Deo Nandan Gope vs (A) Sakuntala Devi W/O Late Suraj ...
2025 Latest Caselaw 4082 Jhar

Jharkhand High Court

Deo Nandan Gope vs (A) Sakuntala Devi W/O Late Suraj ... on 19 June, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI

               S.A. No. 402 of 2016

 1. Deo Nandan Gope
 2. Umesh Gope
 Both S/o Goberdhan Gope, R/o Village- Bujurgai- Zamira, P.S. &
 P.O. Patratu, District- Ramgarh          ...     ...      Appellants
                        Versus
 1. (a) Sakuntala Devi W/o Late Suraj Narayan Gope
    (b) Rinku Yadav, Son of Late Suraj Narayan Gope,
    (c) Mithun Yadav, Son of late Suraj Narayan Gope,
    All are residents of Bujurga, P.O. & P.S. Patratu, District-
    Ranchi, Jharkhand
 2. Santosh Gope, S/o Late Rama Gope @ Rima Gope, Resident of
    Village- Bujurga Zamira, P.O. & P.S. - Patratu, District -
    Ramgarh.
 3. Smt. Sankari Devi, W/o Prabhu Gope
 4. Smt. Hiran Devi, W/o Kunwar Gope,
    Both D/o Late Rama Gope @ Rima Gope, Resident of Village
    Hesalong, P.O. & P.S. - Giddi, District - Hazaribagh.
 5. Smt. Peyaso Devi, W/o Mahadeo Gope, D/o Late Rama Gope
    @ Rima Gope, Resident of Village - Bujurga Zamira, P.O. &
    P.S. - Patratu, District - Ramgarh.
 6. Lato Gope @ Latlaha Gope.
 7. (a) Antri Devi, W/o Late Binu Gope alias Bindeshwari Gope
    (b) Prem Gope, S/o Late Binu Gope alias Bindeshwari Gope
    (c) Sarita Devi, W/o Uday Gope, D/o Late Binu Gope alias
    Bindeshwari Gope
    (d) Chhotelal Gope, Son of Binu Gope @ Bindeshwari Gope
    (e) Vikash Gope, Son of Late Binu Gope @ Bindeshwari Gope
    (f) Sunita Kumari, Daughter of Late Binu Gope @ Bindeshwari
    Gope
    Respondent Nos.a,b,d,e,f are residents of Bujurg Jamira, P.O.
   Barkakana, P.S. - Patratu, District Ramgarh, Jharkhand, Pin
   829102 and
   Respondent no. c is the resident of village - Bailgadda, P.O.
   Dunduwa, P.S. Simariya, District Chatra, Jharkhand, Pin
   825103.
                ...      Plaintiffs/Cross Objectors/Respondents
8. Most. Parul, W/o Late Dimar Gope, Resident of Village
   Bujurga - Zamira, P.O. & P.S. Patratu, District - Ramgarh.
9. Smt. Khema Devi, W/o Mahabir Gope, Resident of Village -
   Kanjagi, P.O. & P.S. Mandu, District - Ramgarh.
10. Damodar Ohdar
11. Janardan Ohdar
   Both S/o Late Kalindar Yadav, Resident at Village - Pusho,
   P.O. & P.S. Sisai, District- Gumla.
12. Ram Sahay Gope
13. Mukul Gope
   Both S/o Late Ledo Gope, Resident of Village- Telyatu, P.O. &
   P.S. - Patratu, District - Ramgarh.
         ........ Defendants/Appellants/Proforma Respondents
                     With
              S.A. No. 393 of 2016
1. Deo Nandan Gope
2. Umesh Gope
Both S/o Goberdhan Gope, R/o Village- Bujurgai- Zamira, P.S. &
P.O. Patratu, District- Ramgarh.
         ...      ...      Defendants/Appellants/Appellants
                       Versus
1. (a) Sakuntala Devi W/o Late Suraj Narayan Gope
   (d) Rinku Yadav, Son of Late Suraj Narayan Gope,
   (e) Mithun Yadav, Son of late Suraj Narayan Gope,
   All are residents of Bujurga, P.O. & P.S. Patratu, District-
   Ranchi, Jharkhand



