Dismissed¶27

Sitaram Chauhan v. Smt Moteshwari Devi

Jharkhand HC3 Mar 2025SA/203/2023

Case brief

AI extract

What is this about?

Benami property; Benami Transactions (Prohibition) Act, 1988 Section 3(2); partition suit dismissed; stridhan purchase by mother; sale deed dated 31.10.1991 consideration Rs. 40,000; transfer to Defendant Nos.2 and 4 for Rs. 9,00,000 during pendency; lis pendens; Transfer of Property Act s.52; concurrent findings; no perversity; no substantial question of law; second appeal dismissed; High Court of Jharkhand; Vinod Kumar Dhall distinguished.

What did the court decide?

The plaintiff miserably failed to prove before both courts that the property was benami property purchased by his father in the name of his mother; Defendant No.1 was declared the exclusive owner. ¶23

Sitaram Chauhan Vs Smt Moteshwari Devi — Specific Performance | Jharkhand HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the suit property standing in the name of Defendant No.1 (the plaintiff's mother) was benami property purchased by the plaintiff's father Munilal Chauhan, entitling the plaintiff to a one-seventh share by partition. +2 more

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Court's answer

The plaintiff miserably failed to prove before both courts that the property was benami property purchased by his father in the name of his mother; Defendant No.1 was declared the exclusive owner.

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Ratio / Principle

Although the plaintiff claimed he contributed money to construction over the suit property, there was no specific pleading regarding such contribution.

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Key takeaways

Courts below held the property was purchased from Defendant No.1's own funds, she paid the consideration money and exercised all rights over it; there is no scope for re-appreciation of materials absent perversity.ratio¶25
Title to the suit property automatically passed jointly to Defendant Nos.2 and 4 by virtue of the sale deed dated 24.10.2010 executed by Defendant No.1, even though executed during the pendency of the suit.ratio¶23
There are concurrent findings of both courts and no perversity in appreciation of evidence was pointed out by the appellant's counsel.

Detailed headnote1 paragraphs

Second Appeal – High Court of Jharkhand (S.A. No. 203 of 2023, decided 03.03.2025, Anubha Rawat Choudhary, J.): Plaintiff Sitaram Chauhan appealed against dismissal of his partition suit (Partition Suit No.42 of 2010) and first appeal (Civil Appeal No.56 of 2018), claiming a one-seventh share in property standing in the name of his mother (Defendant No.1) on the plea that his father Munilal Chauhan had purchased it benami in 1991 and that he had contributed to construction. The Court held the plaintiff failed to prove the benami character of the purchase or payment of consideration by the father; there was no specific pleading of his contribution; both courts concurrently found the property was bought from Defendant No.1's own stridhan, who transferred it to Defendant Nos.2 and 4 by sale deed dated 24.10.2010 during the suit's pendency, title passing thereby; no perversity in appreciation of evidence was shown; no substantial question of law arose; the precedents cited by the appellant were found not to help him. Second appeal dismissed; pending interlocutory application dismissed as not pressed.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 203 of 2023

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Sitaram Chauhan, aged about – 53 years, son of Late Munilal Chauhan, Resident of Kokar, Haidar Ali Road, P.O.- Kokar, P.S.Sadar, District – Ranchi – 834001 (Jharkhand)

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… … Plaintiff/Appellant/Appellant

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Versus

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Smt. Moteshwari Devi, wife of Late Munilal Chauhan

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Jayram Chauhan son of Late Munilal Chauhan

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Hareram Chauhan, son of Late Munilal Chauhan

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Bhupesh Chauhan, son of Late Munilal Chauhan All above respondents no. 1 to 4 are residents of Kokar, Haider Ali Road, P.O.- Kokar, P.S.- Sadar, District- Ranchi.

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Smt. Urmila Devi, wife of Shambhu Chauhan, daughter of Late Munilal Chauhan, resident of Village- Baregaon, P.O.Semrajpur, P.S.- Haidarpur, District - Mau (U.P.) – 221706.

