O.S.No.30/2021 1 ACJ (SD) FTC Court, BDL.,
Dated:05.02.2026
APKD140000812021
IN THE COURT OF ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) (FTC),
RAJAMPET AT BADVEL.
Present : Smt. Y.J. Padmasree,
Civil Judge (Senior Division), Badvel.
FAC: Additional Civil Judge (Senior Division) FTC Court, Badvel
Thursday, this the 05 th day of February, 2026.
Original Suit No.30 of 2021
1. Boyakuntla Peeramma, W/o Chinna Masthan, aged about 60 years, Dudekula, House Wife, resident at Arkana Goduguru Village, B.Kodur Mandal, Y.S.R.Kadapa District.
2. Boyakuntla Hussainamma @ Chinna Ramakka, W/o Babu Saheb, aged about 58 years, Dudekula, Housewife, resident at Kondapalli Village, B.Kodur Mandal, YSR Kadapa District.
3. Palakondu Subbamma, W/o Pedda Peeraiah, aged about 55 years, Dudekula, Housewife, resident at P.Chennupalli Village, B.Mattam Mandal, YSR Kadapa District. … Plaintiffs
Vs.
1. Pulimaddi Peeramma @ Balamma, W/o P.Siddaiah, aged about 48 years, Dudekula, Housewife,
2. Pulimaddi Siddeswar, S/o P.Siddaiah, aged about 29 years, agriculturist.
3. Prabhalaveeti Dasthagiri, S/o Peeraiah, aged about 25 years, Dudekula, Business,
4. Prabhalaveeti Pullakka, W/o Shaik Meera Vali, aged about 22 years, Dudekula, Housewife Defendant No.1 to 4 are resident at Thottigaripalli Village, Chennampalli Post, Badvel Town and Mandal, YSR Kadapa District.
5. The Mandal Tahsildar, Badvel (Proforma Party)
6. The sub-Registrar, Badvel (Proforma party) …Defendants
This suit has come up before me on 25-09-2025 for final hearing in the presence Sri V. Subba Reddy and Sri S. Ezaz Basha , learned counsel for Plaintiffs and of Sri P.V.N.Prasad, learned counsel for defendant No.1 & 2 and Defendant No.3 to 6 are remained exparte, upon perusing the material papers on record and after hearing on both sides and having stood over for consideration till this day, this Court delivered the following:-
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J U D G M E N T
1.This suit is a suit filed by the plaintiffs for partition of the suit schedule property into 5 (Five) equal shares and allot one share to the each to the plaintiffs
No.1 to 3 and allot one share to Defendant No.1 and 2 and one share allot to
Defendant No.3 and 4 taking into consideration of good and bad qualities, declare the registered gift deed vide Doc.No.4534/2021 as sham and nominal and not binding on the plaintiffs, grant of mesne profits, permanent injunction and for the costs of the suit.
2.The brief averments of the plaint are as follows:
i) Originally the Item No.1 of the plaint schedule property belongs to late Cherukuri Pakeer Saheb S/o Peer Saheb resident of Thottigaripalli of Badvel
Town who is the father of the plaintiffs and also defendant No.1 and maternal grand father of Defendant No.2 to 4. Defendant No.2 is the son of Defendant No.1, 3 and 4 are the son and daughter of Prabhalaveeti Pedda Ramakka who is no more. The said C.Fakkir Sab purchased the said property from Pathipati
Narasaiah S/o Ramaiah and Podapati Narasaiah S/o Pedda Venkatadri through a registered sale deed dated 10.09.1964 vide Doc.No.1290/1964 for valid consideration of Rs.1,00,000/- and took possession of the same and since then he had been in possession and enjoyment of the same till his death in the year 2000.
He also mutating his name in revenue records and paid cist to the Government.
ii) It is further pleaded that the said C.Fakkir Saheb has got 6 (Six) daughters namely 1) Boyakuntla Peeramma 2) Boyakuntla Hussainamma @
Chinna Ramakka 3) Palakondu Subbamma 4) Prabhalaveeti Pedda Ramakka who died in the year 200 5) Pulimaddi Peeramma @ Balamma and 6) Cherukuri
Lakshumma who is not married and died in the month of March-2001. During life time C.Pakkir Saheb, his 5th daughter Pulimaddi Peeramma @ Balamma was living along with him as his wife predeceased and look after his daily needs as he became very old. Taking the advantage of the same, she created sham and nominal agreements in her favor as if Fakkir Saheb executed the agreement in her favor and she also managed the revenue authorities and got mutated her name in
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the revenue records pertains to Item No.1 also mutating her name in panchayath record pertaining to Item No.2 i.e., house property.
