Dharmendra Kumar Vs Rukmini Devi And Anr.

2025:JHHC:18991

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 58 of 2011

[Against the judgment dated 04.03.2011 and decree 18.03.2011 passed by learned Addl. District Judge-cum-F.T.C-II, Giridih in Title Appeal No. 53 of 2008]

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Dharmendra Kumar, S/o Late Gopi Sao, resident of Village-Rajdhanwar, P.O. & P.S. – Dhanwar, District-Giridih ... ... Appellant/Plaintiff

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... ... Appellant/Plaintiff

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Versus

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1. Rukmini Devi, W/o Birkeshwar Prasad,

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2(a) Sagar Shiva Prasad

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2(b) Chandan Kumar, Both sons of Late Birkeshwar Prasad & R/0 Rajdhanwar, P.O, P.S.-Dhanwar, Giridih

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2(c) Puja Kumari, D/o Late Birkeshwar Prasad,

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R/o Aman Chandni Chowk, P.O., P.S. Rajdhanwar, Giridih

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2(d) Sangeeta Devi, W/o Aman Gupta, D/o Late Birkeshwar Prasad, R/o BL07, Holding No. 43, Laxmi Saraswati Store, Cutchary Road, P.O., P.S., Dist.-24 Pargana (W.B.)

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2(e) Jyoti Devi, W/o Dharmendra Kumar, D/o Late Birkeshwar Prasad, R/o Vikas Nagar, P.O. & P.S. Hehal, Ranchi,

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2(f) Sujata Devi, W/o Manai Kumar, D/o Late Birkeshwar Prasad, R/o Village, P.O, P.S. Hisua, District Nawada, Bihar,

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2(g) Rukmani Devi, W/o Late Birkeshwar Prasad, R/o Chandni Chowk, P.O., P.S.-Rajdhanwar, Giridih

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… … Respondents/Defendants

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For the Appellant : Mr. Manjul Prasad, Sr. Adv. Mr. Aukhouri Prakhar Sinha, Adv. Mr. Aman Kedia, Adv. For the Respondents : Mr. Sudhir Kumar Sharma, Adv. Mr. Tejo Mistry, Adv. Mr. Shashi Shekhar Dwivedi, Adv.

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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J U D G M E N T

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C.A.V. on 02.07.2025 Pronounced on 14/07/2025

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The instant Second Appeal has been preferred being aggrieved and dissatisfied with the judgment dated 04.03.2011 and decree dated 18.03.2011 passed by learned Additional District Judge-Fast Track Court-II, Giridih in Title Appeal No. 53 of 2008 reversing the Judgment and Decree dated 17.09.2008 (decree signed and sealed on 30.09.2008) passed by Sub-Judge-I, Giridih in Title Suit No. 26 of 2003.

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The plaintiff (appellant herein) filed the suit for declaration that the deed of gift No. 3221 dated 24.07.2002 executed by defendant No. 2 in favour of defendant No. 1 is null and void and no right, title and interest passed on defendant No. 1.

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It is pleaded by plaintiff that Khuban Saw, father of Gopi Saw and grandfather of plaintiff was permanent resident of village-Rajdhanwar having residential house. After death of Khuban Saw, his son inherited the property. Subsequently, sons of Khuban Saw separated in mess and business. It is further alleged that out of his own income, father of the plaintiff purchased the house detailed in schedule appended to the plaint in the name of his wife Dulari Devi (defendant No. 2). The entire consideration amount was paid by Gopi Saw out of joint family fund and Dulari Devi was only a named lender/Benamidar. She had no income of her own. It is further alleged that Gopi Saw had two sons namely Birkeshwar Prasad and Dharmendra Kumar and five daughters namely Urmila Devi, Chandrawati Devi, Meena Devi, Manju Devi and Champa Devi who have been married in the lifetime of father and living at their respective matrimonial home having no concern with the residential house of their father Gopi Saw. It is further alleged that Dharmendra Kumar Plaintiff/Appellant was in service at Bangaluru, hence, taking advantage of his absence, the defendant No. 2 executed a gift deed of the residential house in favour of defendant No. 1. The plaintiff is still residing in suit schedule house. It is further alleged that the plaintiff came to know about execution of said gift deed on 10.09.2002, hence filed the suit.