                         2
 2. Santosh Gope, S/o Late Rama Gope @ Rima Gope, Resident of
   Village- Bujurga Zamira, P.O. & P.S. - Patratu, District -
   Ramgarh.
3. Smt. Sankari Devi, W/o Prabhu Gope
4. Smt. Hiran Devi, W/o Kunwar Gope,
   Both D/o Late Rama Gope @ Rima Gope, Respondent no.3
   Resident of Village Hesalong, P.O. & P.S. - Giddi, District -
   Hazaribagh.
   Resident No.4 R/o -Bujurg Zamira, P.S. - Patratu, District -
   Hazaribagh at present - Ramgarh
5. Smt. Peyaso Devi, W/o Mahadeo Gope, D/o Late Rama Gope
   @ Rima Gope, Resident of Village - Bujurga Zamira, P.O. &
   P.S. - Patratu, District - Ramgarh.
6. Lato Gope @ Latlaha Gope.
7. (a) Antri Devi, W/o Late Binu Gope alias Bindeshwari Gope
   (b) Prem Gope, S/o Late Binu Gope alias Bindeshwari Gope
   (c) Sarita Devi, W/o Uday Gope, D/o Late Binu Gope alias
   Bindeshwari Gope
   (d) Chhotelal Gope, Son of Binu Gope @ Bindeshwari Gope
   (e) Vikash Gope, Son of Late Binu Gope @ Bindeshwari Gope
   (f) Sunita Kumari, Daughter of Late Binu Gope @ Bindeshwari
   Gope
   Respondent Nos.a,b,d,e,f are residents of Bujurg Jamira, P.O.
   Barkakana, P.S. - Patratu, District Ramgarh, Jharkhand, Pin
   829102 and
   Respondent no. c is the resident of village - Bailgadda, P.O.
   Dunduwa, P.S. Simariya, District Chatra, Jharkhand, Pin
   825103.
                 ...    Plaintiffs/Respondents/Respondents
8. Most. Parul, W/o Late Dimar Gope, Resident of Village
   Bujurga - Zamira, P.O. & P.S. Patratu, District - Ramgarh.
9. Smt. Khema Devi, W/o Mahabir Gope, Resident of Village -
   Kanjagi, P.O. & P.S. Mandu, District - Ramgarh.
10. Damodar Ohdar

                         3
                      11. Janardan Ohdar
                       Both S/o Late Kalindar Yadav, Resident at Village - Pusho,
                       P.O. & P.S. Sisai, District- Gumla.
                     12. Ram Sahay Gope
                     13. Mukul Gope
                       Both S/o Late Ledo Gope, Resident of Village- Telyatu, P.O. &
                       P.S. - Patratu, District - Ramgarh.
                     ........ Defendants/Appellants/Proforma Respondents
                                       ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

                For the Appellant          : Mr. Rahul Kumar Gupta, Advocate
                                           : Mr. Rakesh Kumar Singh, Advocate
                                           : Ms. Swati Singh, Advocate
                                           : Mr. Surya Prakash, Advocate
                For the Respondents        : Mr. S.K. Sharma, Advocate
                                   ---

39/19.06.2025 Counsel for the parties are present.

2. It has been submitted by the learned counsel for the appellants that the name of common ancestor of the parties was Gudru Gope, whose date of death has not been placed on record. He had two wives; termed as first wife and second wife. However, their dates of death have also not been placed on record. There is no finding that the children born out of wife termed as second wife were illegitimate children. It is not in dispute that two sons of first wife had expired but the dates of death of two sons of the first wife are also not available on record.

3. It is not in dispute that the property was acquired by Gudru Gope and upon his death, it became ancestral property. The story of previous partition has been denied by the learned court and such finding has attained finality as no substantial question of law has been framed concerning previous partition. Though the date of death of two sons has not come on record but it stood admitted from the side of the plaintiffs that two sons of Gudru Gope expired after the death of Gudru Gope.

4. The property of Gudru Gope was self-acquired by him. Upon his death, it became the ancestral property of all his sons but still it did

not constitute a coparcenary property as his sons did not constitute a coparcenary qua the property. He has submitted that the first generation does not form a coparcenary. It is the second with third generation which would form the coparcenary with respect to the property of the first generation inherited by the second generation as ancestral property.

5. The core arguments of the appellants are that the property involved in this case was the self-acquired property of Gudru Gope and upon his death, it devolved upon all the four brothers but the four brothers got the property as ancestral property but not as coparcenary property as the four brothers do not constitute a coparcenary qua the self-acquired property of Gudru Gope. He has also submitted that had the brothers' further children then the portion of the property which would devolve upon one or the other brother would constitute a coparcenary property with his sons. He has also submitted that Hindu coparcenary is narrower than the joint Hindu family and ancestral property is just a species of coparcenary property. He has referred to Clause 210, 211 and 212 of Mulla.