iii) It is further pleaded that the defendant No.1 Pulimaddi Peeramma @ Balamma to defeat the rights of all the plaintiffs and the defendant No.3 and 4 got executed a sham and nominal registered gift deed in favour of her son i.e.,
Defendant No.2 on 28.09.2021 vide Doc.No.4534/2021 without having any right, title and possession over the item No.1 of the plaint schedule property. After knowing the same the plaintiffs and Defendant No.3 and 4 who are co-sharers to the plaintiff questioned the defendant No.1 and 2 about their lawful sharers for which plaint schedule properties as there are also L.Rs along with Defendant No.1 and 2. They also claimed each 3/5th share in both plaintiffs as they are also admitted to be in joint possession and enjoyment of the plaintiffs, taking the yield of each respective shares. But the Defendant No.1 refused for partition of the plaintiffs. The Mandal Tahsildar, Badvel in collusion with Defendant No.1 and 2 basing on the gift deed dated 28.09.2021 trying to mutated the name of Defendant
No.2 in the place of Fakkir Saheb who is the father of the plaintiffs. The Sub-
Register of Badvel in collusion with Tahsildar trying to further register item No.1 of the plaintiff schedule in the name of 3rd parties with false and fabricated documents. Hence, the plaintiffs constrained to file the present suit.
3. On the other hand, the defendant No.2 filed written statement and the same was adopted by Defendant No.1. D3 to D6 are remained exparte.
The brief averments of the written statement of Defendant No. 2 are as follows
These defendants admitted that the said Pakkir Saheb is the father of the plaintiffs and Defendant No.1 as well as the marital grand of father of
Defendant No.2 and 3 and he was the absolute owner of the suit schedule properties. Further these defendant pleaded that the parties to the suit are
Dudekula by caste and profess Islam by embracing the Muslim religion and as such they are Governed by Muslim Law. The said Pakker Saheb residing with
Defendant No.1 along with his wife Subbamma as no one was there to look after their welfare and as such Defendant No.1 look after their welfare till their demises
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up to their satisfaction and even performed their last ritual. Having satisfied with the services rendered by the defendant No.1, her father Fakkir Saheb along with his wife Subbamma had gifted the suit properties to the defendant No.1 and her husband Siddaiah by virtue of written declaration dated 21.01.2000 in the presence of respectable persons as per the customs prevailed in the Muslim
Community since they are governed by Muslim Law by delivering the possession of the suit properties while handing over the relevant documents, the same was accepted by the Defendant No.1 and her husband and took the delivery of possession of the suit schedule properties on the same day and since then they alone have been in lawful possession and enjoyment of the same with absolute rights exclusively by raising crops in Item No.1 of the suit properties from time to time according to their convenience by paying land revenue to the Government and residing in Item No.2 of the suit properties to the knowledge of everybody in the village including the plaintiffs and Defendant No.3 and 4 as well their mother.
Therefore except the defendant No.1 and her husband Siddaiah none else including the plaintiffs, the defendant No.3 and 4 or their mother have any manner of right or possession over the suit properties.
It is further pleaded that after recognizing her lawful possession and enjoyment over the item No.1 of the suit properties, the revenue authorities have mutated the all revenue accounts in her name regarding the item No.1 of the suit properties and issued title deed cum pattadar pass book to her name vide patta/khatah No.1390. The panchayath authorities have mutated the records concern in respect item No.2 of the suit properties in the name of husband of
Defendant No.1 and later the same continued by the Badvel Municipality till date.
The item No.2 of the suit properties stands in the name of husband of Defendant
No.1 vide D.No.9-3-86 of Thottigaripalli. Therefore the written declaration of the gift
dated 21.01.2000 is acted upon the parties to the same and thereby defendant
no.1 and her husband have become the absolute owners of their respective items according to their understanding. Thereafter the defendant No.1 has gifted the item No.1 of the suit properties to Defendant No.2 on 28.09.2021 under a registered gift deed vide Doc.No.4534/2021 and delivered possession of the same
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to him on the same day, having accepted the said gift, the defendant No.2 alone has been in lawful possession and enjoyment of the Item No.1 of the suit properties to the knowledge of everybody in the village including the plaintiffs and the defendant No.3 and 4 and his request for mutation is pending. The plaintiffs have no right to claim any share in respect of the suit properties being governed by muslim law, therefore the plaintiff properties are not entitled for partition and relief of declaration to declare the registered gift deed document No.4534/2021 as shame and nominal, hence, sought for dismissal of the suit with exemplary costs.