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On the other hand, the case of the defendants/respondents is that the suit property was purchased by Dulari Devi (defendant No. 2) out of her own earning and savings and Stree Dhan. She acquired 18 Decimals of land in Survey Plot No. 556 of Khata Number 49/1 of Mauza Dhanwar from Babu Jittu Sao registered sale deed 7487 dated 12/06/1959 and came into exclusive possession. She has absolutely denied that the consideration amount was paid by her husband or the

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property was purchased from joint fund of the family. It is further alleged that out of her purchased land, Dulari Devi has transferred 9 decimal lands to Rama Saw, son of Fauzdari Saw about 20 years back. Her sons and daughters-in-law are residing in the house only as per the consent and no any right has been created in favour of sons and daughters-in-law. Defendant No. 2 has admitted that she had voluntarily executed gift deed of the suit house property in favour of her own daughter-in-law (defendant No. 1) through registered deed of gift which is genuine and valid. The plaintiff is working at Bangaluru getting handsome salary and living there along with his family and children. She has gifted her own property to defendant No. 1 of her own accord hence the suit of the plaintiff is liable to be dismissed.

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The learned Trial Court after considering the oral as well as documentary evidences assuming the applicability of doctrine of blending of the Joint Hindu Family Property purchased by one of the coparcener. It was further observed that only on the ground of separate residents of the plaintiff at Bangaluru and not looking after and maintaining his mother (defendant No. 2), it cannot be assumed that plaintiff has relinquished his right, title and interest therefore found the gift deed executed by defendant No. 2 to be invalid and declared the same null, void and inoperative in the eye of law. Accordingly, decreed the suit.

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The defendants/respondents preferred a title appeal No. 53 of 2008 which was allowed by the Appellate Court differing from the reasoning of blending of property given by the learned Trial Court. It was observed by the Appellate Court that the doctrine of blending applies only when the self-acquired property of a member of joint family is voluntarily thrown into common stock abandoning all separate claims upon it. Therefore, a separate rights waiving must be established showing the clear intention of the property holder. It cannot be presumed merely by reason of fact that other family members are allowed to conjointly reside in the separate property acquired by any member of the

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joint family. It was further observed that the doctrine of blending gets its genesis in the coparcenary property as well as in the existences of separate property of a coparcener. The doctrine cannot be applied to the case of Hindu female who has acquired immovable property from her father or out of her own income, not being a coparcener. In this regard, the learned Appellate Court has placed reliance upon reported judgment in the case of “Pushpa Devi Vs. C.I.T., New Delhi, AIR 1977 SC 2230” of the Hon’ble Apex Court. Therefore, gift deed executed by defendant No. 2/appellant was held to be valid, genuine and conferring title to the doner which cannot be cancelled on the grounds taken by the plaintiff and allowed the appeal reversing the judgment and decree of the learned Trial Court.

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The instant appeal was preferred by the plaintiff/appellant which has been admitted for hearing vide order dated 10.01.2018 on following substantial questions of law:

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“1. Whether, while dealing with point no.1, the learned court of appeal below failed to appreciate basic principle of burden of proof that burden lie on the person to prove as to how he/ she acquired the property, who asserts. In case of Hindus, there is presumption of jointness as such the burden lie on Defendant No.2 to prove as to out of which fund she purchased the suit land and house?

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Whether, the learned lower Appellate Court misdirected itself in taking into account the time of acquisition and not the nucleus out of which the property was acquired and as such what would be the nature of property?

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Whether, the learned lower Appellate Court failed to decide the crux of dispute between parties and misdirected itself in dealing with extraneous matters in deciding point no.1 which was the main point?

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Whether, the learned Court of appeal below committed serious error of law which it has come to a conclusion that the property is a self acquired property of Gopi Sao, then all the parties to the suit have equal right after death of Gopi Sao and thus gift by Defendant No.2 to Defendant No.1 was ab-initio void?”

