses that the marriage of plaintiff and P.W.1 was

solmenized on 06.01.2008 performed by the Government Qazi. Ex.A.6 is

the plaint plan of suit schedule property. Ex.A.7 is the death certificate of
O.S.No.174 of 2018 5 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

Pakkiramma, Dt.27.10.2017 which shows that the said Pakkiramma died on

27.07.2017. Ex.A.8 to Ex.A.19 are the Household card, Transfer Certificate,

Passport of Chitramjetti Chan Basha, Pan Card bearing No.AKXPC27761,

S.S.C. Mark List, Provisional Certificate, Consolidated Memorandum of

Marks, Dt.02.10.2011, community, nativity and date of birth certificate,

Dt.28.06.2004, study certificate, study certificate, Dt.25.06.2004, voter

Identity card and bank pass book stands in the name of plaintiff and shows

that defendant and Pakkiramma are the parents of plaintiff.

8. This is a suit for declaration of right and title over the suit schedule

property, in such circumstances, the heavy burden lies on the shoulders of

the plaintiff to prove the same with high standard of degree without relying

on the weakness on the defendant.

9. The burden of proving execution of Un-Registered Will

Dt.05.10.2015 executed by Pakkiramma in favour of plaintiff is on the

plaintiff. The propounder of the Will has to prove the execution Will and he

has to dispel suspicious circumstances if any.

10. LAW RELATING TO WILLS :-

(a) The law in regard to proof of a valid Will is now settled. It

has to be proved not only by proving the signature of the executor, but it

should be found to be free from any suspicious circumstances. Section 63

(c) of Indian Succession Act, reads as under :-

“The Will shall be attested by two or more witnesses, each of whom

has seen the testator sign or affix his mark to the Will or has seen
some other person sign the Will, in the presence and by the direction
of the testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of the signature of such
other person; and each of the witnesses shall sign the Will in the
presence of the testator, but it shall not be necessary that more than
one witness be present at the same time, and no particular form of
attestation shall be necessary.”
O.S.No.174 of 2018 6 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

Undisputedly, the said provision is mandatory. The attestors

should see the testator signing the Will or some other person in the

presence and direction of the testator and the witnesses shall sign the Will

in the presence of the testator.

(b) Section 68 of Indian Evidence Act, 1872, deals with proof of

execution of document required by law to be attested. It says that -

“If a document is required by law to be attested, it shall not be used

as evidence until one attesting witness at least has been called for
the purpose of proving its execution, if there be an attesting witness
alive, the subject to the process of the Court and capable of giving
evidence:-
Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a Will, which has
been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied.”

(c) Section 69 of Indian Evidence Act, 1872, deals with proof

where no attesting witness found. It says that -

“If no such attesting witness can be found, or if the document

purports to have been executed in the United Kingdom, it must be
proved that the attestation of one attesting witness at least is in his
handwriting and that the signature of the person executing the
document is in the handwriting of that person.”

11. In Lalitaben Jayanthilal Popat v. Pragnaben Jamnadas

Kataria and others, 2009 (2) ALD 19 (SC), the Hon'ble Supreme Court

held that -

“It is trite law that execution of a Will must be hold to have been
proved not only when the statutory requirements for proving the Will
satisfied, but the Will is also found to be ordinarily free from
suspicious circumstances.”
O.S.No.174 of 2018 7 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

12. In Sushila Bai Vasudev Rao Bodhanker (died) per L.Rs. v.

Govind Rao Bodhanker and others, 2016 (3) ALT 228, the Hon'ble

High Court of Judicature at Hyderabad held that -

“16...So, having regard to Section 68 of Evidence Act and Section 3

of Transfer of Property Act and the above observation of Hon'ble
Apex Court, it is clear that in proof of due execution of Will and its
attestation, the attesting witnesses shall clearly spell out that the
executant had either signed or put the thumb impression in their
presence and they in turn have attested in the presence of
executant. If they failed to state these crucial facts, it cannot be
held that execution of the Will was duly proved.”

13. A Will need not be stamped under the Indian Stamp Act and need

not be necessarily registered, being optional under Section 18 of the Indian

Registration Act. It is different from gift or settlement or other disposition of

transfer. Though registration is optional and not compulsory and non-

registration is by itself not a ground to doubt its due execution, registration

is one of the positive circumstances to infer in favour of due execution,

unless evidence on record shows otherwise. Registration of Will being

optional, mere registration does not dispense with the proof of execution

and attestation.

14. It is the specific contention of the plaintiff that originally the suit

property belongs to the defendant and he gifted the same to his wife

Pakkiramma and delivered the same under Ex.A.3 registration copy of Gift

Deed bearing Doc.No.13602/2006, Dt.30.11.2016 and since then the said

Pakkiramma had been in peaceful possession and enjoyment over the same

till her death. It is the contention of the plaintiff that during the life time of

said Pakiramma, she executed an unregistered Will, Dt.05.10.2015 in favour

of plaintiff. Ex.A.2 is the Un-registered Will, Dt.05.10.2015 executed by

Pakkiramma bequeathing the suit property in favour of plaintiff by giving

limited rights to the defendant and the defendant has no right to alienate
O.S.No.174 of 2018 8 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

the same till his death and after his death, the plaintiff will become the

absolute owner of the suit property.

15. The Will has been proved in the manner known to law. PW.1

reiterated the plaint averments in her chief examination affidavit which

clearly discloses that the said Pakkiramma executed a Will in her life time,

while she was in hale and healthy and good state of mind, executed Ex.A.2.