4.Based on the above pleadings, the following issues are framed for trial:
1) Whether the both parties are governed by the Muslim Law as pleaded by the Defendant No.1 and 2 in their written statement?
2) Whether the plaintiffs are entitled for partition as prayed for?
3) Whether the plaintiffs are entitled for declaration to declare that registered gift deed vide Doc.No.4534/2021 executed by Defendant No.1 in favour of Defendant No.2 is nominal and not binding on the plaintiffs as prayed for?
4) Whether the plaintiffs are entitled for mesne profits as prayed for?
5) Whether plaintiffs are entitled for permanent injunction as prayed for?
6) To what relief?
5. To prove the case of the plaintiffs, the plaintiff No.2 examined as
P.W.1, besides examining PW.2 and PW.4 and got marked Ex.A1 to Ex.A5. The evidence of PW.3 is eschewed as per the memo filed by the learned counsel for plaintiff.
6. On behalf of the defendants, the defendant No.2 himself examined as
DW.1 besides examining the DW.2 and got marked Ex.B1 to Ex.B6.
7.Heard both sides. Perused the record.
8. Issue No.1:
According to the case of the plaintiffs that there are Dudekula by caste but the plaint is silent whether there are Governed by the Hindu Law or Muslim
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Law. On the other hand as per the pleadings of the defendants that though they are Duddekula by caste there are Governed by Muslim Law and profess Islam and as such the Muslim Law is applicable to the present case. At the time of arguments the learned counsel for the plaintiff submitted that the Court can consider either Hindu Law or Muslim Law and they have no objection in this regard. Further, on this aspect the learned counsel for plaintiff relied upon a decision
In Bodanapu Khaseem Vs Bodanapu Khaderaiah and Ors reported in 1996 (1) ALT 736 wherein our Hon’ble High Court held that ; “Agreeing with the trial Court, I reach to the conclusion that the appellant- plaintiff has failed to establish that the parties to the suit have adopted the Hindu Law of succession and inheritance as their customary law and, therefore, they are governed by it. I also hold that the finding of the learned lower Court in respect of issue No.2 is correct that the parties are Muslims and they are governed by the Muslim Law”. Since the plaintiffs did not raise any objection to consider that they are governed by Muslim Law and as per the version of defendant they Profess Islam as such it can be considered that there are governed by Muslim Law and Muslim
Personal Law applicable to them. Accordingly this issue is answered.
9.Issue No.2:
It is the specific case of the plaintiffs that originally their father and father of Defendant No.1 maternal grand father of Defendant No.2 to 4 namely
Fakkir Saheb was the original owner of the item No.1 plaint schedule properties having purchased the same through a registered sale deed dated 10.09.1964 vide
Doc.No.1290/1964 and since then he had been in possession and enjoyment of the same by mutating his name in the revenue records. During his life time the said Fakkir Saheb had been residing along with his 5th daughter out of his 6 (Six) daughters due to old age and taking advantage of the same his 5th daughter created sham and nominal agreements in her favor and accordingly she also got mutated her name in the revenue records in respect of the item No.1 and her husband name in Panchayat records in respect of item No.2 of the suit schedule
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property. Thereafter the Defendant No.1 to defeat the rights of the plaintiffs got executed a sham and nominal registered gift deed in favour of Defendant No.2 who is her son through a registered gift deed dated 28.09.2021 without having any right and title and possession over the item No.1. The plaintiffs being co-sharer, they are also entitled a share in the plaint schedule property and though they requested for partition of the same but the defendant No.1 and 2 refused for the same. Hence, they constrained to file the present suit.
10.On the other hand the case of the defendant No.1 and 2 is that during the life time of said Fakkir Saheb he gifted the suit property to defendant No.1 and her husband Siddaiah, by executing a written declaration dated 21.01.2000 in the presence of respectable persons as per their customs prevailing in their Muslim
Community and having accepted the same they took the delivery of the possession of the suit properties on the same day and they have been in lawful possession and enjoyment of the said properties. Later the name of the Defendant
No.1 mutated in the revenue records by the revenue authorities recognizing her possession and enjoyment. Further the name of the husband of Defendant No.1 namely Siddaiah mutated in the panchayath records. Later Defendant No.1 executed the gift deed in respect of item No. 1 of the suit properties in favour of
Defendant No.2 through a registered gift deed dated 28.09.2021. Therefore the the plaintiffs are not entitled for partition of the suit properties.
