Jharkhand High Court
Sitaram Chauhan vs Smt. Moteshwari Devi on 3 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 203 of 2023
Sitaram Chauhan, aged about - 53 years, son of Late Munilal
Chauhan, Resident of Kokar, Haidar Ali Road, P.O.- Kokar, P.S.-
Sadar, District - Ranchi - 834001 (Jharkhand)
... ... Plaintiff/Appellant/Appellant
Versus
1. Smt. Moteshwari Devi, wife of Late Munilal Chauhan
2. Jayram Chauhan son of Late Munilal Chauhan
3. Hareram Chauhan, son of Late Munilal Chauhan
4. Bhupesh Chauhan, son of Late Munilal Chauhan
All above respondents no. 1 to 4 are residents of Kokar, Haider
Ali Road, P.O.- Kokar, P.S.- Sadar, District- Ranchi.
5. Smt. Urmila Devi, wife of Shambhu Chauhan, daughter of Late
Munilal Chauhan, resident of Village- Baregaon, P.O.-
Semrajpur, P.S.- Haidarpur, District - Mau (U.P.) - 221706.
6. Pramila Devi, wife of Ajay Chauhan and D/o Late Munilal
Chauhan, resident of Village - Sarwanpur, Semri, Jamalpur,
P.O. & P.S.- Kopa, District -Mau (U.P.)
... ... Defendants/Respondents/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Soumitra Baroi, Advocate
: Mr. Rakesh Kumar No.2, Advocate
For the Respondents :
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09/03.03.2025 Heard the learned counsel appearing on behalf of the appellant.
2. This second appeal has been filed against the judgment dated
31.05.2023 and decree dated 08.06.2023 passed by Additional Judicial
Commissioner - XXI, Ranchi in Civil Appeal No.56 of 2018 whereby
the appeal has been dismissed, affirming the judgment dated
25.08.2017 and decree dated 01.09.2017 passed by Civil Judge, Senior
Division - X, Ranchi in Partition Suit No.42 of 2010 whereby the suit
filed by the plaintiff has been dismissed.
3. The learned counsel for the appellant submitted that the suit
was filed for partition claiming one-seventh portion of the suit land in
which a house is also constructed, the details of which were given in
Schedule A to the plaint, and for appointment of survey knowing
pleader commission for preparation of separate takhta for the plaintiff
with cost.
4. He submitted that the suit property was purchased by late
Munilal Chouhan in the year 1991, in the name of the mother of the
plaintiff, and as per the plaint, it was a Benami property and therefore,
after death of Munilal Chouhan, the property was to be partitioned. He
submitted that the specific case of the plaintiff was that his mother had
no personal income and she was a house lady and was illiterate. He
also submitted that the plaintiff had also made substantial contribution
in the construction of the house over the property and therefore, the
suit property was required to be partitioned.
5. The learned counsel further submitted that the Defendant No.2
had also filed a counter claim on the basis of transfer of property by
the mother in favour of the Defendant Nos.2 and 4 during the
pendency of the suit. The learned counsel has submitted that if the suit
property was a benami transaction in the name of mother, then under
such circumstances, the transfer was hit by lis pendens and
consequently the counter claim could not have been allowed.
6. The learned counsel further submitted that the correspondences
were placed on record to show that the plaintiff had contributed in the
construction of the building on the suit property. The learned counsel
submitted that aforesaid aspects of the matter have not been
considered by the learned appellate court, and therefore, the appeal be
admitted. He submitted that the proposed substantial questions of law
have been filed on behalf of the appellant.
7. The proposed substantial questions of law filed on behalf of the
appellant are as under:
"1. Whether the suit property was purchased by Munni Lal Chauhan in
the name of his wife Moteshwari Devi, hence it is a joint family property
at the hands of the plaintiff and defendants on the demise of Munni Lal
Chauhan and the appellant is entitled to 1/7th share in the same?
If yes whether or not the Ld. Trial Court and Appellate Court below has
committed legal wrong in dismissing the Partition Suit and Civil
Appeal?
2. Whether the Defendant No.1 Moteshwari Devi did not have sufficient
means to purchase the suit property or make construction thereupon nor
any cogent evidence has been laid to show that she has sufficient means
and income to purchase the suit properly and make construction
thereupon and that Ld. Courts below have misinterpreted and
misconstrued the provisions of Benami Transaction (Prohibition) Act,
1988?
