Jharkhand High Court
Anant Mahto & Ors vs Dripnath Mahto & Ors on 1 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 41 of 2014
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Anant Mahto & Ors. .... .... .... Appellants
Versus
Dripnath Mahto & Ors. .... .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellants : Mr. Amar Kr. Sinha, Advocate
: Mr. K.K. Ambastha, Advocate
: Mr. Sumit Kumar, Advocate
For the Respondents : Mr. B.K. Prasad, Advocate
: Mr. Rohit Sinha, Advocate
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Order No.12 Dated- 01.10.2024
Heard the parties.
This appeal will be heard on the following substantial questions
of law:-
(i) Whether in view of the failure of the plaintiffs to prove the
fraud beyond reasonable doubt both the courts below
have committed perversity by holding that the gift deed
which has been marked Ext. 2/G is void ab initio by
ignoring the settled principle of law that undivided share
of a coparcener can be a subject matter of sale/transfer but
the possession cannot be handed over to the vendee as has
been held by the Hon'ble Supreme Court of India in the
case of Gajara Vishnu Gosavi vs. Prakash Nanasaheb
Kamble in Civil Appeal No. 1292 of 2022 dated 16.09.2009
reported in [2010 (1) JCR 7 (SC)]?
(ii) Whether both the courts below have committed a
perversity by not holding that there was a prior partition
between the plaintiffs and the defendants on the basis of
the inter-se transaction between the parties by way of gift
and sale in view of the judgment of the Division Bench of
Hon'ble Patna High Court in the case of Ram Bahadur
Nath Tiwary vs. Kedar Nath Tiwari & Ors. reported in
AIR 1977 Patna 59?
(iii) Whether both the courts below have committed perversity
by making out a case out of its own that the gift deed
which has been marked Ext. 2/G though was pleaded by
the plaintiffs was void because of practicing fraud and
fraud beyond reasonable doubt was not established by the
plaintiffs as is required in view of the settled principle of
law as has been reiterated by the Hon'ble Supreme Court
of India in paragraph no.7 in the case of Union of India
vs. Chaturbhai M. Patel & Co. reported in AIR 1976 SC
712; by holding that inter alia the gift deed executed by
Dukhu Mahto is void ab initio on the ground that the same
has been executed in respect of joint family property by a
coparcener without partition by metes and bounds, even
though the same was not the case of the plaintiffs?
Admit.
Call for the Lower Court Records.
Mr. Bhupal Krishna Prasad, Advocate receives notice of the
appeal on behalf of the respondent no.2. Appeal is already abated
against the respondent nos. 3 to 5.
The appellants are directed to file requisites for service of notice
on the respondent nos. 1 (a) to 1 (d) by registered post with A/D as
well as under process of the court within four weeks failing which; this
appeal shall stand dismissed without further reference to the Bench.
Rule is made returnable within six weeks.
In case, the requisites are filed, list this appeal after receipt of the
service report of the notice issued to the said respondents.
Sonu-Gunjan/- (Anil Kumar Choudhary, J.)
