Jharkhand High Court
Puran Raj Jajware vs Markandey Raj Jajware on 28 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.236 of 2005
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1. Puran Raj Jajware S/o Late Bharat Raj Jajware
2. Fanu Raj Jajware S/o Puran Raj Jajware
3. Utpal Raj Jajware S/o Puran Raj Jajware
All resident of Baidyanath Lane of Deoghar Town, P.O. B. Deoghar,
P.S., Sub Division & District Deoghar
.... .... .... Appellants
Versus
1. Markandey Raj Jajware S/o Bharat Raj Jajware
2. Hari Narayan Jajware S/o Bharat Raj Jajware
Both resident of Harihar Bari, Bilashi Town, P.O. B. Deoghar,
P.S., Sub Division & District Deoghar
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Ram Prakash Singh, Advocate
For the Respondents : Mr. Rahul Kumar Gupta, Advocate
Mr. Onkar Nath Tiwary, Advocate
C.A.V. ON 09.03.2022 PRONOUNCED ON 28 /03/2022
1. Appellants are the defendants who are before this Court against the
judgment passed by District Judge, Deoghar in Title Appeal No.54 of 2003
whereby and whereunder the suit decreed by the trial Court has been affirmed
in appeal.
2. The parties shall be referred to by their placement in the suit and shall
include their legal representatives substituted at different stages.
3. The plaintiffs filed the suit for declaration of title and recovery of
possession with respect to suit land detailed in schedule of the plaint. The case
of the plaintiff in brief is that both sides are related as per the genealogy set
out in the plaint which is as under:-
Shib Raj Jajware
Bharat Raj Jajware
(Died in 1965)
Mandakini Devi
(Died in 1989)
Padam Raj Jajware Puran Raj Markendey Raj Hari Narain
(Died on 20.03.1994) (D-1) (P-1) (P-2)
Fanraj Utpal Raj
(D-2) (D-3)
4. It is the case of the plaintiff that the parties are heirs and descendants
of Maharaj Jajware. The mother of both sides Mandakini Devi had acquired
Mourasi Mokarrari ancestral property of land 03 Katha and 01 Dhur
pertaining to Plot No.83 D/3 in Mouza Neelkanthpur @ Nurpur, Thana 415,
District Deoghar by registered Patta Kabuliyat executed in the year 1950 by
the then Lekhraj Ghatwal Zamindar Sah Muzaffar Eqbal Saheb. It is
contended that after the death of Bharat Raj Jajware sometimes in 1965, all
four brothers along with plaintiffs separated and they amicably partitioned
their property. Mandakini Devi executed deed of gift (Ext1) in favour of her
two sons Markandey Jajware and Hari Narayan Jajware by registered gift of
deed on 02.05.1972 and put the plaintiffs in physical possession. The plaintiff
also got a house constructed after getting the building plan duly sanctioned.
The eldest brother Padam Raj Jajware was bachelor and had no issue and he
was provided accommodation by the plaintiffs in their house with an
understanding that after his death, possession will revert back to the plaintiffs.
A deed of partition (Ext E) in pursuance to the family settlement was executed
on 19.01.1985 to keep the sentiment of the eldest brother Padamraj Jajware.
Mandakini Devi died in the year 1989. Padam Raj Jajware became seriously
ill and defendant no.1 had occasion to reside in the said property to nurse
ailing Padam Raj Jajware, who died on 20.03.1994, but even after that
defendant no.1 overstayed in the suit property.
5. The suit has been contested by defendant Nos.1, 2 and 3, who have
filed joint written statement. The defendants have disputed that genealogical
table to that extent that Shib Raj Jajware son of Maharaj Jajware had five
more brothers, but this denial has no bearing in the present case.
6. It is the definite case of the defendants that suit property was the joint
family property acquired by their father of plaintiff Bharat @ Bharat Narayan
Jajware in the name of his wife Smt. Mandakini Devi for the purpose of
construction of residential house and in due course since after his death,
constructed house on it and from the income of priesthood (Jajmanke Britee),
the building was constructed from joint fund. The parties separated not in
1965 as asserted in the plaint but in the year 1989 after the death of mother.
7. On the basis of pleadings of the parties following issues have been
framed by the Trial Court:-
(i) Whether the suit land in mouza Nilkanthpur was acquired by Bharat Raj
Jajware in the name of his wife Smt. Mandakini Devi or the same was
the exclusive property of suit Mandakini Devi?
(ii) Whether there was a separation in 1965 as alleged by the plaintiffs
amongst the four sons of Bharat Raj Jajware and Jajmanika was
partitioned as alleged?
