Jharkhand High Court
Deo Nandan Gope vs Suraj Narayan Gope (Dead And ... on 25 November, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:35111
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
... ... Defendants/Respondents/Appellants
Versus
1. Suraj Narayan Gope (dead and substituted vide order dated
11/07/24)
1(a) Sakuntala Devi W/o Late Suraj Narayan Gope
1(b) Rinku Yadav, Son of Late Suraj Narayan Gope,
1(c) Mithun Yadav, Son of Late Suraj Narayan Gope,
All are residents of Bujurga, P.O. & P.S. Patratu, District-
Ranchi
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, S/o Late Bhola Gope, Resident of
Village- Bujurg Zamira, P.O. & P.S.- Patratu, District -
Ramgarh.
7. Binu Gope @ Bindeshwari Gope, S/o Late Bhola Gope (dead
and substituted vide order dated 23/09/24)
7 (a) Antri Devi, W/o Late Binu Gope
7 (b) Prem Gope, S/o Late Binu Gope
7 (c) Sarita Devi, W/o Uday Gope, D/o Late Binu Gope alias
Bindeshwari Gope Resident of village Bailgadda, P.O.
Dunduwa, P.S. Simariya, Dist. Chatra
7 (d) Chhotelal Gope, Son of Binu Gope @ Bindeshwari Gope
7 (e) Vikash Gope, Son of Late Binu Gope @ Bindeshwari Gope
7 (f) Sunita Kumari, Daughter of Late Binu Gope @ Bindeshwari
Gope
All are residents of Bujurg Jamira, P.O. Barkakana, P.S. -
Patratu, District Ramgarh.
... Plaintiffs/Cross Objectors/Respondents
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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 of 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- Bujurgaj- Zamira, P.S. &
P.O. Patratu, District - Hazaribagh, at present - Ramgarh.
... ... Defendants/Appellants/Appellants
Versus
1. Suraj Narayan Gope (dead and substituted vide order dated
11.07.2024)
1(a) Sakuntala Devi W/o Late Suraj Narayan Gope
1(b) Rinku Yadav, Son of Late Suraj Narayan Gope,
1(c) Mithun Yadav, Son of Late Suraj Narayan Gope,
All are residents of Bujurga, P.O. & P.S. Patratu, District-
Ranchi
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.
2
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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, S/o Late Bhola Gope, Resident of
Village- Bujurg Zamira, P.O. & P.S.- Patratu, District -
Hazaribagh at present - Ramgarh.
7. Binu Gope @ Bindeshwari Gope (dead and substituted vide
order dated 23/09/24)
7 (a) Antri Devi, W/o Late Binu Gope alias Bindeshwari Gope
7 (b) Prem Gope, S/o Late Binu Gope alias Bindeshwari Gope
7 (c) Sarita Devi, W/o Uday Gope, D/o Late Binu Gope alias
Bindeshwari Gope
7 (d) Chhotelal Gope, S/o Late Binu Gope @ Bindeshwari Gope
7 (e) Vikash Gope, S/o Late Binu Gope @ Bindeshwari Gope
7 (f) Sunita Kumari, Daughter of Late Binu Gope @ Bindeshwari
Gope
Respondent Nos. 7 (a), (b), (d), (e) & (f) are residents of Bujurg
Jamira, P.O. Barkakana, P.S. - Patratu, District Ramgarh,
Jharkhand, Pin 829102 and
Respondent no. 7(c) is 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, 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 of Village - Pusho,
P.O. & P.S. Sisai, District- Gumla.
