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IN THE COURT OF THE VII SENIOR CIVIL JUDGE :
CITY CIVIL COURT : HYDERABAD
PRESENT : SMT. P. DEVI MANASA
IV SENIOR CIVIL JUDGE,
FAC VII SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
DATED, THIS THE 19th DAY OF FEBRUARY, 2026
O.S.No.1083 OF 2012
BETWEEN:
1. M. Jaishree, W/o Late Sri Subhash, Aged 55 years, Occ. : Nil.
2.M. Susheel Kumar, S/o Late Sri Subhash, Aged about 35 years, Occ. : Business.
3.Smt. M. Manjula, D/o Late Sri Subhash & W/o N. Satish Kumar, Aged about 33 years, Occ. : Nil.
4.M. Pawan Kumar, S/o Late Sri Subhash, Aged about 28 years, Occ. : Nil.
All Residents of H.No. 18-4-486/3, Aliabad, Hyderabad. … Plaintiffs
AND
1. Mudham Ravinder, S/o Late Sri M. Mallaiah, Aged about 49 years, Occ. : Contractor, R/o. H.No. 18-4-409, Outside Aliabad, Hyderabad.
2. M. Ashok Kumar, S/o. Late Sri M. Mallaiah, Aged about 48 years, Occ. : Business, R/o. Plot No. 20, Information Colony, Hayathnagar, RR District, Hyderabad – 501 505.
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3. Smt. M. Prema, D/o. late Sri M. Mallaiah & W/o. A. Narayan, Aged about 68 years, Occ. : Housewife, R/o. H.No. C-670, NGO’s Colony, Vanasthalipuram, Ranga Reddy District.
4. Smt. Mudham Vasantha, D/o late Sri M. Mallaiah & W/o. A. Balvanth, Aged about 51 years, Occ. : Housewife, R/o. H.No. 18-5-47, Lal Darwaza, Outside Aliabad, Hyderabad.
AND ALSO AT
18-3-463/1/1, Rajanna Bowli, Hyderabad.
5. Smt. M. Padma, W/o. Late M. Ashok Kumar, Aged about 46 years, Occ: Nil, R/o. Plot No.20, Information Colony, Tharuru, Hayathnagar, R.R. Dist.
6. Sri. M. Shiv Kumar, S/o. Late M. Ashok Kumar, Aged about 25 years, Occ. : Private Employee, R/o. Plot No. 20, Information Colony, Tharuru, Hayathnagar, R.R. Dist.
7. Smt. A. Shravani, W/o. A. Goverdhan & D/o. Late M. Ashok Kumar, Aged about 23 years, Occ. : Nil, R/o. H.No. 18-4-230, Near Shraddha College, Adilabad, Hyderabad.
Amended Carried out as per the Order, Dt04-06-2018 in I.A.No.601/2016.
8. T. Sravanthi, W/o. Srinivas, Aged about:35 years, Occ: Business, R/o.H.No.8-1-285/1, Shaikpet, Hyderabad, T.S.
(Defendant No.8 added as per Orders in I.A.No.421/2023, Dt.11-08-2023).
...Defendants
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This suit is coming before me for final hearing in the presence of Sri Sharad Sanghi, Advocate for the Plaintiffs, Sri. Bheeshmadev Rao, Advocate for Defendant No.1,Sri. Syed Zainulabedin Advocate for Defendant No.3 & 4 and 4, Sri.Praveen Reddy for Defendant No.8 and the matter having been heard and stood over for consideration till this day, this court delivered the following:
: J U D G M E N T :
This suit is filed for partition, declaration of Gift Deed as Null and void not binding on plaintiffs and mesne profits.
Pleadings in Nutshell
1. It is submitted that Late Mr. M. Mallaiah was the absolute owner of the suit schedule property, which upon his death devolved intestate upon his widow and six children, each being entitled to an equal share. After the subsequent demise of the widow, the plaintiffs, as legal heirs of late M.
Subhash, repeatedly sought partition and separate possession, which was evaded by the defendants. The plaintiffs later came to know of an alleged gift settlement deed executed by the widow and defendants 3 and 4 in favour of defendant No.1, suppressing the existence of other legal heirs, rendering the said deed not binding on the plaintiffs. Consequently, the property is liable to be divided into three equal shares among the plaintiffs, defendant No.1, and defendant No.2. Defendants 3 and 4 are impleaded as proforma parties, and defendant No.1, who is in receipt of rental income from the property, is liable to render accounts. The alleged impleadment of defendant No.8, claimed as a
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legal heir of late Smt. Shobha, is denied as fictitious, and therefore no separate share is required to be allotted to such person. Hence this suit.
