Jharkhand High Court
Dharmendra Kumar vs Rukmini Devi on 14 July, 2025
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]
--------
Dharmendra Kumar, S/o Late Gopi Sao, resident of Village-Rajdhanwar,
P.O. & P.S. - Dhanwar, District-Giridih ... ... Appellant/Plaintiff
Versus
1. Rukmini Devi, W/o Birkeshwar Prasad,
2(a) Sagar Shiva Prasad
2(b) Chandan Kumar,
Both sons of Late Birkeshwar Prasad & R/0 Rajdhanwar, P.O,
P.S.-Dhanwar, Giridih
2(c) Puja Kumari, D/o Late Birkeshwar Prasad,
R/o Aman Chandni Chowk, P.O., P.S. Rajdhanwar, Giridih
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.)
2(e) Jyoti Devi, W/o Dharmendra Kumar, D/o Late Birkeshwar Prasad,
R/o Vikas Nagar, P.O. & P.S. Hehal, Ranchi,
2(f) Sujata Devi, W/o Manai Kumar, D/o Late Birkeshwar Prasad, R/o
Village, P.O, P.S. Hisua, District Nawada, Bihar,
2(g) Rukmani Devi, W/o Late Birkeshwar Prasad, R/o Chandni
Chowk, P.O., P.S.-Rajdhanwar, Giridih
... ... Respondents/Defendants
--------
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.
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
--------
JUDGMENT
C.A.V. on 02.07.2025 Pronounced on 14/07/2025
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.
2025:JHHC:18991
2. 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.
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.
3. 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
2025:JHHC:18991
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.
4. 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.
5. 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
2025:JHHC:18991
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.
6. 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:
"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?
2. 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?
3. 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?
2025:JHHC:18991
4. 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?"
7. 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
2025:JHHC:18991
and Ors., AIR 1950 PAT 33".
8. 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.
9. 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.
2025:JHHC:18991
10. 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.
11. 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.
Presumption of law:
12. 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."
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
2025:JHHC:18991
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.
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:-
(i) the source from which the purchase money came,
(ii) the nature and position of the property, after the purchase,
(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,
(v) the custody of the title deeds after the sale, and
(vi) the conduct of the parties concerned in dealing with the
property, after the sale.
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.
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.
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
2025:JHHC:18991
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."
13. 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.
14. 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.
15. 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
2025:JHHC:18991
from the main question does not appear to be substantial or pure question
of law.
16. 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.
17. Pending I.A.s if any, stands disposed of.
18. Let a copy of this judgment along with the trial/appellate court
record be sent back to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court
Dated 14/07/2025
Basant/A.F.R.