11.It is admitted fact that originally the Fakkir Saheb was the absolute owner of the item no.1 of the plaint schedule properties having purchased the same through a registered sale deed. It also not disputed in respect of relationship between the parties. The plaintiffs, Defendant No.1 and 4 are the daughters of said
Fakkir Saheb, Defendant No.2 is the son of Defendant No.1. Further according to the plaintiffs, Defendant No.5 and 6 are only formal parties and they are not seeking any relief against them.
12.To prove their contention the plaintiff No.2 examined as PW.1 and she reiterated the contents of the plaint and relied upon Ex.A1 to Ex.A4. As per the testimony of PW.1 herself and plaintiff No.2 and 3, Defendant No.1 are the daughters of late Fakkir Saheb and during his life time he purchased the item No.1
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of the plaint schedule property through a registered sale deed 10.09.1964 from his vendors and since then he had been possession and enjoyment the same till his death in the year 2001. For which the plaintiff relied Ex.A2, Ex.A2 is certified copy of the registered sale deed 10.09.1964. There is no dispute in respect of Ex.A2 sale deed, Ex.A1 is certified copy of gift deed, dt.28.09.2021 said to have been executed by defendant no.1 in favor of defendant No.2 in respect of item No.1 of the plaint schedule properties. Ex.A3 is the Extract Register of holding which show the name of the their father Fakkir Saheb showing his ownership. Ex.A4 is
Genealogical tree of Fakkir Saheb. Further, there is no dispute in respect of Ex.A3 and Ex.A4.
13.According to the evidence of PW.1 his father has got 6 (Six) daughters i.e., plaintiff No.1,3, herself, Defendant No.1 and one Prahalaveeti pedda Rakka and Pulimaddi Veeramma and they died in the year 2000 and 2001 respectively. During his life time of the said Fakkir Saheb, he had been living along with his 5th daughter Pulimaddi Peeramma i.e., defendant No.1 as his wife had died leaving alone and look after their daily needs as he become old and taking advantage of the same, the defendant No.1 created a sham and nominal agreements as if their father executed the agreement in her favour and managed the revenue authorities by showing the said agreement and also Gramma panchayath record and got mutated her name in the revenue records pertaining to the item No.1 of the plaint schedule properties and also panchayath records pertaining item No.2 of the plaint schedule properties. The defendant No.1 has no right over the plaintiffs and further to defeat their rights and rights of defendant
No.3 and 4, defendant No.1 got executed a sham and nominal registered gift
dated 28.09.2021 Doc.No.4534/2021 which is marked as Ex.A1 in respect of item
No.1 of suit schedule properties in favour of Defendant No.2. After knowing the same they questioned the Defendant No.1 and 2 and asked for partition but in vain.
14.To support her contention plaintiff got examined PW.2 who said to be son of PW.1 and he also stated on the same lines as that of PW.1. During course
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of trial the evidence of PW.3 is achieved from the record as per the memo filed by the learned counsel for plaintiffs.
15.Further PW.4 who said to be third party and he also deposed on the same lines as that of PW.1. According to the evidence of PW.4 during his life time the said Fakkir Saheb who is his friend executed a un-registered Will on bequeathing item No.1 and 2 of the properties equally to all his daughters. The un- registered will dated.06.07.1990 was executed in his presence at his house at
Thottigaripalli Village of Badvel town and he can identify his signature on the said will. During cross-examination PW.4 admitted that he did not attest the Will and he does not know how the said Will was traced out by the plaintiffs. Further PW.4 during chief-examination stated that the said Fakkir Saheb is his friend and where as coming to cross-examination he stated that the said Fakkir Saheb is not his friend.
16.The learned counsel for defendant argued that already the said Fakkir
Saheb executed a document i.e., written declaration in favor of defendant No.1 and as such Ex.A5 Will is not a legally valid and he had not executed any such Will and it is a created document.
17.Admittedly, the plaintiff and defendant Nos.1 and 2 claiming the right and title to the property under Fakkir Saheb and they are Muslims by religion and their personal law is applicable to the alleged Will. As already stated in Issue No.1 though PW.1 stated that they are belongs to Dudekula by community and they have no objection to considered the present case under Muslim law.