2. In written statement, Defendant No.1 denies all allegations made in the plaint and contends that the suit is false, speculative, and not maintainable either on facts or in law. The suit schedule property originally belonged to late
M. Mallaiah, who, during his lifetime, executed a registered Will dated 20-01- 1975, whereby he intentionally excluded his sons Subhash and Ashok Kumar from inheritance due to their conduct and appointed his wife as executrix.
Consequently, the plaintiffs, claiming through late Subhash, have no right, title, or interest in the suit property. The alleged claim of intestate succession and demand for partition is denied, and the gift settlement deed dated 05-05- 2009 is stated to be valid and binding. Allegations of suppression, fraud, criminal liability, rental income, and issuance of legal notice are specifically denied. It is further contended that there is no cause of action, the suit is undervalued, barred by limitation, and liable to be dismissed with costs.
3. In written statement, Defendant No.8 denies all allegations in the plaint and contends that the suit is not maintainable either on facts or in law, for want of locus standi and cause of action. It is asserted that late M. Mallaiah executed a Will dated 20-01-1975 bequeathing the suit schedule property
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exclusively in favour of his wife, Smt. M. Eshwaramma, who thereby became the absolute owner. During her lifetime, Smt. M. Eshwaramma executed a registered Gift Settlement Deed dated 05-05-2009 in favour of Defendant No.1, and therefore the suit property exclusively belongs to Defendant No.1. The plea of intestate succession and claim for partition are denied as false. It is further contended that late M. Subhash and Defendant No.2 were excluded from inheritance due to their conduct and never asserted any right during their lifetime, having already received monetary benefits. Allegations regarding suppression of facts, demand for partition, rental income, and entitlement to shares are denied, and it is submitted that the suit is false, vexatious, barred by law, and liable to be dismissed with exemplary costs. Right to file written statement of Defendant No.5 to 7 is forfeited, Defendant NO.3 and 4 adopted written statement field by Defendant No.1.
4. In Rejoinder,The plaintiffs submit that the allegations in the written statement of Defendant No.1 are false, baseless, and concocted. The contention that late M. Mallaiah executed a Will dated 20-01-1975, purportedly excluding the plaintiffs and Defendant No.2 from inheritance, is denied and alleged to be fabricated. The claim that the plaintiffs were removed from inheritance due to misconduct, bad habits, or ill-treatment of their parents is entirely false. The assertion that the mother of Defendant No.1 executed a Gift Settlement Deed
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suppressing other legal heirs is also denied. All averments relating to the Will, appointment of executrix, or concealment of documents are denied as untrue, and they pray that the suit be decreed as originally sought in the interest of justice.
5. Based on the disputed pleadings, the following issues were framed for trial:
1. Whether the father of the plaintiffs and second defendant were removed by their father Mallaiah and the Will Deed dt:20-01-1975?
2. Whether the Gift Settlement Deed dt:05-05-2009 executed. by the grandmother of theplaintiffs by name Eshwaramma and defendants 3 and 4 gifting the suit schedule property to the first defendant is valid and binding on theplaintiffs?
3. Whether the defendants 3 and 4 are not entitled for any share in the suit schedule property in view of execution of the gift deed dt:05-05-2009?
4.Whether the plaintiffs are entitled for preliminary decree of partition, if so, what are the shares to which the plaintiffs and defendants are entitled to?
5.Whether the plaintiffs are entitled for mesne profits at Rs.25,000/- as prayed for?
6. To what relief?
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6. During Trial,On behalf of plaintiffs, Plaintiff No.1 is examined as Pw1,
Plaintiff No.2/Susheel kumar is examined as Pw2, On behalf of defendants,
Defendant is examined as Dw1, One Prakash.p is examined as Dw2, Defandant
No.4/Vasantha is examined as Dw3, Defandant No.8/Sravanthi is examined as
Dw3, instead of Dw4 she is examined as Dw3 again hence for clarity she is given Dw3/1,and daughter of Defendant No.3/third party/priyanka is examined as Dw4, Ex.B1 to Ex.B3 are marked. Heard both sides,perused the Record and citations.