12. Ram Sahay Gope
3
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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 Appellants : Mr. Rahul Kumar Gupta, Advocate
: Mr. Rakesh Kumar Singh, Advocate
: Ms. Swati Singh, Advocate
: Mr. Surya Prakash, Advocate
For contesting Respondents : Mr. S.K. Sharma, Advocate
: Mr. Sumit Kumar, Advocate
---
Reserved on 20.06.2025 Pronounced on 25.11.2025
1. S.A. No. 393 of 2016 is relating to schedule B property of the
plaint and S.A. No. 402 of 2016 is relating to schedule C property of
the plaint. These appeals arise from the judgment dated 07.08.2014
(decree signed on 20.08.2014) passed by learned Civil Judge, Junior
Division, (Munsif), Hazaribag in Partition Suit No. 97 of 2005.
2. S.A. No. 393 of 2016 has been filed against the judgment dated
06.06.2016 (decree signed on 18.06.2016) passed in Title Appeal No.
45 of 2014 by the Court of learned District Judge-I, Ramgarh whereby
the learned 1st appellate court has dismissed the appeal filed by the
defendants. The learned trial court had partly decreed the suit for
partition only with respect to schedule B property and the learned 1 st
appellate court, upon appeal filed by the defendants with respect to
Schedule B property, has dismissed the appeal.
S.A. No. 402 of 2016 has also been filed by the defendants against that
part of the judgment dated 06.06.2016 in Title Appeal No. 45 of 2014
whereby the learned 1st appellate court has been pleased to allow the
cross-appeal filed by the plaintiffs with respect to Schedule C
property.
3. The schedule B property is relating to certain plots in Khata no.
26 and 28 in village Bujurg Zamira, P.S. Patratu District Hazaribagh
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(now Ramgarh). The schedule C property is in relation with certain
plots in khata nos. 25, 27, 113 and 114 of the same village.
4. Vide order dated 30.09.2021 passed in both the cases, following
substantial question of law was framed: -
(i) Whether the first appellate court has committed
illegality in reversing the findings of the trial court
in respect of issue no. 9 without discussing and
giving reasons as to why first appellate court is
reversing the aforesaid finding?
5. The issue no. IX was relating to schedule C property.
6. Vide order dated 31.03.2022 passed in S.A No. 393 of 2016 the
following substantial question of law has been framed: -
(ii) Whether the courts below have misconstrued
Section 18 of the Hindu Succession Act while
dealing with Law of Succession regarding
inheritance of the property of Gurdu Gope?
7. The Partition Suit was filed by three plaintiffs, namely, Rama
Gope @ Rima Gope, Lato Gope @ Latlaha Gope and Binu Gope @
Bindeshwar Gope, all sons of Late Bhola Gope for the following
reliefs:
(a) That after adjudication, a decree may be passed that the
lands of schedule 'C' of the parties irrespective of Khatian
entries in the individual names of co-parceners;
(b) That thereafter, a preliminary decree for the half share
of the plaintiffs with respect to the lands of the suit khatas
as detailed in Schedule 'B' & 'C' below be passed and a
separate Takhta be carved out with respect to the plaintiffs'
half share by appointment of a Pleader Commissioner and
the plaintiffs are put in khas possession of the same by
evicting the defendants or any person claiming through
them through the process of the court;
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(c) That a decree for cost of the suit be passed including
the pendency of the suit and further till possession of the
plaintiffs' Takhta is not delivered;
(d) That any other relief or reliefs to which the plaintiffs
will be entitled to claim.
8. Thus, the relief as prayed for, reveals that the plaintiffs sought a
declaration that schedule-C property was a coparcenary property.
They further prayed for a preliminary decree for half share of the
plaintiffs with respect to schedule-B and C property and also sought
Khas possession of the same by evicting the defendants or any person
claiming under the defendants.
