Can a person with only a future right under a Will maintain a suit for declaration of title when the life estate holder is alive?

The unsuccessful plaintiffs in the suit are the appellants. They filed a suit seeking declaration of title that they are entitled to suit ‘A’ schedule properties after the life time of 1 st defendant and consequential injunction restraining the defendants 2 and 3 from claiming absolute right over suit ‘B’ and ‘C’ schedule properties. They also sought for injunction restraining the defendants 2 and 3 from interfering with the plaintiffs’ peaceful possession and enjoyment of suit ‘B’ and ‘C’ schedule properties. The suit was dismissed by the Trial Court and the conclusion of the Trial Court was affirmed by the First Appellate Court. Aggrieved by the same, the appellants/plaintiffs have come before this Court.

According to the plaintiffs, the suit properties originally belonged to one Govindhasamy Gounder and he executed a registered Will on 19.10.2007 bequeathing the suit properties in favour of the plaintiffs. As per the terms of the Will, the 1 st defendant was given life estate over the ‘A’ schedule properties. All along, the plaintiffs maintained the 1 st defendant and recently due to misunderstanding with the plaintiffs’ mother, the 1st defendant started living separately. It was further stated that 1 st defendant without having any manner of right, executed a registered Sale Deed dated 29.03.2012 in favour of the 2nd defendant selling ‘B’ schedule properties, which are part of the ‘A’ schedule properties. Likewise, the 1 st defendant executed another Sale Deed on the very same date in favour of the 3rd defendant in respect of ‘C’ schedule property, which is also part of ‘A’ schedule properties.

It is further stated that ‘B’ and ‘C’ schedule properties were not given possession to the defendants 2 and 3 respectively and the plaintiffs continue to enjoy the said properties. The plaintiffs further pleaded that the 1st defendant entered into a Sale Agreement on 19.10.2007 in respect of ‘D’ schedule property with 4th defendant and the said sale transaction has not been completed. Since the defendants claimed right over the suit properties, the present suit has been filed seeking declaration of absolute title of the plaintiffs over the suit ‘A’ schedule properties after the life time of 1st defendant and for consequential injunction restraining the defendants 2 and 3 from claiming any right over the suit ‘B’ and ‘C’ schedule properties. The plaintiffs also sought for injunction restraining the defendants 2 and 3 from interfering with the plaintiffs’ peaceful possession and enjoyment of suit ‘B’ and ‘C’ schedule properties.

The 1st defendant filed written statement and denied the very title of the Govindhasamy Gounder, who executed the Will and also the validity of the Will executed by Govindhasamy Gounder. According to the 1st defendant, the suit properties were purchased by her grandfather one Kuppa Gounder under registered Sale Deed dated 31.10.1932. After his death, the property was succeeded by 1 st defendant’s father Manicka Gounder. He executed a registered Settlement Deed dated 21.10.1964 in favour of his minor daughter-1st defendant. Her husband Govindhasamy Gounder was appointed as guardian for the suit schedule properties till she reaches the age of majority with direction to handover the properties to the 1st defendant on attaining majority. It was also pleaded that after attaining majority, the 1st defendant got the suit properties and her husband Govindhasamy Gounder got released from his guardianship. Therefore, according to the 1st defendant, she was absolute owner of the suit properties under the Settlement Deed dated 21.10.1964 and hence, Govindhasamy Gounder had no title to bequeath the suit properties in favour of plaintiffs. The 1st defendant sought for dismissal of the suit on these pleadings.

Before the Trial Court, the 2 nd plaintiff was examined as PW.1 and the attestor to the Will relied on by the plaintiffs was examined as PW.2. On behalf of plaintiffs, 8 documents were marked as Exs.A1 to A8. On behalf of the defendants, the 1 st defendant was examined as DW.1 and one another witness namely Thavamani was examined as DW.2 and 2 documents were marked as Exs.B1 and B2.

The Trial Court on appreciation of oral and documentary evidence available on record, came to the conclusion that the Govindhasamy Gounder had no right over the suit properties and hence, Will executed by him would not convey any title to the plaintiffs and dismissed the suit. Aggrieved by the same, the plaintiffs preferred first appeal in A.S.No.39 of 2018 on the file of the Principal Subordinate Court, Vellore. The First Appellate Court came to the conclusion that as per the Settlement Deed executed by Manicka Gounder, Govindhasamy Gounder and Pattammal were entitled to 1/2 share in the properties described in the plaint schedule and hence, the plaintiffs failed to prove their absolute right over the suit properties and dismissed the suit. Aggrieved by the same, the plaintiffs have come before this Court.

At the time of admission, this Court formulated the following substantial question of law by order dated 12.02.2021:- “Whether the Courts below were right in dismissing the suit in entirety, when admittedly the father of 1 st defendant had executed a settlement in favour of 1 st defendant and her husband Govindhasamy, the suit should have been decreed atleast to the half share of Govindhasamy in favour of the plaintiff in view of execution of Will by Govindhasamy in favour of Plaintiffs?”

Elaborating the substantial question of law, the learned counsel appearing for the appellants would vehemently contend that as per the Settlement Deed executed by Manicka Gounder, Govindhasamy Gounder and 1st defendant were entitled to 1/2 share in the suit properties. The First Appellate Court having found that plaintiffs were entitled to 1/2 share in the suit A-schedule properties had committed error in dismissing the suit in its entirety.