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Pramila Devi, wife of Ajay Chauhan and D/o Late Munilal Chauhan, resident of Village - Sarwanpur, Semri, Jamalpur, P.O. & P.S.- Kopa, District -Mau (U.P.)

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… … Defendants/Respondents/Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Soumitra Baroi, Advocate : Mr. Rakesh Kumar No.2, Advocate For the Respondents :

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09 /03.03.2025 Heard the learned counsel appearing on behalf of the appellant.

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2. This second appeal has been filed against the judgment dated 31.05.2023 and decree dated 08.06.2023 passed by Additional Judicial Commissioner – XXI, Ranchi in Civil Appeal No.56 of 2018 whereby the appeal has been dismissed, affirming the judgment dated 25.08.2017 and decree dated 01.09.2017 passed by Civil Judge, Senior Division – X, Ranchi in Partition Suit No.42 of 2010 whereby the suit filed by the plaintiff has been dismissed.

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3. The learned counsel for the appellant submitted that the suit was filed for partition claiming one-seventh portion of the suit land in which a house is also constructed, the details of which were given in Schedule A to the plaint, and for appointment of survey knowing pleader commission for preparation of separate takhta for the plaintiff with cost.

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4. He submitted that the suit property was purchased by late Munilal Chouhan in the year 1991, in the name of the mother of the plaintiff, and as per the plaint, it was a Benami property and therefore, after death of Munilal Chouhan, the property was to be partitioned. He submitted that the specific case of the plaintiff was that his mother had no personal income and she was a house lady and was illiterate. He also submitted that the plaintiff had also made substantial contribution in the construction of the house over the property and therefore, the suit property was required to be partitioned.

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5. The learned counsel further submitted that the Defendant No.2 had also filed a counter claim on the basis of transfer of property by the mother in favour of the Defendant Nos.2 and 4 during the pendency of the suit. The learned counsel has submitted that if the suit property was a benami transaction in the name of mother, then under such circumstances, the transfer was hit by lis pendens and consequently the counter claim could not have been allowed.

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6. The learned counsel further submitted that the correspondences were placed on record to show that the plaintiff had contributed in the construction of the building on the suit property. The learned counsel submitted that aforesaid aspects of the matter have not been considered by the learned appellate court, and therefore, the appeal be admitted. He submitted that the proposed substantial questions of law have been filed on behalf of the appellant.

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7. The proposed substantial questions of law filed on behalf of the appellant are as under:

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“1. Whether the suit property was purchased by Munni Lal Chauhan in the name of his wife Moteshwari Devi, hence it is a joint family property at the hands of the plaintiff and defendants on the demise of Munni Lal Chauhan and the appellant is entitled to 1/7th share in the same? If yes whether or not the Ld. Trial Court and Appellate Court below has committed legal wrong in dismissing the Partition Suit and Civil Appeal?

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2. Whether the Defendant No.1 Moteshwari Devi did not have sufficient means to purchase the suit property or make construction thereupon nor any cogent evidence has been laid to show that she has sufficient means and income to purchase the suit properly and make construction thereupon and that Ld. Courts below have misinterpreted and

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misconstrued the provisions of Benami Transaction (Prohibition) Act, 1988?

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3. Whether both the lower courts have wrongly decreed the suit and that the sale deed on the basis of which the defendant no. 2 sought relief by way of counter claim was hit by the principle of lis pendens u/s 52 of the Transfer of the Property Act as the same was executed by the defendant no. 1 on 24.06.2010 after the institution of suit hence the allowing the counter claim of the defendant no.2 is bad in law?”

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8. The learned counsel for the appellant relied upon the judgment passed by the Hon’ble Supreme Court reported in (2018) 16 SCC 645 (Vinod Kumar Dhall v. Dharampal Dhall) , paragraph 10, 11 and 16 and also the judgment passed by Hon’ble Allahabad High Court reported in 2001 SCC OnLine Allahabad 416 (Kuldeep Sharma and others -vsSatyendra Kumar Sharma and others), paragraph 31, to submit that in a case where Hindu husband purchases property in the name of his wife, it is to be presumed to be a benami transaction unless otherwise is shown.