Evidence led by parties
7.Plaintiff No.1 is examined as Pw1, her chief is mirror of plaint,through her Ex. A1, Certified copy of the sale deed (in Urdu), dated 19-3-1349 Ex.
A2, True English translation of the sale deed (certified copy of Defendant No.
1), dated 19-3-1349 Ex. A3, Original death certificate of M. Subhash, dated 30.03.2009. Ex.A4, Transfer certificate of Mr.M. Subhash, dated 26.04.1968.
Ex.A5, Copy of election card of M. Subhash, dated 25.04.1996. Ex.A6 Certified copy of gift deed, dated 05.05.2009. Ex.A7 Office copy of legal notice. Ex.A8
Postal acknowledgment receipt of Defendant No. 3. Ex.A9 Postal acknowledgment receipt of Defendant No. 2. Ex.A10,Original valuation certificate, dated 18.04.2012. are marked.
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8. During cross examination of Pw1, she stated that she is illiterate and that her chief affidavit was prepared as per her instructions. She has been residing at Aliabad for over 25 years but does not know the house number of the suit schedule property and has not filed any documentary proof of residence prior to that period. She stated that Eshwaramma is her mother-in- law, a government employee, and that her father-in-law, M. Mallaiah, died about 35 years ago, with last rites performed at Puranapool burial ground. She does not remember the exact date of her marriage but stated it occurred more than 40 years ago. She denied suggestions that she did not reside in the matrimonial home after marriage or that she is falsely claiming relationship with M. Mallaiah. She acknowledged that M. Mallaiah had three sons and three daughters and denied knowledge of one daughter, Anuradha. She stated that the suit schedule property stands in the name of M. Mallaiah in GHMC records and denied that the defendants paid property tax or that any will was executed excluding her husband. She further denied allegations regarding her husband’s illness, habits, and death, affirmed issuance of legal notice prior to filing the suit, and denied that the property is uninhabitable or that she has no right over it. She finally denied deposing falsely. further stated that House
No. 18-4-486/3 was purchased by her and not with any money given by her mother-in-law, Smt. Eswaramma, and denies the suggestion that the property
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was acquired using funds provided by her. She asserts that no amount was paid by Defendant No.3 either to her husband or to Defendant No.1 for their benefit, and she is not aware of any financial contribution made by her mother-in-law for their welfare. She further states that relations with some family members are not cordial, due to frequent quarrels, and therefore they maintain distance. She denies knowledge of certain allegations made against her and states that her mother-in-law did not execute any registered gift deed in favour of Defendant No.1 in respect of the suit property. She also denies that the suit property was settled in favour of Defendant No.1 or that any money was given towards their share. Regarding the structure, she states that most of the building has collapsed and that only one room is presently in existence, denying claims that multiple rooms were rented out. She denies formal suggestions put by counsel.
9. Plaintiff No.2/Susheel kumar is examined as Pw2, his chief examination affidavit is mirror of plaint, During cross examination he states that he studied up to Intermediate and is residing with his family. He asserts that the suit schedule property originally belonged to his grandfather, M. Mallaiah, and denies all suggestions that the property was exclusively managed, settled, or bequeathed by will in favour of Smt. Eswaramma or Defendant No.1. He states that he has personal knowledge of the family affairs, denies exclusion from
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inheritance, and asserts that his family has continuously asserted rights over the suit property, including oral demands for partition by his father. He denies allegations that the plaintiffs have no entitlement or that the suit is false or vexatious. He admits that no legal notice was issued by his father during his lifetime, though oral demands were made, and that while a legal notice was issued later, no acknowledgment is available. He clarifies that House No. 18-4- 486/3 is a rented premises and not owned by his mother, whereas a different house purchased by his mother under a registered sale deed is not the suit property. He further denies any family settlement, gift deed, or monetary distribution by Smt. Eswaramma in favour of Defendant No.1, and reiterates that the suit schedule property is not the exclusive property of Defendant No.1 and that the plaintiffs are entitled to their lawful shares. He denies formal suggestions put by counsel.
10. Defendant is examined as Dw1, through him Ex.B1 to Ex.B2 are marked,i.e Ex.B1 original will executed by M. Maiilaiah 20.01.1975, Ex.B2 original death certificate of M.Anuradha.