18.On this aspect it is relevant to mention the legal position regarding the execution of Will by a adult muslim. A muslim to execute the Will should be a major and the person unsound mind is ineligible to execute the Will. Whenever owner of the property dies intestate, his property devolves not on heirs according to the scheme of inheritance, but on the legatee who takes bequest under Will.
The Mohammad law imposes certain restrictions on the testimantory power of bequest. I) A Mohammadn both in Hanafi and Shia allows the owner to dispose of a Will by a Will only 1/3rd of net assets after allowing the debts and funeral expenses of testator and at-least 2/3rd of the estate should thus be available for
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distribution among agents. Therefore, a Sunni testator cannot bequeaths his property more than 1/3rd without consent of his heirs. ii) A Sunni testator cannot bequests his property to one would be his heir on his death. There is because if one of his heirs gets property under Will the other heir would be prejudiced to the extent. These limitations are imposed in the interest of case, they may be waived by heirs.
19.Further, as per Mohammadan digest of Sunni code I) a bequest to a stranger to the amount of 1/3rd of once property is valid without consent of his or her heirs, but a bequest to him more than 1/3rd is not valid unless the consent is given by all the heirs of the testator after his death. ii) a bequest of any portion of his estate to one or some of heirs is not valid except with consent by the rest of the heirs. A bequest to a heir is not lawful without consent of other heirs. Therefore, in view of the principles of Will in a Hanafi Mohammadan law a mohammadan she or he cannot bequeath his property to one or any of his legal heirs without consent of other legal heirs. Therefore, it makes clear that the Muslim following Hanafi law shall not bequeath her or his property to any or one of the heirs without consent of other heirs. In the present case on hand there is no reference in Ex.A5 Will that a prior consent was obtained from all the legal heirs of Fakkir Saheb to bequeath the property or properties to all of them. Even to ascertain whether any implied consent was given no material is placed by the plaintiffs that after death of Fakkir
Saheb, all his legal heirs consented for the bequeath. It appears that Ex.A5 Will has seen light of the day for the first time during cross-examination of PW.1. There is no reference about the Ex.A5 Will either in the pleadings of the plaintiffs or even at the time of filing of chief-examination affidavit of PW.1. As per Ex.A5 Will it was allegedly executed on 06.07.1990 but the suit was filed in the year 2021 but there is no reference about the alleged Will in the plaint. Further, as per above discussion the plaintiffs failed to prove Ex.A5 Will and it is not accordance with the rules of Mohammadan law. Therefore, it cannot be taken into consideration.
20.On this aspect the learned counsel for defendant Nos.1 and 2 relied upon a decision ;
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(i) In Srinivas Raghavendrarao Desai (Dead) by L.Rs Vs
V.Kumar Vaman Rao @ Alok and Ors., reported in 2024 SAR (Civ) 415
wherein The Hon’ble Supreme Court held that ; “ There is no quarrel with the proposition of law that no evidence could be led beyond pleadings. It is not a case in which there was any error in the pleadings and the parties knowing their case fully well had led evidence to enable the Court to deal with that evidence”.
(ii) In V.Srinivasu and others Vs. D.Subba Rao reported in 2024 (4) ALD 1 (AP) wherein our Hon’ble High Court held that ; “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 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”.
(iii) In Sudhakara Reddy Vs Lakshmamma reported in 2014 (4) ALT 647 wherein our Hon’ble High Court held that ; “In order to resolve this issue, this court is placing reliance on the decision in Yarala Malleshwari V Annathula Sayamma (2) 2006 (6) ALT 523 (FB), Relevant Para – 26 is extracted hereunder.
26. It is a misconception that in every situation, a person who suffers injury by reason of a document can file a suit for cancellation of such written statement. Two conditions must exist before one invokes Section 31 of Specific Relief Act. These are the written instrument is void of voidable against such person; and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury. Insofar as Section 34 of the Specific Relief Act is concerned, it is no doubt true that a person entitled to any right as to any property can seek declaration that he is so entitled to such right. Here again the person who claims the right to property can institute a declaration
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suit only when the defendant denies or interested to deny the title of the plaintiff. The difference between the two situations is glaring. In one case, cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration”.
(iv) In Meena Pradhan Vs Kamla Pradhan on 21.09.2023
reported in Civil Appeal No.3351 of 2014 wherein Hon’ble Supreme
Court held that ; “Section 63 of the Indian Succession Act, 1925 Execution of unprivileged wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) 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 the signature of such other person; and each of the witnesses shall sign the Will in the presence o 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. Section 68 of Indian Evidence Act 1872 Proof of Execution of document required by law to be attested 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, and subject to the process of the Court and capable of giving evidence.