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Learned counsel for the appellant pressing the aforesaid substantial question of law has vehemently argued that the learned trial court has very wisely and aptly scrutinized the evidences available on record and decided the cardinal issues in favour of plaintiff/appellant and recorded the findings that the suit property was acquired by husband of the defendant No. 2 from the joint family fund and the same was thrown for the use and occupation of all the members of the family having common interest. It is admitted by D.W.-3 Koshi Mahto as well as the Defendant No. 1 and 2 that even after purchase in the name of defendant No. 2, the property was owned by her husband and sons. The suit property was purchased in the year 1959 which clearly suggests that defendant No. 2 had no source of separate income to purchase the same. As such, the presumption of jointness of property under Undivided Hindu Family is still in existence in this case. There is no evidence at all that the plaintiff has relinquished his right, title and interest in the suit property. Therefore, the findings of appellate Court reversing the judgment and decree of trial Court on extraneous consideration without meeting out the reasons of learned trial Court is absolutely perverse, erroneous and illegal. The defendant No. 2 on whom the burden of proof lies to establish the source of income, so as to be able to purchase the suit property as an exclusive owner. Learned counsel for the appellant has placed reliance on reported judgment in “Shrinivas Krishnarao Kango Vs. Narayan Devji Kango & Ors., AIR 1954 SC 379”; (ii) “Ram Nath Saw @ Ram Nath Sahu Vs. Govardhan Saw, 2003 AIR JHR SCR 938”; and (iii) “Chanderdeb Lall & Ors. Vs. Nandji Lall

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and Ors., AIR 1950 PAT 33”.

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On the other hand, learned counsel for the respondents refuting the aforesaid contentions raised on behalf of the appellant has submitted that the substantial question of law as formulated in this Second Appeal are really no substantial question of law. It is admitted fact that the suit property has been purchased by defendant No. 2 through the registered sale deed which was total 18 decimal land in the year 1959 and she has also sold out half of the property to the another person and constructed the house on her own income. There is no pleading or proof of the plaintiff/appellant that the suit property was ever joint property or exclusively belonging to the father-in-law of the defendant No. 1. It is admitted by the plaintiff himself that his grandfather was separated in mess and business and thereafter his father started doing some business. The contents of Gift deed itself discloses that the same was purchased from own income of the defendant No. 2 through her Stree Dhan and there was no joint family fund at all and there was no joint family itself existing except her husband and sons and daughters who were either minor or non-existent at the time of acquisition of the suit property. Therefore, the learned Appellate Court has rightly recorded the findings that the property purchased by defendant No. 2 was her exclusive property and the doctrine of blending does not apply in the present case and there is no evidence at all that the property has been purchased through any common fund. Therefore being exclusive owner of the suit property, defendant No. 2 had all right to execute the gift deed in favour of any person to whom she likes, which cannot be disputed and challenged. Therefore, this Second Appeal on the substantial questions of law as proposed by the appellant is devoid of merits and fit to be dismissed.

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I have gone through the judgement passed by learned trial court as well as the first appellate Court in the light of contentions raised on behalf of both sides, particularly, in relation to substantial question of laws formulated in this second appeal.

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The admitted propositions between the parties in respect of suit property is that the same was purchased in the name of original defendant No.2 through registered sale deed in the year 1959. Total purchased area was about 18 decimal lands, out of which 9 decimal land was transferred by the purchaser (Defendant No. 2) in favour of others. At the time of purchase of the suit property, plaintiff was either a small child or not born. It is also admitted position that the remaining 9 decimal property in the hands of defendant No.2 has been transferred through gift by executing two deeds on the same day in favour of defendant No.1 but the plaintiff has challenged only one gift deed No. 3221 dated 24.07.2002 to be declared as illegal, inoperative and void transactions on the ground that originally property was purchased in the name of defendant No.2 by the father of the plaintiff, late Gopi Sao out of joint family fund, therefore, the purchaser i.e. mother of the plaintiff (defendant No.2) was not real owner and title holder of the property so purchased, but only the Benamidar or name lander. Therefore, she had no right to execute gift deed in favour of defendant No.1, which is fit to be canceled.