During cross examination of Dw1,The witness states that he studied up to 9th class in Telugu medium and failed SSC. He details the family tree of late M. Mallaiah and Smt. Eswaramma, stating that they had four daughters and three sons, of whom two daughters are deceased, and clarifies that except
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the parties to the suit no other person has any share in the suit schedule property. He states that his father worked as a painter, had no bank account, and that his signatures were available only on loan documents of Munnur
Kapu Sangam and on the alleged will, though the witness has no personal knowledge of the loan particulars. He claims custody of original documents of the suit schedule property, including Ex.A6, which he states was executed by his mother and two sisters after the death of his father, and admits that the stamp papers were purchased by him and the document was typed at the registration office. He admits that Ex.A6 describes only certain heirs and recognizes them as owners of the suit property, and that there is no reference to Ex.B1 in Ex.A6, which he claims was later found. He states that his mother lived with him and handed over property documents, though he admits that originals were not filed in court and that no proper intimation or proof of mutation based on Ex.B1 was produced. He gives inconsistent statements regarding attestation and drafting of Ex.B1, admits he was not present at its execution, cannot read its script, and acknowledges that he first disclosed certain facts regarding witnesses only during cross-examination. He denies all suggestions that Ex.B1 and Ex.A6 are fabricated, that the executants lacked authority, that the documents were created to deprive plaintiffs of their lawful shares, or that notices were received and deliberately not replied to, and
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asserts that Ex.B1 was not filed earlier as it was not in his possession. He denies formal suggestions put by counsel.
11.One Prakash.p is examined as Dw2, during his chief examination he deposed,that he has known Mallaiah for several decades and that Mallaiah, a painter by profession, had three sons and four daughters, including Defendant
No.1 as the youngest son. He testifies that he was present when Mallaiah executed a will on 20-01-1975 in favour of Eshwaramma, written by one
Narsimha, and that Mallaiah, Eshwaramma and others were present at that time. He claims he can identify and does identify the signature of Mallaiah on
Ex.B1, though he admits that he is not an attesting witness to the said will.
12. During cross examination of Dw2, He stated that he was born in 1946, studied up to V class in Telugu medium, and was acquainted with Mallaiah through painting work, frequently visiting his house. He claims to have been present on 20-01-1975 when Ex.B1 was written at about 11.00 a.m., stating that Mallaiah executed the will in favour of Eshwaramma in the presence of
Narsimha and Kistaiah, though he admits he is not an attesting witness. He admits limited knowledge of Mallaiah’s family, poor eyesight, inability to read
Golusu script, and that he cannot clearly see or read Ex.B1 or its contents, having seen Mallaiah’s signature only once. He further admits that he has no documentary proof of his injuries or identity, was called to depose at the
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request of Defendant No.1 shortly before examination, and that he is seeing
Ex.B1 for the first time in court, while denying all suggestions that Ex.B1 is fabricated or that his testimony is false or motivated. He denies formal suggestions put by counsel.
13. Defendant No.4/Vasantha is examined as Dw3, her chief examination affidavit is mirror of written statement. During cross examination of Dw3, she states that late M. Mallaiah had four daughters and three sons, including
Subash, Ashok and Ravinder, and that the plaintiffs are the legal heirs of
Subash. She admits ignorance of her date of birth, the execution and signatories of her father’s will, and states that she was informed by Defendant
No.1 that Subash and Ashok were excluded thereunder. She admits that
Defendant No.1 was present while her chief affidavit was prepared and that certain facts were omitted. She claims no share in the suit schedule property, asserting that she relinquished her share in favour of Defendant No.1 in 2009 through a registered document, though she admits she is unaware of its contents. She denies that no will was executed, that the plaintiffs are entitled to any share, or that her evidence is false or motivated .she denies formal suggestions put by counsel.
14. Defendant No.8/Sravanthi is examined as Dw3, instead of Dw4 she is examined as Dw3 again, hence for clarity she is given Dw3/1, through her
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Ex.B3 is marked i.e original birth certiifcate of E.Sravanthi/D8.