3. Whether both the lower courts have wrongly decreed the suit and that
the sale deed on the basis of which the defendant no. 2 sought relief by
way of counter claim was hit by the principle of lis pendens u/s 52 of the
Transfer of the Property Act as the same was executed by the defendant
no. 1 on 24.06.2010 after the institution of suit hence the allowing the
counter claim of the defendant no.2 is bad in law?"
8. The learned counsel for the appellant relied upon the judgment
passed by the Hon'ble Supreme Court reported in (2018) 16 SCC 645
(Vinod Kumar Dhall v. Dharampal Dhall), paragraph 10, 11 and 16 and
also the judgment passed by Hon'ble Allahabad High Court reported
in 2001 SCC OnLine Allahabad 416 (Kuldeep Sharma and others -vs-
Satyendra Kumar Sharma and others), paragraph 31, to submit that in a
case where Hindu husband purchases property in the name of his wife,
it is to be presumed to be a benami transaction unless otherwise is
shown.
9. After hearing the learned counsel for the appellant, this Court
finds that the sole property which was subject matter of partition was
the property standing in the name of Defendant No.1, the mother of
the plaintiff. It was claimed in the plaint that Munilal Chouhan, the
father of the plaintiff, had purchased the property by benami name of
the Defendant No.1, and therefore, the partition of the property was
sought for.
10. On the other hand, the Defendant No.1 had stated in the written
statement that she had purchased the property by her stridhan and with
the help of the money from Defendant No.2 and the plaintiff was
allowed to reside in the suit house in the year 2003 and got permissive
possession. It was also stated that she had transferred the suit land and
structure in favour of defendant nos.2 to 4 for consideration amount of
Rs. 9,00,000/- and that the Defendant No.1 also stated that the plaintiff
separated his mess after employment and got his proportionate share
in the ancestral property in the district Mau at UP. An objection was
also raised that the entire property was not the subject matter of the
partition suit. The Defendant No.2 supported the Defendant No.1 and
stated that the suit property including land and structure was acquired
by him through registered deed of sale dated 31.10.1991 and he came
in possession and the suit property was purchased by Defendant No.1
from her stridhan. The Defendant No.3 and Defendant No.5 had
admitted the content of the plaint and claimed their share in suit
property.
11. Written Statement on behalf of the Defendant No.1 was filed on
17.08.2010 and Written Statement-cum-Counter Claim was filed on
behalf of Defendant No. 2. Separate Written Statement was filed by
Defendant No.3. Defendant No. 4 was debarred from filing Written
Statement, vide Order dated 17.08.2010. An ex parte order was passed
against Defendant No. 6, vide Order Dated 06.12.2010. Rejoinder
against the Counter Claim of Defendant No.2 was filed by the Plaintiff
on 09.02.2011, which was treated as Written Statement to the Counter
Claim. The Plaintiff in the rejoinder against the Counter Claim of
Defendant No. 2 stated that Counter Claim was not maintainable and
ad valorem court fees was not given by the Defendant No.2 and
denied the claim of Defendant No. 2 and also denied that the suit
property was purchased from Stridhan of Defendant No.1. It was also
asserted that Defendant Nos. 2 and 4 obtained the sale deed dated
26.10.2010, which was much after filing the suit and sale deed
executed by Defendant Nos. 2 and 4 on 24.06.2010 was a fraudulent
paper transaction and as such the sale deed dated 24.06.2010 was null
and void ab initio and not binding upon the plaintiff or the other
defendants.
12. On the basis of the pleadings, following issues were framed by
the learned Trial Court.
"1. Whether the suit is maintainable in its present form?
2. Whether the plaintiffs have any valid cause of action for the suit?
3. Whether suit is bad for non-joinder of necessary parties.
4. Whether the plaintiff is entitled to relief claimed as per para 22 of the
plaint.
5. Whether the defendant is entitled to relief claimed as para 19 of his
written statement-cum-counter claim?
6. Is the suit is barred by principle of waiver, estoppel and acquiescence
as well as limitation?
7. Is the suit barred under provision of section 34 and 19(b) of the Specific
Relief Act?"
13. Before the learned Trial Court, it was not in dispute that
Munilal Chauhan was the common ancestor of the plaintiff and
Defendant Nos.2 to 6 and Defendant No.1 was the wife of Munilal
Chouhan. The learned Trial Court ultimately held that the plaintiff was
asserting that his father paid the consideration amount and the father
of the plaintiff is dead and that the element of Sub-section 2 of Section
3 of the Benami Transactions (Prohibition) Act, 1988 has not been
proved by the plaintiff. It was specific case of the Defendant No.1 that
she had purchased the suit property from her Stridhan and she had
made the construction over the suit property with the help of other
sons and ultimately transferred the property to Defendant No. 2 by a
registered sale deed.