The learned counsel appearing for the appellants also submitted that the appellants filed a petition to raise additional evidence in C.M.P.No.7283 of 2026. The additional evidence produced by them namely Partition Deed dated 31.07.1971 entered between the Govindhasamy Gounder, Pattammal and brothers of Govindhasamy Gounder would establish the properties covered by the Settlement Deed executed by Manicka Gounder were treated as ancestral properties and those properties were partitioned among the family members.

In the plaint, it was pleaded by the plaintiffs that the suit properties originally belonged to Govindhasamy Gounder and he executed a Will dated 19.10.2007 bequeathing the suit properties to the plaintiffs. In order to prove the Will relied on by the plaintiffs, attestor to the said Will has been examined as PW.2. The said witness clearly deposed about Govindhasamy Gounder putting his signature in the Will and attestation of the Will by him and another witness. However, in the cross examination of PW.2, he deposed that he did not know about Govindhasamy and Pattammal.

As per the terms of the Will, which has been marked as Ex.A1, the 1st defendant was given life estate to enjoy the properties and vested reminder has been given in favour of plaintiffs. Therefore, it is clear when the plaintiffs filed a suit seeking declaration of title, they had no right or interest over the properties, they had only future right to the properties.

It is settled law that the right of spes successionis cannot be treated as interest in the properties. In such circumstances, the plaintiffs could not have maintained a suit on the date of presentation of the plaint as the life estate holder 1st defendant was alive at that point of time.

It is seen from Ex.B2, the Settlement Deed relied on by the 1st defendant, Manicka Gounder executed a Settlement Deed in favour of 1st defendant and appointed Govindhasamy Gounder as guardian of 1 st defendant. The Settlement Deed executed by Manicka Gounder covers four items of the suit properties namely Items 1, 4, 5 and 7. As per the terms of said Settlement Deed, the plaintiffs’ predecessor-in-interest Govindhasamy Gounder also entitled to 1/2 share in respect of said items.

Ex.B2 established beyond reasonable doubt that Govindhasamy had no absolute right over Items 1, 4, 5 and 7 of suit properties. The said items were settled by Manicka Gounder in favour of 1 st defendant and Govindhasamy Gounder and therefore, at the most, Govindhasamy Gounder can only be treated as co-owner in respect of those four items. The Will executed by Govindhasamy Gounder in favour of the plaintiffs will not convey the absolute right to the plaintiffs in respect of those four items. At the most, the plaintiffs can only be treated as co-owner along the 1 st defendant. In such circumstances, the prayer for declaration of title and consequential injunction is not at all maintainable.

Pending first appeal, Pattammal died. The defendants 2 and 3, who purchased portion of the ‘A’ schedule properties namely schedule ‘B’ and ‘C’ were added as legal representatives. In respect of unsold portion of the suit properties covered under Ex.B2, the defendants 2 and 3 cannot be treated as legal representatives of the estate of Pattammal. On death of Pattammal, the unsold portions will go to her natural heirs as per the law of succession. In these circumstances, this Court is unable to accept the submission made by the learned counsel appearing for the appellants. If at all, it is for the appellants to file a separate suit for partition of their share in respect of these items by impleading the natural heirs of Pattammal.

The learned counsel appearing for the appellants relying on additional evidence sought to be raised in this second appeal, would submit that other items are covered by document filed by way of additional evidence.

As mentioned earlier, the appellants herein filed a petition under Order 41 Rule 27 of the Code of Civil Procedure, to mark the Partition Deed entered into among Govindhasamy Gounder, his brothers and Pattammal. A perusal of the certified copy filed along with petition would indicate that the certified copies were obtained as early as 15.07.2013. However, no attempt has been made by the appellants to mark the same before the Trial Court. Therefore, it is clear the said document was very much available with the plaintiffs at the time of filing the suit. The learned counsel appearing for the appellants submits that the document was handed over by the plaintiffs to his Counsel. However, he had not taken any steps to mark the same. The appellants by putting the blame on the Counsel cannot explain the failure to mark the documents before the Trial Court.

The 2nd plaintiff was examined as PW.1. At the time of signing the proof affidavit, the witness did not exercise sufficient diligence to ensure that all the documents handed over to his Counsel had been included in the proof affidavit for the purpose of marking. Therefore, there is negligence on the part of the appellants in not marking the document, which was available with them at the time of filing of the suit. Even assuming the said document is taken into consideration the same cannot be marked without any foundational plea in the plaint as per the law settled by the Apex Court in Iqbal Ahmed (Dead) by Lrs. & Anr. vs. Abdul Shukoor reported in 2025 INSC 1027.

The learned counsel appearing for the appellants submitted that in the Partition Deed referred above, the properties settled by Manicka Gounder in favour of the 1st defendant was also included. Therefore, the suit properties were treated as joint family properties. The appellants have not raised any plea that the properties settled in favour of Pattammal were thrown into the common hotchpot and there was blending of her separate properties with the ancestral properties. In the absence of any foundational plea, the plaintiffs are not entitled to raise a new plea as if, there was blending of her properties with the ancestral properties. The appellants have not made out any grounds to receive the new document sought to be filed as additional evidence. Hence, this Court is not inclined to accept the contention raised by the learned counsel appearing for the appellants and the C.M.P.No.7283 of 2026 filed to raise additional evidence is dismissed.

In the light of the discussion made earlier, the substantial question of law framed at the time of admission is answered by saying that the appellants failed to prove their exclusive right over the suit properties and hence, the proper course for the appellants is to file a suit for partition by impleaing all the necessary parties. I do not find any error in the final conclusion reached by the First Appellate Court while dismissing the appeal filed by the appellants.

In Nutshell:-