During cross examination, she stated that a B.Com graduate and housewife born on 19-02-1990, states that she knew her maternal grandparents, late M. Mallaiah and Smt. Eswaramma, and that she was informed by her grandmother about a will allegedly executed by M. Mallaiah in 1975, the original of which was shown to her, though she does not know its language, execution details, or her grandfather’s signature. She admits that many material facts regarding the will, alleged ill-treatment by Subash and
Ashok, payment of money to them, her grandmother’s employment, and related details were not pleaded either in her written statement or chief affidavit, and that she last saw Subash and Ashok in the 1970s. She claims awareness that Subash and Ashok purchased properties from amounts allegedly given by Eswaramma, though she admits ignorance of the amounts and absence of receipts or pleadings. She admits that Defendant No.1’s written statement does not mention such payments. She gives inconsistent statements regarding her claim, admitting that while she orally states she wants a share, she has only sought dismissal of the suit in her pleadings. She denies all suggestions that the will is forged, that Eswaramma did not settle her children, that Subash did not relinquish rights, or that she is deposing falsely to support
Defendant No.1.she denies formal suggestions put by counsel.
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15. Daughter of Defendant No.3/third party/priyanka is examined as Dw4,
During cross examination she stated that she was born on 09-10-1991 and a
B.Com graduate, states that her maternal grandfather M. Mallaiah died in 1976 and that her mother Prema is alive and aware of a will allegedly executed by
M. Mallaiah in 1975. She claims to have seen the said will about ten years ago but admits she has never seen M. Mallaiah sign any document, cannot identify the attesting witnesses, and only knows of the will through discussions with her mother and grandmother over the years. She states that the suit relates to property at Aliyabad and supports the claim that it should go to
Defendant No.1 based on the alleged will, asserting that her mother has no share. She admits that many material particulars regarding nuisance by
Subhash and Ashok, payment of money to them, and related details were not stated in her chief affidavit and that no receipts or amounts are known. She claims that her grandmother paid amounts to Subhash and Ashok from her bank account but lacks specifics and documentary proof. She admits she has no authorization from her mother to depose, is giving evidence at the request of Defendant No.8, and denies suggestions that no payments were made, that
Eswaramma lacked capacity, or that she is deposing falsely or merely to support Defendant No.1.she denies formal suggestions put by counsel.
Now issues are answered
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Issue no.1:
16. The plaintiffs contend that late M. Mallaiah died intestate and that neither their father, late Subhash, nor Defendant No.2 were ever excluded from inheritance. They specifically deny the execution and validity of the alleged
Will dated 20-01-1975 (Ex.B1). The defendants, on the other hand, assert that late M. Mallaiah executed a Will bequeathing the suit schedule property exclusively in favour of his wife, Smt. Eshwaramma, intentionally excluding
Subhash and Ashok Kumar due to their alleged misconduct.
17. The entire defence of Defendant No.1 is founded upon Ex.B1. Therefore, the burden squarely lies upon the defendants, particularly Defendant No.1 as propounder of the Will, to prove its due execution, attestation, and genuineness. Under Sections 101 to 103 of the Indian Evidence Act, 1872, the burden of proof lies on the party who asserts a fact. Since the defendants assert exclusion by virtue of a Will, they must strictly prove the same.
18. The proof of a Will is governed by Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The propounder is required to establish that the testator signed or affixed his mark to the Will, that it was attested by at least two witnesses, that the attesting witnesses signed in the presence of the testator, and that at least one attesting witness has been examined to prove its execution.
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19. Further, where suspicious circumstances exist such as the exclusion of natural heirs, delayed production of the Will, or active involvement of beneficiaries the propounder bears the burden of removing such suspicion by providing clear, cogent, and satisfactory evidence.
20. In the present case, none of the attesting witnesses to Ex.B1 were examined. DW1 admittedly was not present at the time of execution and could not read the script of the Will. DW2, though claiming presence, categorically admitted that he is not an attesting witness. His evidence is further weakened by admissions regarding poor eyesight, inability to read the script, and that he saw Ex.B1 for the first time in Court. DW3, DW3/1, and DW4 have no personal knowledge of execution and their evidence is purely hearsay. The alleged Will surfaced belatedly and was not initially produced. No satisfactory explanation has been offered regarding its custody and delayed production. The exclusion of natural heirs namely Subhash and Ashok Kumar is itself a suspicious circumstance requiring strict proof. However, no independent evidence of alleged misconduct or ill-treatment has been placed on record.
Significantly, no mutation or official record reflects devolution of title on the basis of Ex.B1. The suit schedule property continues to stand in the name of late M. Mallaiah. No contemporaneous conduct consistent with the existence of the Will has been established.