14. The learned Trial Court also recorded that the suit property was
purchased in 1991 in the name of Defendant No.1 and the recital of
the deed revealed that the vendor received Rs.40,000 from the vendee.
The learned trial court also took into consideration that under the
provisions of the Indian Registration Act, recital of the sale deed may
be taken in evidence. The learned Court ultimately decided the issue
against the plaintiff and in favour of the contesting defendants and
also recorded that the suit was hit by Section 3 of the the Benami
Transactions (Prohibition) Act, 1988.
15. The learned 1st appellate court formulated the following points
for consideration:
"(i) Whether the sale deed is in the name of Moteshwari Devi was self
acquired property of defendant no. 1.
(ii) Whether defendant no. 1 Moteshwari Devi has valid right to
transfer the property in the name of defendant no. 2 and 4.
(iii) Whether the suit is barred by Benami Transaction (Prohibition)
Act, 1988.
(iv) Whether defendant no. 2 is entitled to relief claim as per para-19
of the written-statement of counter claim."
16. The learned Appellate Court also considered the materials on
record and held that the plaintiff failed to prove the purchase in the
name of Defendant No.1 as benami and consequently the title of the
suit property automatically passed to Defendant Nos. 2 and 4 by virtue
of the sale deed dated 24.10.2010. The learned appellate court
considered the materials and ultimately dismissed the appeal.
17. The learned 1st appellate court recorded that in order to succeed,
the plaintiff had to prove through cogent and reliable evidence that (1)
the entire consideration amount of the registered sale deed dated
31.10.1991 was paid by deceased Munilal Chouhan and (2) the said
purchase was not for the benefit of his wife (Defendant No.1). The
learned appellate court also recorded that from perusal of the recital of
the sale deed dated 31.10.1991, the consideration amount of
Rs.40,000/- by way of demand draft was given by the buyer to the
seller and the plaintiff failed to prove that the recital was untrue and
that entire consideration amount of sale was paid by deceased Munilal
Chouhan.
18. The learned Appellate Court further discussed the materials and
recorded its findings in the following terms:
"From the discussion aforementioned, it is clear that in order to
succeed for the plaintiff, he has to prove through cogent and reliable
evidence that (1) the entire consideration amount of the registered sale
deed dated 31.10.1991 (Exhibit-G) was paid by the deceased Munni
Lal Chauhan (2) that the said purchase was not for the benefit of his
wife (defendant no. 1 - Moteshwari Devi).
Plaintiff has deposed at para-101 of his deposition that he has no
objection regarding deed no 11171 and serial no. 11828. Further
deposed at para-102 of his deposition that the title accrued by virtue of
the said sale deed is correct. Further from perusal of recital of sale
deed dated 31.10.1991 (Exhibit-G) and the beginning of page no. 2 the
consideration amount of Rs. 40,000/- by way of demand draft being
Draft No. 328769-00200 dated 30.10.1991 which was given by the
buyer to the seller.
The appellant/plaintiff failed to prove that the recital of the Exhibit-G
(sale deed dated 31.10.1991) are untrue and the entire consideration
amount of the sale was paid by the deceased Munni Lal Chauhan."
19. The learned Appellate Court, after discussing the materials,
particularly the evidence of the plaintiff recorded as under:
"On the point of purchase done in the name of defendant no. 1
Moteshwari Devi by her husband for the benefit of his wife can be
inferred from the testimony of the plaintiff and the witness who
deposed in support of plaintiff case. PW 1 at para-21 of his deposition
has stated that he was not present at Ranchi when the registered deed
was executed in favour of defendant no. 1. He further deposed at para-
22 that he was at Banglore for training at the time of execution of the
deed. He further deposed at para-23 that he went for training two
months prior to execution of the deed and came after four months to
Ranchi after execution of the deed. PW 2 at para-29 and 31, PW 3 at
para-31 and PW 4 at para-35, witness Santosh Ram at para-35,
witness Hareram Chauhan at para-61 of their depositions have
categorically deposed that either they were not present at Ranchi on
the day of execution of the sale deed or they were ignorant about the
purchase which clearly indicates that the plaintiff was not having
personal knowledge about the sale deed and payment of consideration
amount. Therefore the plaintiff has failed to prove the fact that the
consideration amount of the sale deed dated 31.10.1991 was paid by
the deceased father of the plaintiff/appellant. Further plaintiff has not
examined the vendor or any family members of the vendor who could
be the best witness to prove the contention of consideration money
being paid by the father of the appellant. Moreover. as the father of
the appellant/plaintiff is dead and as per the testimony of the plaintiff
and other witnesses in support of plaintiff no one was present at the
time of execution of the sale deed, so it cannot be believed that the
consideration amount for the execution of sale deed dated 31.10.1991
(Exhibit-G) was paid by the father of the appellant/plaintiff. Further
no where in the plaint that the plaintiff has asserted that the suit
property had not been purchased for the benefit of defendant no. 1."