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The moot point for consideration whether the purchase of suit property under registered sale deed dated 12.06.1959 by defendant No.2 was her self-acquired property or she was a mere name lander/ benamidar.

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Presumption of law:

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It is presumption of law that “the person, who purchases the property is the owner of the same and such presumption can be displaced only by pleading and successfully proving that the person whose name appears in the document is not the real owner, but only a Benami and heavy burden lies on the person who pleads that recorded owner is mere name lander.”

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There are two kinds of Benami transactions recognized in India:(i) where a person buys a property with his own money, but in the name

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of another person without any intention to benefit such other person, and (ii) where a person who is the owner of the property, executes a conveyance in favour of another without the intention of transferring the title to the property.

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The Hon’ble apex court in the case of “ Thakur Bhim Singh vs. Thakur Kan Singh, (1980) 3 SCC 72” relying upon judgement in “Jaydayal Poddar Vs. Bibi Hazra, (1974) 1 SCC 3” held that burden of proof regrading the particular sale is Benami always rests on the person asserting it to be so and the court while deciding whether a particular sale is Benami or not are usually guided by these circumstances:-

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(i) the source from which the purchase money came,

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(ii) the nature and position of the property, after the purchase,

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(iii) motive, if any, for giving the transaction a Benami colour, (iv) the position of the parties and the relationship, if any, between the claimant and the alleged Benamidar,

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(v) the custody of the title deeds after the sale, and

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(vi) the conduct of the parties concerned in dealing with the property, after the sale.

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The Hon’ble Apex Court further observed that the petitioner was neither able to produce any evidence with regards to payment of amount of consideration money, i.e. what was the consideration amount, how such consideration money paid, how the suit property was purchased or who paid the consideration money nor any document related to the suit property.

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On the other hand, the respondent asserted that she purchased the suit property from her ‘Stree Dhan’ property and had the title deed and all documents related to the suit property and paid municipal tax all along.

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The court further observed that “in the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply Benami transaction. Source of money is, no doubt, an important factor but

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not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts Benami.”

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In the instant case, the very first substantial question of law relates to the burden of proof lies on the defendant, in view of the fact, there is presumption of jointness in the Hindu family.

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In view of the above settled proposition of law, the first substantial question of law appears to be not tenable at all. It is the initial burden of proof which lies upon the plaintiff and not defendant.

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In the instant case, the crux of the dispute lies in the acquisition of suit property through sale deed by the defendant No. 2 as self-acquired property or as Banamidar. The plaintiff has not been able to even produce the certified copy of sale deed dated 12.06.1959 nor he has ever challenged legality of aforesaid sale deed. It is only stated that the consideration money was paid through joint fund of the joint Hindu family but admittedly, there was only husband and wife i.e. the defendant No.2 and her husband alive at the time of purchase of the property. The plaintiff has not brought on record as to how the fund was collected, what was the consideration money, and how the same was paid, what was the intention of his father to purchase the property in the name of his wife. As against it, there is clear-cut evidence of defendant No.2 examined as D.W-1 categorically admits that the property was purchased through her own income through grocery shop, and her own Stree Dhan. She has also dealt with the property as her own and half of the property was transferred by executing sale deed. Moreover, the plaintiff/appellant has challenged only partial gift of deed to be void as opposed to the whole transaction to be void for want of title of the defendant No.2. It also appears that in the lifetime of her husband, no intention was expressed to show that the beneficial interest was not created in the name of wife. Therefore, the defendant No. 2 has always dealt with the suit property, exercising the exclusive right and title over it. Therefore, other substantial question of law formulated in this second appeal emanating

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from the main question does not appear to be substantial or pure question of law.

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In view of the above discussion and reasons, I do not find any legal substance in the contentions raised on behalf of the appellant and no merits in this appeal, which stands dismissed .

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Pending I.A.s if any, stands disposed of.

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Let a copy of this judgment along with the trial/appellate court record be sent back to the court concerned for information and needful.

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court Dated 14/07/2025 Basant/ A.F.R.

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10 S.A. No. 58 of 2011

Dharmendra Kumar v. Rukmini Devi And Anr.

Case brief

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Dharmendra Kumar v. Rukmini Devi And Anr.

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