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21.Learned counsel for the plaintiffs, placing reliance on Shivakumar and
Others v. Sharanabasappa and Others 2020 (3) ALD 39 (SC), Janaki Narayan
Bhoir v. Narayan Namdeo Kadam 2003 (2) SCC 91, and Benga Behera and
Another v. Braja Kishore Nanda and Others 2007 (9) SCC 728, contended that the law relating to proof of a Will is well settled and that the burden lies heavily upon the propounder to establish its due execution and genuineness in accordance with law.
22.This Court finds considerable force in the said submission. In Janaki
Narayan Bhoir, the Hon’ble Supreme Court categorically held that mere marking of a Will as an exhibit does not dispense with the mandatory requirement of proving its execution in the manner contemplated under Section 68 of the Evidence Act, namely by examining at least one attesting witness. In the present case, Defendant No.1, being the propounder of the alleged Will, has failed to examine any of the attesting witnesses. In the absence of such mandatory proof, the Will cannot be said to have been proved in accordance with law.
23.Further, in Benga Behera, the Hon’ble Supreme Court reiterated that when suspicious circumstances surround the execution of a Will, the onus upon the propounder becomes heavier, and such suspicion must be satisfactorily dispelled before the Court can accept the Will as genuine. In the case on
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hand, several suspicious circumstances remain unexplained the Will was allegedly in the custody of Defendant No.1 but its custody has not been properly explained it was produced at a belated stage without any satisfactory reason and significantly, natural heirs namely the father of the plaintiffs and
Defendant No.2 have been excluded without any convincing explanation. Such exclusion of natural heirs is itself a suspicious circumstance which casts doubt on the genuineness of the document.
24.In Shivakumar, the Hon’ble Supreme Court stressed that propounders must prove execution and remove all suspicious circumstances surrounding a will unreliable attestation or unexplained doubts invalidate it despite due execution.
25.Therefore, in the absence of proof of due execution and in view of the unexplained suspicious circumstances, the alleged Will cannot be relied upon.
Consequently, succession to the suit schedule property must be governed by intestate succession under the Hindu Succession Act, and the plaintiffs are entitled to succeed to their lawful share.
26. In view of the above discussion, this Court holds that the defendants have failed to discharge the burden cast upon them by law. The Will dated 20-01- 1975 (Ex.B1) has not been proved in accordance with Section 63 of the Indian
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Succession Act and Section 68 of the Indian Evidence Act. The suspicious circumstances surrounding its execution remain unexplained. It is held that the father of the plaintiffs and the second defendant were not removed from inheritance by the alleged Will dated 20-01-1975, and the Will cannot be said to validly exclude them from their lawful share in the suit schedule property.
Accordingly, the issue No.1 is answered in favour of the plaintiffs.
Issue no.2 and 3:
27. Now coming to Issue No.2 and 3. The defendants contend that Smt.
Eshwaramma, being the absolute owner of the suit schedule property by virtue of the Will executed by late M. Mallaiah on 20-01-1975, had the legal authority to execute a registered Gift Settlement Deed (Ex.A6) transferring her property rights to Defendant No.1. They rely on the registered nature of the deed to assert that the property was lawfully transferred and that the plaintiffs, having allegedly received monetary benefits, cannot now claim a share.
28. The plaintiffs, however, dispute both the authenticity and binding effect of the Gift Deed. They maintain that the deed was executed without proper notice to them and by suppressing their existence as legal heirs. PW1 and PW2 specifically deposed that they had no knowledge of the transaction at the time
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of execution, no consideration or receipts were given, and the deed was executed in a manner intended to deprive them of their lawful inheritance.
29. A careful analysis of the evidence reveals several elicitation's, DW1 admits that the stamp papers for Ex.A6 were purchased by him, and the deed was typed at the registration office, indicating significant involvement by the beneficiaries rather than the independent donor. DW3, DW3/1 and DW4 confirm awareness of the deed but admit ignorance of the contents and execution formalities. No attesting witnesses to the Gift Deed were examined in court, and there is no independent corroboration regarding the consent of all heirs or any consideration. The deed itself describes only certain heirs and makes no reference to Ex.B1, the 1975 Will of M. Mallaiah, which is critical because the Will is claimed to establish Smt. Eshwaramma’s ownership.
30. Legally, under the Transfer of Property Act, 1882, a valid gift of immovable property requires the donor to be competent, the gift to be voluntary, acceptance by the donee during the lifetime of the donor, proper identification of donor, donee, property, and intent, and execution in accordance with law. While registration is a requirement, it alone cannot cure defects such as lack of proper knowledge, absence of attesting witnesses, or suppression of legal heirs’ rights. In the present case, the evidence shows that the execution of Ex.A6 was largely controlled by Defendant No.1, that the
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donor’s other heirs were not parties to the deed, and that no independent verification of consent or consideration is available.