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9. After hearing the learned counsel for the appellant, this Court finds that the sole property which was subject matter of partition was the property standing in the name of Defendant No.1, the mother of the plaintiff. It was claimed in the plaint that Munilal Chouhan, the father of the plaintiff, had purchased the property by benami name of the Defendant No.1, and therefore, the partition of the property was sought for.

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10. On the other hand, the Defendant No.1 had stated in the written statement that she had purchased the property by her stridhan and with the help of the money from Defendant No.2 and the plaintiff was allowed to reside in the suit house in the year 2003 and got permissive possession. It was also stated that she had transferred the suit land and structure in favour of defendant nos.2 to 4 for consideration amount of Rs. 9,00,000/- and that the Defendant No.1 also stated that the plaintiff separated his mess after employment and got his proportionate share in the ancestral property in the district Mau at UP. An objection was also raised that the entire property was not the subject matter of the partition suit. The Defendant No.2 supported the Defendant No.1 and stated that the suit property including land and structure was acquired

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by him through registered deed of sale dated 31.10.1991 and he came in possession and the suit property was purchased by Defendant No.1 from her stridhan. The Defendant No.3 and Defendant No.5 had admitted the content of the plaint and claimed their share in suit property.

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11. Written Statement on behalf of the Defendant No.1 was filed on 17.08.2010 and Written Statement-cum-Counter Claim was filed on behalf of Defendant No. 2. Separate Written Statement was filed by Defendant No.3. Defendant No. 4 was debarred from filing Written Statement, vide Order dated 17.08.2010. An ex parte order was passed against Defendant No. 6, vide Order Dated 06.12.2010. Rejoinder against the Counter Claim of Defendant No.2 was filed by the Plaintiff on 09.02.2011, which was treated as Written Statement to the Counter Claim. The Plaintiff in the rejoinder against the Counter Claim of Defendant No. 2 stated that Counter Claim was not maintainable and ad valorem court fees was not given by the Defendant No.2 and denied the claim of Defendant No. 2 and also denied that the suit property was purchased from Stridhan of Defendant No.1. It was also asserted that Defendant Nos. 2 and 4 obtained the sale deed dated 26.10.2010, which was much after filing the suit and sale deed executed by Defendant Nos. 2 and 4 on 24.06.2010 was a fraudulent paper transaction and as such the sale deed dated 24.06.2010 was null and void ab initio and not binding upon the plaintiff or the other defendants.

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12. On the basis of the pleadings, following issues were framed by the learned Trial Court.

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“1. Whether the suit is maintainable in its present form?

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2. Whether the plaintiffs have any valid cause of action for the suit?

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3. Whether suit is bad for non-joinder of necessary parties.

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4. Whether the plaintiff is entitled to relief claimed as per para 22 of the plaint.

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5. Whether the defendant is entitled to relief claimed as para 19 of his written statement-cum-counter claim?

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6. Is the suit is barred by principle of waiver, estoppel and acquiescence as well as limitation?

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7. Is the suit barred under provision of section 34 and 19(b) of the Specific Relief Act?”

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13. Before the learned Trial Court, it was not in dispute that Munilal Chauhan was the common ancestor of the plaintiff and Defendant Nos.2 to 6 and Defendant No.1 was the wife of Munilal Chouhan. The learned Trial Court ultimately held that the plaintiff was asserting that his father paid the consideration amount and the father of the plaintiff is dead and that the element of Sub-section 2 of Section 3 of the Benami Transactions (Prohibition) Act, 1988 has not been proved by the plaintiff. It was specific case of the Defendant No.1 that she had purchased the suit property from her Stridhan and she had made the construction over the suit property with the help of other sons and ultimately transferred the property to Defendant No. 2 by a registered sale deed.