9. Arguments of the appellants (defendants) as reordered in the
earlier orders passed by this court are as under: -
a) With respect to the substantial question of law regarding
appreciation of provision of Section 18 of the Hindu
Succession Act,1956 (Hereinafter referred to as the Act of
1956), the learned counsel for the appellants has submitted
that it is not in dispute that the property in Schedule-B was
acquired by Gudru Gope and he had two wives; first wife had
three children including Girdhari Gope, the remaining two
died issueless. So far as second wife is concerned, she had
only one child namely Bhola Gope.
b) Bhola Gope, son of second wife, had four sons and one of the
sons died issueless. The remaining three children of Bhola
Gope were the plaintiffs. The legal heirs and successor of
Girdhari Gope were the defendants. The court has directed
partition of the suit property in the ratio of ½ and ½ share
between the two branches, Girdhari Gope and Bhola Gope.
c) The learned counsel has submitted that upon death of Gudru
Gope, the property devolved equally amongst four sons of
Gudru Gope and upon death of two full brothers of Girdhari
Gope, the share of the deceased brothers would devolve upon
the branch of Girdhari Gope and consequently the property
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ought to have been divided in the ratio of ¾ : ¼ with respect
to the branch of Girdhari Gope and Bhola Gope but the
learned court has wrongly divided the share ½ and ½
between two branches.
d) While referring to Section 18 of the aforesaid Act of 1956,
the learned counsel has submitted that heirs related to an
intestate by full blood are to be preferred as compared to the
heirs related by half blood. The learned counsel has also
referred to the book Mulla on Hindu Law 21st Edition at
page no. 149 to submit that the law that whole blood would
be preferred to half blood was already in existence prior to
coming into force of the Act of 1956 and such provision
under Section 18 is basically codifying the existing law with
respect to this aspect of the matter and he submits that the
impugned judgment dividing ½ and ½ share between the
branch of Girdhari Gope and Bhola Gope is not in
accordance with law. He submits that the division of share
ought to have been in the ratio of 3/4th and 1/4th.
e) The learned counsel has also referred to page 133 of the same
book which deals with propinquity being the governing factor
under Mitakshara law and he submits that it has been stated
therein that right to inheritance arises from propinquity that is
'proximity of relationship'. He submits that proximity of
relationship with respect to full brother would be closer as
compared to half-blood brother and therefore upon death of
full brothers their share would have devolved upon full blood
brother and not upon half-blood brother.
f) The learned counsel submits that once the unity of title and
possession was found in connection with Schedule-B
property, the properties ought to have devolved in accordance
with the Act of 1956 and while giving the findings the
learned Trial Court has completely ignored Section 18 of the
Act of 1956.
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g) The learned counsel has referred to the issues framed by the
learned Trial Court and has submitted that share with respect
to the schedule-B and Schedule-C property comes under
issue no. X.
h) The learned counsel further submitted that it was held that
there was unity of title and possession with respect to
schedule-B property. While considering issue no. X, the
learned court has recorded that the defendants have claimed
that they had 2/3rd share and such claim was on the basis of
compromise decree but such plea was ultimately rejected and
by referring to certain pleading in the earlier proceedings
wherein it was asserted that Girdhari Gope and Bhola Gope
had ½ and ½ share in the land, the share was accepted to be
½ and ½ . The learned counsel has submitted that on the one
hand the claim of 2/3rd share of Girdhari Gope and 1/3rd share
of Bhola Gope on the basis of compromise was rejected and
on the other hand, the pleadings in the earlier partition suit
was taken into consideration to give ½ and ½ share.
i) While referring to the judgment passed by the learned 1 st
Appellate Court, the learned counsel has referred to
paragraph 11 which records that the whole argument of both
the parties hinges upon findings with respect to issue nos.
VIII, IX and X. He submits that arguments of the defendants
have been recorded in paragraph 12 of the judgment wherein
the argument with respect to Section 18 of the Act of 1956
has been recorded in paragraph 12(4), 12(5) and12(6) which
are as follows:-
"(4) That in the suit for partition, the Court
shall have to determine the share of parties and
according to Section 18 of the Hindu Succession
Act, heirs related to an intestate by full blood shall
be preferred to heirs related by half blood.