31. Considering the above, there exist serious doubts regarding whether the
Gift Settlement Deed can operate to divest the plaintiffs of their lawful inheritance rights. The deed, while registered, suffers from gaps in execution, absence of independent witnesses, and lack of consent or acknowledgment from all legal heirs. These deficiencies raise substantial questions regarding its validity and binding effect on the plaintiffs.
32. Hence the registered Gift Settlement Deed dated 05-05-2009 (Ex.A6), in view of the evidentiary gaps, non-participation of the plaintiffs, absence of attesting witnesses, and inconsistencies in the defense evidence, cannot be held to conclusively extinguish the plaintiffs’ rights. Therefore, the plaintiffs cannot be denied their share in the suit schedule property solely on the basis of this deed.
33. The contention of Defendants 3 and 4 that they are not entitled to any share in the suit schedule property is primarily founded on the argument that the registered Gift Settlement Deed dated 05-05-2009 (Ex.A6) executed by Smt.
Eshwaramma in favour of Defendant No.1 divested them of their rights.
However, on careful examination of the evidence, it is clear that the alleged
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Gift Deed suffers from significant infirmities. The plaintiffs have specifically challenged its execution and binding effect, and none of the attesting witnesses were examined. DW1 admits that he purchased the stamp papers and had the deed typed at the registration office, indicating substantial involvement by the beneficiaries themselves rather than independent execution by the donor.
Further, DW3, DW3/1, and DW4 confirm only their awareness of the deed but admit ignorance of its contents and execution formalities. There is no independent evidence to show that the plaintiffs or other legal heirs consented to the purported gift or received any consideration, as required under the
Transfer of Property Act, 1882.
34. Legally, a valid gift requires the donor to be competent, the gift to be voluntary, and acceptance by the donee during the lifetime of the donor.
Registration alone cannot cure defects such as suppression of legal heirs or lack of attesting witnesses. Since the Will dated 20-01-1975 (Ex.B1) itself has not been proved, Smt. Eshwaramma cannot be treated as the absolute owner with authority to dispose of the property independently. Consequently, the Gift
Deed cannot operate to extinguish the rights of the plaintiffs or any other heirs. Reliance placed by the plaintiffs’ counsel on Thamma Venkata
Subbamma v. Thamma Rattamma, (1987) 3 SCC 294 is apt, as the Supreme
Court held that a purported transaction that seeks to exclude natural heirs
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without proper notice, consent, or consideration is not binding.
35. In view of the above, Defendants 3 and 4 cannot claim that the plaintiffs’ rights in the suit schedule property were extinguished by the Gift Deed, and their plea of relinquishment or exclusion is rejected. They are entitled to their respective shares under intestate succession along with the plaintiffs, Defendant
No.1, Defendant No.2, and other legal heirs. Accordingly, Issue No. 2 and 3 is answered against Defendants and in favour of plaintiff.
Issue no.4:
36. Now coming to Issue No 4. Under Section 8 of the Hindu Succession Act, 1956, when a male Hindu dies intestate, his property devolves upon his Class I heirs. Late M. Mallaiah died intestate leaving behind his widow,
Smt. Eswaramma, three sons, and three daughters. Accordingly, his estate devolved equally upon these seven Class I heirs, each being entitled to one- seventh (1/7) share in the suit schedule property.
37.Subsequently, upon the death of Smt. Eswaramma intestate, her one- seventh (1/7) share devolved in accordance with Section 15(1)(a) of the Act, which provides that the property of a female Hindu dying intestate shall devolve upon her sons and daughters. At the time of her death, she was survived by her six children. Therefore, her one-seventh share was equally divided among the six children, each receiving one-forty-second (1/42) share
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out of her interest.
38.Thus, each child, who had originally received one-seventh (1/7) share from the father, became entitled to an additional one-forty-second (1/42) share from the mother. On calculation, one-seventh is equivalent to six-forty-seconds (6/42), and upon adding one-forty-second (1/42), the total share of each child works out to seven-forty-seconds (7/42), which simplifies to one-sixth (1/6).
Therefore, after the demise of both parents, each of the six children of late M.