P.W.2 who is one of the attesting witnesses in Ex.A.2 in categorical terms

had spoken about the execution and attestation of the Will and also the

testamentary capacity of the testator at the time of execution of the Will.

When once it is proved that the Will has been executed in the manner

known to law, the onus shifts on the defendant to prove the forgery, undue

influence or coercion. There is no resistance from the defendant towards the

claim of plaintiff. I hold that the plaintiff proved the Ex.A.2 was executed

by said Pakkiramma in favour of plaintiff and defendant and limited rights to

the defendant. On the other hand, the evidence of P.W.1 is un-rebutted one,

hence I am inclined to accept the evidence of P.W.1 as cogent and

trustworthy with regard to genuinity of Ex.A.2.

16. It is the specific contention of the plaintiff that he is the absolute

owner of the suit property after the death of Pakkiramma and he has been

in possession and enjoyment of the same and about one year ago, one

Imam Bi who is the sister of defendant joined as a tenant in the suit

schedule house bearing D.No.76/137 on a rental basis of Rs.1,500/- and she

paid rent for eight months and later she did not pay the same and also the

defendant is trying to alienate the suit property to third parties against the

Will which was executed by Pakkiramma.

17. To prove the above said contention, this Court has to see the

contents of Ex.A.2 which reads the main contents as follows:-

O.S.No.174 of 2018 9 Addl.Senior Civil Judge Court,
Kadapa, Dt.05.10.2023.

“She acquired the suit property from the defendant under a

registered gift deed bearing Doc.No.13602/2006, Dt.30.11.2006
and delivered possession to her and since then she has been in
possession and enjoyment of the same. Since she is issue-less,
herself and defendant brought up the orphan i.e., plaintiff as their
own child, educated him and got married to one Syed Basu on
06.01.2008 and the plaintiff also served them by treating them as
his own parents. After her death, her husband i.e., defendant
herein and her adopted son i.e., plaintiff shall enjoy the following
schedule property jointly and limited rights to the defendant i.e.,
during his lifetime, the defendant shall not alienate, pledge,
mortgage or sell the suit property and subsequently after the
death of defendant, the plaintiff shall enjoy his property with full
rights and neither her husband's heirs nor her heirs shall have any
right. This shall come into force after her death.”

18. As per Ex.A.2, it is clearly mentioned that the plaintif and

defendant shall enjoy the suit property jointly with the limited

rights to the defendant that during his lifetime, he shall not

alienate the same and after his death, the plaintif shall have

absolute right and title over the suit property. Admittedly, the

defendant is alive and as per Ex.A.2, till the death of defendant, the plaintiff

shall not acquire absolute right and title over the suit property. Likewise,

the defendant has also no right to sell, pledge or mortgage the suit property

to third parties during his life time. Hence, the plaintiff did not acquire any

right till the death of defendant. When the plaintiff is not entitled for the

declaration, he cannot be granted any injunction which is an equitable

relief.

19. In view of the above discussion, the plaintiff failed to discharge his

burden in respect of proving of right, title and possession over the suit

schedule property, the suit is liable to be dismissed. Hence, these points are

answered accordingly.
O.S.No.174 of 2018 10 Addl.Senior Civil Judge
Court,
Kadapa, Dt.05.10.2023.

Point No.4:-

20. In the result, the suit is dismissed without costs.

Typed to my dictation by the Grade-II Stenographer, corrected and

pronounced by me in the open court, on this the 05th day of October, 2023.

Sd/- M. Pradeep Kumar,

Additional Senior Civil Judge,
Kadapa.

APPENDIX OF EVIDENCE

Witnesses examined for Plaintif: For Defendants:

PW.1: C. Sayeda Banu. - None -
PW.2: Syed Abdul Razak.
Exhibits marked for Plaintif:
Ex.A1: Original registered General Power of Attorney bearing
Doc.No.30/2018, Dt.01.05.2018.
Ex.A2: Original Unregistered Will Deed, Dt.05.10.2015.
Ex.A3: Certified Copy of Gift Deed bearing Doc.No.13602/2006, Dt.30.11.16.
Ex.A4: Original Encumbrance Certificates, two in number, Dt.17.02.2018.
Ex.A5: Original Marriage Certificate, Dt.17.11.2017.
Ex.A6: Original Plaint Plan.
Ex.A7: Original Death Certificate of Pakkiramma, Dt.27.10.2017.
Ex.A8: Original House Hold Card.
Ex.A9: Original Transfer Certificate.
Ex.A10: Original Passport of Chitramjetti Chan Basha.
Ex.A11: Original PAN Card bearing No.AKXPC2776L of C. Chan Basha.
Ex.A12: Original SSC Mark List of Chitramjetti Chan Basha, Dt.06.07.2002.
Ex.A13: Original Provisional Certificate, Dt.02.10.2011.
Ex.A14: Original Consolidated Memorandum of Marks, Dt.02.10.2011.
Ex.A15: Original Community, Nativity and Date of Birth Certificate,
Dt.28.06.2004.
Ex.A16: Original Study Certificate.
Ex.A17: Original Study Certificate, Dt.25.06.2004.
Ex.A18: Original Voter Identity Card of Chan Basha Chitrajetti, Dt.11.12.08.
Ex.A19: Original Pass Book of Chitramjetti Chan Basha for Account bearing
No.31907111112 of State Bank of India, Bazar Branch, Kadapa.
Exhibits marked for Defendants: Nil.
Sd/- M. Pradeep Kumar,
A.S.C.J.,
Kdp.