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21.After careful reading of above referred decision it came to light that the principles laid down by the Hon’ble Supreme Court are applicable to the present case on hand. In the present case as already stated supra there is no pleadings with regard to the Ex.A5 Will. For the first time during cross examination of PW.1 only it was stated about the alleged Will. Therefore, the evidence without pleadings cannot be taken into consideration as per the established principles of law.
22.In the present case on hand as already stated supra the plaintiffs relied upon Ex.A5 Will said to have been executed by said Fakkir Saheb. As per the recitals of the Will all his daughters will share his property equally after his demise. Therefore, the plaintiffs failed to prove Ex.A5 Will and it is not in accordance with the rules of Muslim law.
23.On the other hand defendant No.2 examined as DW.1 who said to be son of defendant No.1 and he reiterated the contents of the written statement. As per the testimony of DW.1 they belongs to Dudekula by caste and performing their marriages as per customs and rites of Muslim religion and they are bound by
Muslim law. Further, he stated that defendant No.1 i.e., his mother is the daughter of Fakkir Saheb, after 6 years of marriage his mother along with her husband are residing along with his grandparents at Thottigaripalli village and looking after their welfare. During the life time of his grandparents, they gifted the suit schedule property to his mother orally in the presence of respectable persons as per the customs prevailed in Muslim community and delivered possession to her.
Accordingly, his mother accepted the gift on the same day and enjoying the same with absolute rights by paying land revenue and house tax to the government authorities with the knowledge of other daughters of his maternal grandfather
Fakkir Saheb. On the application of his mother, the revenue authorities issued
Pattadar pass book and title deed in respect of Item No.1 of the suit schedule property and by that time plaintiffs and D3, D4 did not raise any objection. The
Municipal authorities also collecting house tax from his mother on due enquiry in respect of the house gifted by his maternal grandfather to his mother. After death of his maternal grandparents, his mother alone enjoying the suit schedule
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properties with absolute rights with the knowledge of everybody in village including the plaintiffs and defendant Nos.3 and 4. He further stated that due to love and affection his mother executed a regd. Gift deed in respect of Item No.1 of suit schedule property in his favor in the year 2021 and he accepted the gift on the same day and enjoying the same with absolute rights.
24.To support his contention he relied upon Exs.B1 to B6, Ex.B1 is the original regd. Gift deed, dt.28.09.2021 said to have been executed by Defendant
No.1 in favor of Defendant No.2. Exs.B2 to B6 are the revenue records to show that the defendant No.1 as a pattadar of the Item No.1 of suit schedule property.
During cross-examination DW.1 stated that as per the recitals of Ex.B1 gift deed in view of family property adjustments, the property covered under Ex.B1 is fell to the share of his mother and as such she gifted the same to him. As per the pleadings of Defendant Nos.1 and 2 the said Fakkir Saheb during his life time gifted the suit schedule properties to D1 and her husband Siddaiah by virtue of written declaration on 21.01.2000 in the presence of respectable persons as per the customs prevailed in the Muslim community since they are governed by Muslim law by delivering the possession of the suit properties. Whereas coming to the evidence of DW.1, he stated entirely a different version that his maternal grandfather orally gifted the Item No.1 of the suit schedule property to his mother.
As per the pleadings of the defendant no such written document is placed before this Court. Though DW.1 stated that the suit schedule property orally gifted to his mother but there is no material to prove the said oral gift. On this aspect the learned counsel for plaintiff relied upon a decision ;
(i) In Jamila Begum (D) Thr. Lrs Vs. Shami Mohd. reported in
AIR 2019 SC 72 wherein the Hon’ble Supreme Court held that ; “Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral git under the Mohammedan law are :- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the done; and (iii) taking possession of the subject matter of the gift by the donee. The essential of a valid and complete gift under Mohammedan law have been succinctly laid down in Abdul
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Rahim and Others v. Sk. Abdul Zabar and others (2009) 6 SCC 160 as under :- “13. The conditions to make a valid and complete gift under the Mohammadan law are as under :
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e., should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.
“The essential conditions to make a valid gift under the Mohammedan law have not been established by the respondent- plaintiff to prove the oral gift in his favor. In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the respondent- plaintiff ought not to have been accepted by the courts below”.