Mallaiah and Smt. Eswaramma is entitled to one-sixth (1/6) share in the suit schedule property.
39.If one of the sons, namely Subhash, is deceased, his one-sixth (1/6) share would devolve upon his legal heirs. In the present case, his three sons, being the plaintiffs, would equally inherit his one-sixth share, each being entitled to one-eighteenth (1/18) share in the suit schedule property. The remaining surviving children are each entitled to one-sixth (1/6) share.
Accordingly, issue no.4 is answered in favour of plaintiff.
Issue no.5:
40. Now coming to Issue No.5, The plaintiffs claim mesne profits of
Rs.25,000/- per month, alleging exclusive possession of the suit property by
Defendant No.1. However, as co-heirs under Hindu law, all parties have constructive joint possession until final partition. The defendants have not been
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shown to have wrongfully ousted the plaintiffs, and no documentary evidence such as rent receipts or tenancy agreements was produced to substantiate the claimed amount. Mere management or receipt of income by one co-heir does not constitute wrongful possession. Therefore, the plaintiffs are not entitled to mesne profits. Accordingly, issue no.5 is answered against the plaintiff.
Conclusion:
41. In view of the foregoing discussion and findings on the issues, the Court holds that the plaintiffs are entitled to their lawful share in the suit schedule property under intestate succession. The alleged Will dated 20-01-1975 (Ex.B1) and the Gift Settlement Deed dated 05-05-2009 (Ex.A6) have not been proved and cannot divest the plaintiffs of their rights. The suit schedule property shall be partitioned among all legal heirs, with the plaintiffs, defendants, and other heirs receiving their respective shares as determined. The plaintiffs’ suit is therefore partly decreed in terms of their entitlement to property shares, while claims for separate mesne profits are rejected. Accordingly issues are answered above.
Issue no.6:
42. In the Result, the suit is partly decreed. The suit schedule property shall be divided into six (6) equal shares with defendant no.1 to 4 and Shoba D/o
M.Mallaiah being allotted 1/6th share each and plaintiffs being legal heirs of
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deceased Subhash, are together entitled to one-sixth (1/6) share, and each plaintiff is entitled to one-eighteenth (1/18) share. Further, The registered Gift
Settlement Deed dated 05-05-2009 is declared null and void and not binding on the plaintiffs. Further, The claim of the plaintiffs for separate mesne profits is rejected. The parties are at liberty to seek final decree proceedings for division of the property by metes and bounds. In the circumstances of the case, each party shall bear their own costs.
(Typed by me on my Laptop, corrected in soft copy and pronounced by me in the open Court, on this the 19th day of February, 2026).
IV SENIOR CIVIL JUDGE,
FAC VII SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:FOR DEFENDANT: PW1: Smt. M. Jaishree.DW1: Sri. Mudham Ravinder. PW2: Sri. M. Susheel Kumar.DW2: P. Prakash. DW3:Vasantha DW3/1:T. Sravanthi. DW4: A. Priyanka.
DOCUMENTS MARKED
FOR PLAINTIFFS:
Ex.A1:Certified Copy of the Sale Deed (in Urdu), Dt.19-3-1349 F
Ex.A2:True English Translation copy of Document No.1, Dt.19-3-1349 F.
Ex.A3:Original Death Certificate of M. Subhash, Dt.30-03-2009.
Ex.A4:Transfer Certificate of Mr. M. Subhash, Dt.26-09-1968.
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Ex.A5:Copy of Election Card of M. Subhash, Dt.25-04-1996.
Ex.A6:Certified Copy of Gift Deed, Dt.05-05-2009.
Ex.A7:Office Copy of Legal Notice, Dt.03-04-2012.
Ex.A8:Postal Acknowledgment of Defendant No.3, Dt.09-04-2012.
Ex.A9:Postal Acknowledgment of Defendant No.2, Dt.13-04-2012.
Ex.A10:Original Valuation Certificate, Dt.18-04-2012.
FOR DEFENDANTS:
Ex.B1:Original Will Deed and last testament executed by M. Mallaiah, father of the Defendant No.1 in favour of his wife in Telugu with English Translation, Dt.20-01-1975.
Ex.B2:Original Death Certificate of M. Anuradha, Dt.19-02-1996.
Ex.B3:Original Birth Certificate of E. Sravanthi/D8.
IV SENIOR CIVIL JUDGE,
FAC VII SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.