(5) That as per Hindu Succession Act and
Mulla's Hindu Law, two persons are related to
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each other by full blood when they are descendants
from common ancestor by the same wife and by
half-blood when they are descendants from
common ancestor by two different wives.
(6) That Girdhari Gope being related by full
blood succeeded share of Bhodhu Gope and Mithu
Gope and he became owner of 3/4th share and
Bhola Gope became owner of 1/4th share."
j) The learned counsel further submitted that argument of the
plaintiffs has also been recorded in paragraph 13 of the
appellate court's judgment but no specific argument with
regard to Section 18 of the Act of 1956 has been mentioned.
The learned counsel has further referred to paragraph 22 of
the 1st Appellate Court's judgment by which the learned 1 st
Appellate Court has mentioned about the claim with regard to
share of full blood/half-blood but he submits that in the
findings from paragraph 23 to 28 there is no discussion about
the applicability of Section 18 of the Act of 1956. Paragraphs
21 to 24 are quoted as under: -
"21. From going through the documentary oral
evidence, I find that there is no proof of any partition
between the Girdhari Gope and Bhola Gope.
22. Now the question arises whether Girdhari Gope was
entitled for 3/4 share of the properties left by his father
as per the doctrine of full blood and half blood, and
Section 4 of the Hindu Succession Act is overriding
effect on the Section 84 of the C.N.T Act and the
Principal of Estoppel or admission as mentioned in
para-3 of the Ext. 5 is against the provision of statute.
23. The date, month or year of the death of Gudru Gope,
Bodhu Gope and Mithu Gope as well as the wives of
Gudru Gope has not been stated by any witness neither
any document or substantive oral evidence has been
brought. I am in agreement with the submission of the
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learned counsel of the respondent that share of a
coparceners in the co-parcenary properties increases or
decreases as per the variation in the family members.
The counsel of appellant-defendant has stated that it is
mentioned in the pleading as well as in the evidence that
Gudru Gope in his lifetime divided his property in three
equal share and one Jethan share was allotted to
Girdhari Gope and 2/3rd share Girdhari Gope and his
brothers born from the first wife and 1/3 to Bhola Gope
24. There is no any documentary and oral evidence to
prove para-13 of the Written Statement. Although this
fact has been stated by DW-1 in his affidavit-in-chief.
DW-4 Mansa Gope is a elderly man of village
Bujurgjamira and he has stated that only two persons
were allotted Jethans in his village namely Biglara and
Namrata. He did not take name of Girdhari Gope and
the second thing to be considered that if the Gudru
Gope divided his property in three equal shares and one
share was given to Girdhari Gope as Jethans and 2/3 of
Girdhari Gope and his brother and one share to Bhola
Gope, it is arithmetically wrong If whole property is
divided into three equal share and one share was given
to Girdhari Gope as jethans, then only 1/3rd share can
be given to Girdhari Gope and his brother. Although,
there is no evidence to prove the same. The defendant-
appellant has relied upon the final Decree of Partition
Suit No. 25/1938. However, from going through the
documentary evidence, I find that the Court of Munsif
has held that the suit was not compromised and not filed
by Bhola Gope and the prayer for drawing final decree
with respect to the partition Suit No. 25/1938 has not
been allowed even by the Hon'ble Court. Hence, the
Partition Suit No. 25/1938 could not be a basis of
partition and the share of parties cannot be decided;
since final decree has not been drawn neither
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'dakhaldahani' has been effected. The learned lawyer of
the appellant submitted that Ext. E series, the most vital
documents of previous partition and these documents
has been overlooked by the lower Court to consider the
pleading of partition between the parties. I compared
the lands sold by parties by Ext. E series are in
consonance of their kabjabari for the Khatiyan vide Ext.