20. The learned appellate court concluded in paragraph 17 that the
appellant/plaintiff failed to prove that the suit property was benami
and the consideration amount was paid by deceased father of the
appellant and held that defendant no. 1 was the exclusive owner of the
suit property.
21. This Court further finds that although the plaintiff claimed that
he had contributed some money in the construction of the building
over the suit property, but there was no specific pleading in
connection with the contribution made by the plaintiff in the
construction of the suit property.
22. In Vinod Kumar Dhall v. Dharampal Dhall, (2018) 16 SCC
645 : (2019) 1 SCC (Civ) 650, at page 650 reliance was placed on an
earlier judgement passed in in Surendra Kumar v. Phoolchand
(1996) 2 SCC 498 in which it was laid down that there is no
presumption that a family, because it is joint, possessed the joint
property and therefore the person asserting the property to be joint had
to establish that the family was possessed of some property with the
income of which the property could have been acquired. It has been
held that where it is established or admitted that the family which
possessed joint property which from its nature and relative value may
have formed sufficient nucleus from which the property in question
may have been acquired, the presumption arises that it was the joint
property and the burden shifts to the party alleging self-acquisition to
establish affirmatively that the property was acquired without the aid
of the joint family. When the property was purchased by Manager of
the joint family in the name of the appellant who was then minor in
the absence of material to establish that consideration money was paid
out of separate funds, it was opined that the property was rightly held
to be the joint property by the courts below. Another judgement was
relied in the said case , namely, Union of India v. Moksh Builders
and Financiers Ltd.: (1977) 1 SCC 60 wherein the Hon'ble Supreme
court observed that where it is asserted that an assignment in the name
of one person is in reality for the benefit of another, the real test is the
source where the consideration came as also to find out who has been
in the enjoyment of the benefits of the transaction. The case must be
dealt upon the reasonable probabilities and legal inferences arising
from proved or admitted facts. The burden of proof is not static and
may shift during the course of the evidence. It was held that it is
equally well settled that, although the onus of establishing that a
transaction is "benami" is on the plaintiff, it would be necessary to
weigh the evidence and to decide whether, even if it were assumed
that there was no conclusive evidence to establish or rebut the
"benami" allegation, what would, on a careful assessment of the
evidence, be a reasonable probability and a legal inference from
relevant and admissible evidence.
23. This Court finds that the plaintiff had miserably failed to prove
his case before both the courts that the property was the benami
property purchased by his father in the name of his mother. So far as
the counter-claim is concerned, it was declared that it was the
exclusive property of the Defendant No. 1. The learned Appellate
Court rightly recorded that the title of the suit property automatically
passed jointly to Defendant Nos. 2 and 4 by virtue of the sale deed
dated 24.10.2010 executed by Defendant No.1 even it was executed
during the pendency of the suit.
24. This Court finds that there are concurrent findings recorded by
both the courts and no perversity, as such, has been pointed out by the
learned counsel for the appellant in the matter of appreciation of
evidence. No substantial question of law arises for consideration in
this case.
25. This Court finds that the said judgement does not help the
appellant of this case as the learned courts have considered the
materials on record and held that the property was purchased from the
own property of the defendant no.1 who paid the consideration money
and had exercised all rights over the property. There is no scope for
reappreciation of materials and coming to a different finding as no
perversity as such has been pointed out by the learned counsel for the
appellants in the matter of appreciation of the materials on record.
26. This Court is of the considered view that, no question of law,
much less any substantial question of law arises for consideration in
this case.
27. Accordingly, this second appeal is hereby dismissed.
28. Pending interlocutory application, if any, is dismissed as not
pressed.
29. Let a copy of this judgment be communicated to the court
concerned through FAX/email.
(Anubha Rawat Choudhary, J.)
Saurav/
