Jharkhand High Court
Deo Nandan Gope And Others vs Sakuntala Devi And Others on 20 June, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 402 of 2016
Deo Nandan Gope and Others ... Defendants/Appellants
Versus
Sakuntala Devi and others ... ... Respondents
With
S.A. No. 393 of 2016
Deo Nandan Gope and Others ... Defendant/Appellant
Versus
Sakuntala Devi and others ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : 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
: Mr. Sumit Kumar, Advocate
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40/20.06.2025 The learned counsel for the parties have jointly submitted that
although hearing with respect to Second Appeal No. 393 of 2016 was
concluded yesterday but they want to make further submissions so that
the substantial question of law be correctly decided by this court.
2. Both the learned counsels have no objection with respect to
further submissions in connection with Second Appeal No. 393 of
2016. Consequently, further submissions have been heard and is
recorded as under: -
3. The learned counsel for the appellants has submitted that the
property of Gudru Gope is self-acquired and his next generation
would not constitute coparceners amongst themselves and therefore
upon death of two full brothers of Girdhari Gope the property would
devolve upon Girdhari Gope and therefore Girdhari Gope would be
allocated the share of 3/4th of the property. He submits that each of the
brothers who were sons of Gudru Gope would constitute separate
coparcener with respect to the property as and when the 3 rd generation
is born.
4. The learned counsel for the respondents has submitted that so
far as Schedule-B property is concerned, it consists of Khata No. 26
and 28 and the Khatiyan in Khata No. 26 reveals that it was shown in
the name of Girdhari Gope on one part and in the name of Ram Gope
son of Binu Gope and grand son of Bhola Gope on 2nd part. However,
so far as Khata No. 28 is concerned, from the Khatiyan there is no
separate bifurcation with respect to the shares. The learned counsel
submits that the record of rights was challenged by the appellants but
they did not succeed and accordingly the half and half share of
Girdhari Gope on one hand and branch of Bhola Gope on another has
been rightly done.
5. The learned counsel for the respondents has also referred to
Exhibit-4 to submit that the Award was also prepared upon acquisition
of land in case No. 16 of 1987-88 as back as in the year 1989 on the
basis of compromise and it was prepared half and half. However, upon
perusal of the said document he has not been able to point out as to
which plot number it was relating as there is no mention of any Khata
number on the same. The joint compromise has also not been brought
on record. The learned counsel has submitted that the dispute in
connection with compensation is pending before this court as per the
order passed by the learned First Appellate Court.
6. The learned counsel for the respondents has referred Hindu
Law by Mulla 20th Edition 1st Volume page no. 360. The learned
counsel while referring to the aforesaid page has referred to Article
212 dealing with formation of coparcenary and has submitted that
conception of a joint Hindu Family constituting a coparcenary is that
of a common male ancestor with his lineal descendants in the male
line within four degrees counting from and inclusive of such ancestor
(or three degree exclusive of the ancestor). No coparcenary can
commence without a common male ancestor, though after his death, it
may consist of collaterals such as brothers, uncles, nephew cousins
etc. The learned counsel while referring to this has submitted that all
the four sons of Gudru Gope, constituted coparcenary. He has relied
upon a judgment passed by the Hon'ble Supreme Court reported in
(2020) 9 SCC 1 (Vinita Sharma versus Rakesh Sharma) and has
referred to paragraph no. 66,69,73 and 129 to submit that coparcenary
continues till there is actual partition. Therefore, the learned court has
rightly held that property was coparcenary property.
7. In response, the learned counsel for the appellants has
submitted that in order to form coparcenary qua the property there has
to be a coparcenary and also coparcenary property. The learned
counsel submits that the brothers/sons of Gudru Gope did not acquire
the property as coparcenary property and therefore each branch of four
sons along with their descendants formed separate coparcenary with
respect to coparcenary property acquired by their respective father.
8. Arguments in Second Appeal No. 393 of 2016 is concluded.
9. With respect to Second Appeal No. No. 402 of 2016, the
learned counsel for the respondents has submitted that illegality in the
finding recorded by the learned courts by itself is not the substantial
question of law but only in case of perversity the same can be a
substantial question of law. Both the learned courts founds that
Schedule-B property was coparcenary property.
10. The learned counsel for the respondents has referred to the
judgment passed by the Hon'ble Supreme Court reported in (2003) 10
SCC 310 which has also relied upon by the learned counsel for the
appellants and has submitted that though there is no presumption that
the property is a joint family property merely because there is an
existence of joint family but once the nucleus is proved from which
the joint family property could be acquired the onus shifted upon the
appellants to plead and prove the source of income from which they
acquired the schedule-C property. The learned counsel submits that
there is finding of the learned courts that there is nucleus in the family.
11. The learned counsel for the respondents has submitted that the
learned 1st appellate Court has considered not only the pleadings of the
parties but also the evidence on record and has passed a reasoned
judgment. There is no occasion for this court to enter into a finding of
fact.He has relied upon judgement reported in 1994 AIR AP 134, para
30, to submit that in the said judgement a reference has been made to
the earlier judgement of the Hon'ble Supreme Court where it has been
held that separate property of a member of joint Hindu family may be
impressed with the character of joint family property if it is voluntarily
thrown into the common stock with the intention of abandoning
separate claim therein.
12. The learned counsel for the appellants in response has
submitted that it was the specific case in the plaint that two brothers
got property in their own name but at the same time it was pleaded
that the property was acquired from joint family fund. The learned
counsel submits that not only the existence of nucleus but also the
sufficiency of nucleus is required to be proved as the income
generated from the joint family property or joint family fund should be
enough to sustain the acquisition of the property which is claimed to
be joint family property in spite of standing in the name of Hindu
nuclear family. He has again referred to the judgement passed by the
Hon'ble Supreme Court reported in (2003) 10 SCC 310 and has
referred to the earlier judgments referred to by the Hon'ble Supreme
Court at paragraph 10, 11 and 13 to submit that mere existence of
nucleus is not sufficient; adequacy of nucleus is also required to be
proved. He has also referred to paragraph 5 of the plaint.
13. Arguments in both the cases are concluded.
14. Judgment is reserved.
(Anubha Rawat Choudhary, J.)
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