1 series. I find that the heirs of Girdhari Gope and
Bhola Gope sold of only those lands pertaining to Khata
no. 26, 28 and 113 which are mentioned as kabzawari
against their name in the Khatiyan. The judgment
reported in 1995 got into JLJR 1192 and vide para 22
of the judgment the effect of kabjabari(kabjadari) has
been mentioned. I would like to mention only one line of
the judgment as far as kabjadari is concerned
"Kabjadari does not indicate partition through metes
and bounds" In the case in hand, the partition cannot
presumed since separate kabjabari has been mentioned
in the Khatiyan as well as there has been interse
transaction between the parties about the suit land. The
learned lawyer of the appellant further raised matter of
doctrine of merger. The principal of merger does not
apply in this case since the judgment and order of the
second appeal has not been brought on the record.
Further, I find that Title Suit No. 148/1970 has been
dismissed on merit and there is no any modified or
reverse judgment of Appellate Court. Therefore, the
principal of merger is not going to help the appellant
anymore.
Therefore, I find that the lands pertaining to Khata no.
26 and 28 which are included in Schedule B of the
plaint has not been partitioned by metes and bounds.
Therefore, Girdhari Gope and Bhola Gope are entitled
equal half share to the lands of Schedule B' property
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Therefore, the finding of the lower Court as far as
Schedule 'B' property is concerned stands upheld."
k) The learned counsel further submitted that once the
genealogy is not in dispute the nature of relationship is also
not in dispute. The date, month or year of death of Gudru
Gope, Bhondu Gope and Mithu Gope as well as wives of
Gudru Gope has not been brought on record. Upon applying
Section 18 of the Act of 1956, the property ought to have
devolved in the ratio of 3/4: 1/4.
l) The learned counsel has relied upon a full Bench judgment of
Hon'ble Bombay High Court reported in 1983 SCC Online
Bombay 304 (Waman Govind Shindore v. Gopal Baburao
Chakradeo) and has referred to paragraph 13 thereof to
submit that it has been clearly held that plain reading of
provision of Section 18 of the Act of 1956 appears to be clear
that it is nothing but a substantial reproduction of the
prevalent rule of Hindu Law under which the relations of the
whole blood were preferred to those of half-blood if their
degree of relationship to the deceased was the same. The
learned counsel has submitted that the aforesaid finding of
Hon'ble Bombay High Court finds support from the aforesaid
discussions made in Mulla Hindu Law. The learned counsel
has also referred to the judgment passed by the Hon'ble
Calcutta High Court reported in 1982 SCC Online Cal 218
(Ujjal Kumar Singh and others Vs. Lakshman Chandra
Singh and others).
m) The learned counsel has submitted that Gudru Gope died
leaving behind his four sons and upon his death, the property
equally devolved upon each one of them and upon death of
two of them who were full brothers of Girdhari Gope, their
share would have gone to the share of Girdhari Gope and the
fourth son through the second wife could not claim any
further property.
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n) 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.
o) 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 aforesaid two sons of
Gudru Gope 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.
p) 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.
q) 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 and not as coparcenary property as the four brothers
did not constitute a coparcenary qua the self-acquired
property of Gudru Gope. He has also submitted that had the
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brothers had 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 on Hindu Law 21st Edition.
r) The learned counsel for the appellants has submitted that
upon 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 Act of 1956.
s) The finding of the learned 1st 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.
10. Arguments of the contesting respondents (plaintiffs) are as
under: -
i. The learned counsel for the respondents submits that the
perusal of the plaint reveals that the 2nd and 3rd 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 2nd and 3rd generation of
Gudru Gope.
ii. The suit seeking partition having been filed by the 3rd
generation, the suit property in any way was coparcenary
property in their hand and therefore the property would have
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devolved through survivorship; since two brothers had expired
therefore the property devolved half and half between Girdhari
Gope and Bhola Gope.
iii. Section 18 of the Act of 1956 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. 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.).
iv. In order to explain the concept of coparcenary, the learned
counsel has relied upon the judgment passed by the Hon'ble
Supreme Court reported in (2016) 4 SCC 68 (Uttam versus
Saubhag Singh and Others).
v. 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.
vi. 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 grandson 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.
vii. The learned counsel for the respondents has also referred to
Exhibit-4 to submit that the Award was also prepared upon
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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 1st Appellate Court.
viii. The learned counsel for the respondents has referred to 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 of the said judgment to submit that coparcenary
continues till there is actual partition. Therefore, the learned
court has rightly held that property was coparcenary property.