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14. The learned Trial Court also recorded that the suit property was purchased in 1991 in the name of Defendant No.1 and the recital of the deed revealed that the vendor received Rs.40,000 from the vendee. The learned trial court also took into consideration that under the provisions of the Indian Registration Act, recital of the sale deed may be taken in evidence. The learned Court ultimately decided the issue against the plaintiff and in favour of the contesting defendants and also recorded that the suit was hit by Section 3 of the the Benami Transactions (Prohibition) Act, 1988.

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15. The learned 1^st appellate court formulated the following points for consideration:

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“(i) Whether the sale deed is in the name of Moteshwari Devi was self acquired property of defendant no. 1.

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(ii) Whether defendant no. 1 Moteshwari Devi has valid right to transfer the property in the name of defendant no. 2 and 4.

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(iii) Whether the suit is barred by Benami Transaction (Prohibition) Act, 1988.

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(iv) Whether defendant no. 2 is entitled to relief claim as per para-19 of the written-statement of counter claim.”

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16. The learned Appellate Court also considered the materials on record and held that the plaintiff failed to prove the purchase in the name of Defendant No.1 as benami and consequently the title of the suit property automatically passed to Defendant Nos. 2 and 4 by virtue

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of the sale deed dated 24.10.2010. The learned appellate court considered the materials and ultimately dismissed the appeal.

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17. The learned 1^st appellate court recorded that in order to succeed, the plaintiff had to prove through cogent and reliable evidence that (1) the entire consideration amount of the registered sale deed dated 31.10.1991 was paid by deceased Munilal Chouhan and (2) the said purchase was not for the benefit of his wife (Defendant No.1). The learned appellate court also recorded that from perusal of the recital of the sale deed dated 31.10.1991, the consideration amount of Rs.40,000/- by way of demand draft was given by the buyer to the seller and the plaintiff failed to prove that the recital was untrue and that entire consideration amount of sale was paid by deceased Munilal Chouhan.

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18. The learned Appellate Court further discussed the materials and recorded its findings in the following terms:

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“From the discussion aforementioned, it is clear that in order to succeed for the plaintiff, he has to prove through cogent and reliable evidence that (1) the entire consideration amount of the registered sale deed dated 31.10.1991 (Exhibit-G) was paid by the deceased Munni Lal Chauhan (2) that the said purchase was not for the benefit of his wife (defendant no. 1 - Moteshwari Devi).

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Plaintiff has deposed at para-101 of his deposition that he has no objection regarding deed no 11171 and serial no. 11828. Further deposed at para-102 of his deposition that the title accrued by virtue of the said sale deed is correct. Further from perusal of recital of sale deed dated 31.10.1991 (Exhibit-G) and the beginning of page no. 2 the consideration amount of Rs. 40,000/- by way of demand draft being Draft No. 328769-00200 dated 30.10.1991 which was given by the buyer to the seller.

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The appellant/plaintiff failed to prove that the recital of the Exhibit-G (sale deed dated 31.10.1991) are untrue and the entire consideration amount of the sale was paid by the deceased Munni Lal Chauhan.”

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19. The learned Appellate Court, after discussing the materials, particularly the evidence of the plaintiff recorded as under:

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“On the point of purchase done in the name of defendant no. 1 Moteshwari Devi by her husband for the benefit of his wife can be inferred from the testimony of the plaintiff and the witness who deposed in support of plaintiff case. PW 1 at para-21 of his deposition has stated that he was not present at Ranchi when the registered deed was executed in favour of defendant no. 1. He further deposed at para22 that he was at Banglore for training at the time of execution of the deed. He further deposed at para-23 that he went for training two