(ii) In Hafeeza Bibi & Ors Vs Shaikh Farid (Dead) by Lrs. &
Ors on 05.05.2011 reported in AIR 2011 SC 1695 wherein the Hon’ble
Supreme Court held that; “Mulla, Principles of Mahomedan Law (19 th Edition), Page 120, states the legal position in the following words : “Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor : (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively”.
25.As per the above referred decisions it makes clear that to make a valid oral gift there should be an intention on the part of the donor to gift the same and acceptance by the donee and taking possession of the gift by the donee. In
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the present case on hand at one point of time it was pleaded by the defendant that there is a written declaration pertaining to the said gift and whereas coming to the evidence of DW.1, he stated oral gift and to prove the same no material is placed before this Court. Therefore, the contention of defendants has no force in this regard.
26. Further, to support his contention defendants got examined DW.2 who said to be 3rd party and he stated that defendant No.1 looked after the welfare of her parents during their life time and as such they orally gifted the suit schedule property to defendant No.1 and thereafter defendant No.1 gifted the suit schedule property to defendant No.2 through a regd. Gift deed. During cross-examination he pleaded ignorance about the survey number of Item No.1 of the suit schedule property and also door number of Item No.2 of the suit schedule. Further, he stated that he has not seen while the father of defendant No.1 orally gifted the suit schedule property to defendant No.1.
Further, the learned counsel for defendant Nos.1 and 2 relied upon the following decision ;
(i) In Abdul Rahim & Others Vs Sk. Abdul Zabar & Others reported in CDJ 2009 SC 534 wherein the Hon’ble Supreme Court held that ; “Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carried with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid”.
27.After careful reading of above referred decision it came to light that the facts in the above referred decision are different from the facts mentioned in the present case on hand. In the instant case though DW.1 stated that his mother gifted the Item No.1 of the suit schedule property in his favor through Ex.B1 but the same is not valid since the other co-sharers of the suit schedule property are also entitled for share as per Mohammaden law. Further, it makes clear that plaintiff
Nos.1 to 3, defendant No.1 being the daughters and defendant Nos.3 and 4 being
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the children of another daughter of Fakkir Saheb namely Ramakka are entitled share as per the table given in Sec.63 of Mulla Mahammadan law.
28.Further, Hanafi law of inheritance classified heirs into 3 clauses to succeed the estate of the deceased Mohammadan. Sec.61 Mulla Principles of
Mohammadan law provides 3 clauses of heirs namely sharers, residuaries and distant kindred. Sharers are those who are entitled to prescribed share.
Residuaries are those who take no prescribed share but the succession to residue after claim of sharers is satisfied. Distant kindred are all those relation by blood who are neither sharers or residuaries. Sec.63 provides that after payment of funeral expenses, debts and legacies, the first step in the distribution of the estate of a deceased Mohammadan is to ascertain which of the surviving relations belongs to the clause of sharers and which again of these are entitled to a share of inheritance. Under Sec.63 a table is given showing the list of sharers and quantum of sharers they take from the estate of the deceased. Daughter is shown as at entry No.7 as a sharers wherein it is shown that she is entitled half share when there is no son. It further provides that if there are more than one daughter, all daughters collectively take 2/3rd share when there is no son. If there is a son, the daughter became a residuary and shall takes share as shown in the table given under Sec.65. In the present case on hand admittedly the Fakkir Saheb had 6 daughters and out of them one daughter was died unmarried and another daughter who is the mother of defendant Nos.3 and 4 also died. The plaintiff
Nos.1 to 3 and defendant No.1 are the other 4 daughters. Therefore, as per the table given under Sec.63 each daughter is entitled the share of 2/3rd and total 2/15 and since there are no other relatives and as such the remaining 1/3rd may go to the daughters. Therefore, plaintiff Nos.1 to 3, defendant No.1 are entitled 1/5th share each and being the children of other daughter Ramakka, defendant
Nos.3 and 4 get 1/5th share.
29.Therefore, in view of above discussion, this Court is of the opinion that the plaintiffs are entitled for partition of the suit schedule properties and allotment of shares as per Muslim personal law. The plaintiff Nos.1 to 3 and defendant No.1 are entitled 1/5th share each and being the children of other daughter Ramakka,
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D3 and D4 are entitled 1/5th share. Accordingly, this issue is answered in favor of the plaintiffs and against defendant Nos.1 and 2.
30.Issue No.3:
According to the evidence of PW.1 and pleadings of the plaintiff that the defendant No.1 has no right to execute a regd. Sale deed in favor of defendant
No.2 who is her son by defeating their rights. In view of the discussion in Issue
No.2, the regd. Gift deed, dt.28.09.2021 vide Doc.No.4534/2021 not binding on the plaintiffs and defendant Nos.3 and 4 to the extent of share held by the plaintiffs and defendant Nos.3 and 4.