(iii) Whether the suit land was purchased by Bharat Raj Jajware in the name
of his wife Mandakini Devi or it was her self acquired property or it was
mitakshara coparcenary property or defendants had a share in it?
(iv) Whether said Mandakini Devi had rights to transfer the suit property by
gift as alleged?
(v) Whether the suit property was exclusive property of the Mandakini
Devi or it was the coparcenary property?
(vi) Whether the deed of gift made in favour of the plaintiffs was valid and
the constructions made by the plaintiffs was from their own fund or it
was jointly made by the plaintiffs and defendants?
(vii) Whether defendants have the right title and interest over the suit
property?
(viii) Whether the plaintiffs have right and title over the suit property?
8. Learned Trial Court decreed the suit and recorded finding of facts
that the suit property was the self-acquired property of Mandakini Devi,
mother of both sides, and by operation of Section 14 of the Hindu Succession
Act she became the absolute owner thereof having all rights to alienate the
same. It has also been held that the property was not acquired by her husband
and having a valid right to alienate the property Mandakini Devi, executed a
valid deed of gift in favour of the plaintiffs.
9. Learned Appellate court concurred with the findings and dismissed
the suit.
10. This appeal has been admitted to be heard on the following
substantial question of law:
i. Whether the judgment and decree passed by the court below is vitiated
in law for non-consideration of Ext. E which is said to be deed of
partition of the year 1985?
ii. Whether the finding arrived at by the court below on the question of
title is perverse in law?
11. The suit property is a homestead plot measuring about 3808 sq. ft.
including two rooms inside the compound wall. Plaintiff nos. 1 and 2 and
defendant no. 1 are full brothers as shown in the genealogical table stated
above. The plaintiffs claim to the suit property is based on a registered deed of
gift executed in their favour by their mother. The due and valid execution of
the registered deed of gift has been accepted by both the Courts below. The
claim of the defendants that the suit property was purchased by the father in
the name of their mother has been refuted by the Courts below. This deed of
gift was within the knowledge of the defendants but had never been
challenged. There is a presumption of due execution of a registered deed of
gift and heavy onus lies on the party impeaching its validity. The fact of fraud
or collusion has to be pleaded and proved. It has been held in Abdul Rahim v.
Sk. Abdul Zabar; (2009) 6 SCC 160
"Indisputably, the deed of gift is a registered one. It contains a
clear and unambiguous declaration of total divestment of
property. A registered document carries 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".
12. The first substantial question of law that has been formulated is
whether the learned Courts below failed to consider Exhibit E which is deed
of family settlement between the plaintiffs and Padam Raj Jajware in the year
1985. The plaintiffs claim their share in the suit property of Padam Raj
Jajware since he died issueless therefore being the brother was entitled to the
share of his property in terms of Section 8 of the Hindu Succession Act,1956.
13. From para 22 of the Appellate Court judgment, it is apparent that
Exhibit E was considered and discussed by the Appellate Court. It has been
noted by the First Court of Appeal that from this document, it is manifest that
the suit property was acquired by Mandakini Devi and in order to
accommodate Padam Raj Jajware, the said document was executed.
Registered deed of Partition No.182 dated 19.01.1985 was executed among
Padam Raj Jajware, Markandeyraj Jajware (P1) and Hari Narayan Jajware
(P2). In this deed of partition, the defendant no.1 was not even a party. Once
the deed of gift was executed by the mother in favour of the plaintiffs with
respect to the suit property which was her self-acquired property, title to the
property was conveyed to the plaintiffs and it became the absolute property of
the plaintiffs. The prerequisite for partition is that it should be a joint family
property and here since the suit property was gifted by the mother to the
plaintiffs, therefore it became their absolute property and cannot be subject
matter of partition. The title of the property did not change by the subsequent
deed of family settlement (Ext E) among the plaintiffs and Padam Raj Jajware,
excluding the present defendants. It has been held in Theiry Santhanamal v.
Viswanathan; (2018) 3 SCC 117
"Partition deed can be entered into between the parties who
are joint owners of the property. In case the father, namely,
Oubegaranadin herein wanted to give property to his sons, of
which he was absolute owner, it could be done by will or by
means of gift deed/donation, etc".
Ext.1-A, the municipal rent receipt of 1979-80 was in the name of
plaintiffs and therefore the contention of the appellant that gift deed was not
acted upon, is not tenable.
Both the substantial questions of law are accordingly answered in
favour of the plaintiffs/respondents.
Learned Courts below have fully appreciated the evidence on record
and the concurrent finding of fact does not suffer from any infirmity.
The appeal is accordingly dismissed with cost.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th March, 2022
AFR / Anit