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months prior to execution of the deed and came after four months to Ranchi after execution of the deed. PW 2 at para-29 and 31, PW 3 at para-31 and PW 4 at para-35, witness Santosh Ram at para-35, witness Hareram Chauhan at para-61 of their depositions have categorically deposed that either they were not present at Ranchi on the day of execution of the sale deed or they were ignorant about the purchase which clearly indicates that the plaintiff was not having personal knowledge about the sale deed and payment of consideration amount. Therefore the plaintiff has failed to prove the fact that the consideration amount of the sale deed dated 31.10.1991 was paid by the deceased father of the plaintiff/appellant. Further plaintiff has not examined the vendor or any family members of the vendor who could be the best witness to prove the contention of consideration money being paid by the father of the appellant. Moreover. as the father of the appellant/plaintiff is dead and as per the testimony of the plaintiff and other witnesses in support of plaintiff no one was present at the time of execution of the sale deed, so it cannot be believed that the consideration amount for the execution of sale deed dated 31.10.1991 (Exhibit-G) was paid by the father of the appellant/plaintiff. Further no where in the plaint that the plaintiff has asserted that the suit property had not been purchased for the benefit of defendant no. 1.”

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20. The learned appellate court concluded in paragraph 17 that the appellant/plaintiff failed to prove that the suit property was benami and the consideration amount was paid by deceased father of the appellant and held that defendant no. 1 was the exclusive owner of the suit property.

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21. This Court further finds that although the plaintiff claimed that he had contributed some money in the construction of the building over the suit property, but there was no specific pleading in connection with the contribution made by the plaintiff in the construction of the suit property.

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22. In Vinod Kumar Dhall v. Dharampal Dhall, (2018) 16 SCC 645 : (2019) 1 SCC (Civ) 650 , at page 650 reliance was placed on an earlier judgement passed in in Surendra Kumar v. Phoolchand (1996) 2 SCC 498 in which it was laid down that there is no presumption that a family, because it is joint, possessed the joint property and therefore the person asserting the property to be joint had to establish that the family was possessed of some property with the income of which the property could have been acquired. It has been held that where it is established or admitted that the family which

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possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. When the property was purchased by Manager of the joint family in the name of the appellant who was then minor in the absence of material to establish that consideration money was paid out of separate funds, it was opined that the property was rightly held to be the joint property by the courts below. Another judgement was relied in the said case , namely, Union of India v. Moksh Builders and Financiers Ltd.: (1977) 1 SCC 60 wherein the Hon’ble Supreme court observed that where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source where the consideration came as also to find out who has been in the enjoyment of the benefits of the transaction. The case must be dealt upon the reasonable probabilities and legal inferences arising from proved or admitted facts. The burden of proof is not static and may shift during the course of the evidence. It was held that it is equally well settled that, although the onus of establishing that a transaction is “benami” is on the plaintiff, it would be necessary to weigh the evidence and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the “benami” allegation, what would, on a careful assessment of the evidence, be a reasonable probability and a legal inference from relevant and admissible evidence. 23. This Court finds that the plaintiff had miserably failed to prove his case before both the courts that the property was the benami property purchased by his father in the name of his mother. So far as the counter-claim is concerned, it was declared that it was the exclusive property of the Defendant No. 1. The learned Appellate Court rightly recorded that the title of the suit property automatically passed jointly to Defendant Nos. 2 and 4 by virtue of the sale deed

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dated 24.10.2010 executed by Defendant No.1 even it was executed during the pendency of the suit.

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24. This Court finds that there are concurrent findings recorded by both the courts and no perversity, as such, has been pointed out by the learned counsel for the appellant in the matter of appreciation of evidence. No substantial question of law arises for consideration in this case.

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25. This Court finds that the said judgement does not help the appellant of this case as the learned courts have considered the materials on record and held that the property was purchased from the own property of the defendant no.1 who paid the consideration money and had exercised all rights over the property. There is no scope for reappreciation of materials and coming to a different finding as no perversity as such has been pointed out by the learned counsel for the appellants in the matter of appreciation of the materials on record.

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26. This Court is of the considered view that, no question of law, much less any substantial question of law arises for consideration in this case.

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27. Accordingly, this second appeal is hereby dismissed.

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28. Pending interlocutory application, if any, is dismissed as not pressed.

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29. Let a copy of this judgment be communicated to the court concerned through FAX/email.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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