6. The learned counsel for the appellants has submitted that upon the death of Gudru Gope, the four sons did not constitute a coparcenary qua the self-acquired property of Gudru Gope, although upon his death, the property constituted ancestral property; further upon death of two sons, the property would not devolve by survivorship but would devolve upon full brother and not half-brother by succession referable to Section 18 of the Hindu Succession Act.

7. The learned counsel has submitted the finding of the learned first appellate court is that because all the four brothers constitute coparcenary therefore the property would devolve by survivorship and not by succession. He submits that the four brothers did not constitute coparcenary qua the self-acquired property of Gudru Gope and therefore the property would devolve by succession and not by survivorship.

8. The learned counsel for the respondents submits that the perusal of the plaint reveals that the second and third generation of

Gudru Gope were seeking partition of property which was self- acquired by Gudru Gope. He submits that even if the arguments of the appellants are accepted then also the property was coparcenary property at the hand of second and third generation of Gudru Gope.

9. The learned counsel for the respondents has submitted that the suit having been filed by the 3rd generation was in any way coparcenary property in their hand and therefore the property would have devolved through survivorship and since two brothers had expired therefore the property devolved half and half between Girdhari Gope and Bhola Gope. He has submitted that Section 18 of the Hindu Succession Act has no applicability as all the four brothers who were sons of Gudru Gope stood on equal footing and two of them died issueless. The plaintiffs and defendants do not stand in the same category and the level of their generation is different. The learned counsel has submitted that for the applicability of Section 18, the relationship should be at the same level which is not applicable in the present case. He has relied upon a judgment passed by the Hon'ble Patna High Court reported in 2006 AIR Patna 169 (Ram Singari Devi and Ors. Vs. Govind Thakur and Ors.).

10. In order to explain the concept of coparcenary, the learned counsel for the respondents has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2016) 4 SCC 68 (Uttam versus Saubhag Singh and Others).

11. The learned counsel for the respondents has submitted that in the absence of date of death of concerned family members the right over the property in the hand of one or the other family members of the joint family did not crystalize as a coparcenary property.

12. The learned counsel for the appellants in response has submitted that as per Hindu Law, upon the death of a Hindu, the devolution of the property takes place immediately irrespective of actual partition. He submits that upon death of Gudru Gope, it devolved equally upon all the four sons and upon death of two full brothers of Girdhari Gope, their property would devolve upon

Girdhari Gope and consequently the property of Girdhari Gope would constitute 3/4th and 1/4th to only son of Basudeo Gope.

13. Learned counsel for the parties have concluded their argument with respect to Second Appeal No. 393 of 2016 is concerned.

14. The learned counsel for the appellants submits that this second appeal relates to Schedule-C property. He has referred to issue no. (9) decided by the learned Trial Court vide paragraph 45 onwards and has submitted that it has been held that merely because there was a joint family that does not mean that the property was joint family property. He has also submitted that the property under Khata No. 25 and 27 on the one hand and 113 and 114 on the other hand was recorded in the name of Girdhari Gope and Bhola Gope respectively and the entry in the record of rights with respect to such entry was never challenged by any of the partners. The entry has attained finality and the respondents never challenged the separate entry with respect to the concerned properties. The learned counsel has submitted that nucleus to acquire the property was never proved and consequently the property was rightly held to be the self-acquired property of Girdhari Gope and Bhola Gope respectively and was kept out of partition holding that there was no unity of title and possession between the parties with respect to Schedule-C property in the plaint.

15. He submits that such finding has been reversed by the learned 1st Appellate Court in the Cross Appeal whose discussion commences from paragraph 25 onwards in the 1st Appellate Court's judgment and in the 1st appellate court's judgment there is no finding with respect to the nucleus to acquire the property.

16. The learned counsel has submitted that the case has been decided primarily based on pleadings of the respective parties and not on the basis of evidences adduced before the court. The learned counsel has submitted that in order to claim that the property was joint family property, the nucleus was required to be proved by the person who claimed that it was a joint family property. Nucleus having not

been proved and the property duly recorded in the record of rights, the property was self-acquired property of the respective parties. He submits that the judgment passed by the learned 1 st Appellate Court is fit to be set aside. He has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2003) 10 SCC 310 (D.S. Lakshmaiah and another) paragraph 17 and 18 on the point of onus/burden of proof with regard to joint family property.

17. Post this case tomorrow i.e. 20.06.2025 for the argument of learned counsel for the respondents.

(Anubha Rawat Choudhary, J.) Saurav/Rakesh/Binit