31.Issue No.4 :
The plaintiffs are claiming mesne profits in respect of the suit schedule properties as the defendant No.1 enjoying the profits derived from the suit schedule properties. However, they are at liberty to file separate application in this regard for assessing the mesne profits as per law.
32.Issue No.5 :
The plaintiffs also sought for the relief of permanent injunction restraining the defendants from alienating or executing any registered document pertaining to the Item Nos.1 and 2 of the suit schedule properties in favor of 3rd parties. In view of findings recorded in Issue No.2 it is makes clear that the plaintiffs and defendant Nos.3 and 4 got shares in the suit schedule property and specific shares was allotted to them in the said issue. Therefore, under such circumstances if any alienation are made to the extent of the shares of the plaintiffs and defendant Nos.3 and 4, they would be put to serious loss, therefore it is a fit case to grant permanent injunction restraining the defendant Nos.1 and 2 from alienating the extent of shares held by the plaintiffs and defendant Nos.3 and
4. Accordingly, this issue is answered.
33.Issue No.6 :
In view of Issue Nos.2 to 5 are answered in favor of the plaintiffs and defendant Nos.3 and 4, the suit is to be decreed.
34.In the result, the suit is decreed by passing preliminary decree for division of the suit schedule property into 05 equal shares by meets and bounds
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and to allot 1/5th share to the plaintiff Nos.1 to 3 each and allot 1/5th share to defendant No.1 and allot 1/5th share to defendant Nos.3 and 4.
35.Further, declaring that the registered gift deed, dt.28.09.2021 vide
Doc.No.4534/2021 executed by Defendant No.1 in favor of Defendant No.2 is not binding on the plaintiffs and Defendant Nos.3 and 4 to the extent of shares held by the plaintiffs and defendant Nos.3 and 4. Further, Defendant Nos.1 and 2 are hereby restrained by means of permanent injunction from alienating the suit schedule property to the extent of the shares held by the plaintiffs and defendant
Nos.3 and 4. Further, the plaintiffs are entitled for mesne profits and they are at liberty to file separate application for assessing the mesne profits. Each party shall bare their own costs.
Directly typed to my dictation by the Typist, corrected and
pronounced by me in the open Court, this the 05th day of February, 2026.
Sd/- Y.J.Padmasree,
CIVIL JUDGE (SENIOR DIVISION),
BADVEL.
FAC ADDITIONAL CIVIL JUDGE (SENIOR
DIVISION), (FAST TRACK COURT),
RAJAMPET AT BADVEL.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Plaintiff’s side Defendant’s side
P.W. 1. : Boyalakuntla Hussainamma Pulimaddi Siddeswar D.W. 1 @ Chinna Ramakka.
P.W. 2 : Boyalakuntal Babaiah D.W 2Cherukuri Siddaiah
P.W. 3 : Cherukuri Chinna Khaja Valli
P.W. 4 : Palagari Rama Subba Reddy.
Exhibits marked on behalf of the Plaintiff :
Ex.A. 1.Certified copy of gift deed dated 28.09.2021 vide document no. 4534 of 2021.
Ex.A. 2.Certified copy of registered sale deed dated 10.09.1964 vide document no 1290 of 1964.
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Ex.A. 3.Extract of register of holdings showing the title of Fakkir who is our father.
Ex.A. 4.Genealogical tree of Fakkir Saheb and his family members.
Ex.A. 5.Unregistered Will, dt.06.07.1990.
Exhibits marked on behalf of the Defendant :
Ex.B. 1.: Original registered gift deed dt.28-9-2021
Ex.B. 2.: E-passbook
Ex.B. 3. 1-B Namuna drawn from Mee-seva dt.22-9-2021
Ex.B. 4. Adangal for faslie No.1431 drawn from Mee-seva dt.4-9-2021
Ex.B. 5. land revenue receipt dt.27-3-2010 stands in the name of Pulimaddi Balamma
Ex.B. 6. land revenue receipt dt.27-8-2011 stands in the name of Pulimaddi Balamma.
Sd/- Y.J.Padmasree,
CIVIL JUDGE (SENIOR DIVISION),
BADVEL.
FAC ADDITIONAL CIVIL JUDGE (SENIOR
DIVISION), (FAST TRACK COURT),
RAJAMPET AT BADVEL.