11. Rejoinder arguments of the appellants.
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 (three from 1st wife and one from 2nd wife) and upon
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death of two full brothers of Girdhari Gope, the two sons of 1 st wife,
the share of two deceased full brothers would devolve only upon
Girdhari Gope being related by full blood and accordingly the share of
Girdhari Gope would be 3/4th.. The remaining 1/4th share will go to the
only son of 2nd wife , namely, Bhola Gope. 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. 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 3rd generation is born. 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.
12. Arguments of the appellants (defendants)
The learned counsel for the appellants submits that this 2nd appeal
relates to Schedule-C property. He has referred to issue no. (IX)
decided by the learned Trial Court 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 were recorded in the name of Girdhari Gope
and Bhola Gope respectively and such entry in the record of rights
was never challenged. 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.
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13. He submits that such finding has been reversed by the learned
1st Appellate Court in the Cross Appeal and in the 1 st appellate court's
judgment there is no finding with respect to the nucleus to acquire the
property.
14. 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.
15. Arguments of the contesting respondents (plaintiffs) in
Second Appeal 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. Only in case of perversity, the findings
can be a subject matter of substantial question of law. Both the
learned courts found that Schedule-B and C property were
coparcenary property.
16. The learned counsel for the respondents has referred to the
judgment passed by the Hon'ble Supreme Court reported in (2003) 10
SCC 310 (Supra) which has also been 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
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learned counsel submits that there is finding of the learned courts that
there is nucleus in the family.
17. 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
[Jupudi Venkata Vijaya Bhaskar -Vs- Jupudi Kesava Rao (died)],
(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.
Rejoinder arguments of the appellants in S.A No. 402 of 2016
18. 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.
The plaint
19. Case of the plaintiffs as per the plaint is as under: -
I. It was the case of the plaintiffs that upon death of the common
ancestor, Gudru Gope, his sons jointly inherited the land in Khata
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No. 7 which became their ancestral joint family property in the
hand of Girdhari Gope and his brothers (from 1 st wife) and Bhola
Gope (from 2nd wife) - each were having equal share. It was their
case that they were governed by Mitakshara School of Hindu
Law and the joint family property was never partitioned by metes
and bounds either between the sons of Gudru Gope or amongst
Girdhari Gope and sons of Bhola Gope and it was asserted that
they were jointly cultivating the property as per convenience.
After death of Bhondu Gope and Mithu Gope, Girdhari Gope and
Bhola Gope both became owners of 8 annas share each (50%
each). It was claimed by the plaintiffs (descendants through the
2nd wife) that the defendants (descendants through the 1st wife)
would be entitled only up to the extent of 50% of the property of
Gudru Gope.
II. Their further case was that after the last cadastral survey both
Girdhari Gope and Bhola Gope jointly and out of joint family
fund, i.e., income from land of old Khata No. 7 acquired some
more land by settlement from the then ex-landlord in their own
names, which having acquired out of the lands of coparcenary
property, became part of the joint family property. Later on, there
was a minor revisional survey in the village during the lifetime of
Girdhari Gope and Bhola Gope and Girdhari Gope being the
Karta of the joint family was looking after the survey proceedings
which started in the year 1962-63. The record of rights was
finally published in the year 1967 in which new Khata No. 26 and
28 was carved out from the old ancestral Khata No. 7 and the
same was jointly recorded in the name of Girdhari Gope (one
share) and three sons of Bhola Gope except Basudeo Gope [died
prior to minor survey] having one share. In the column 2 of new
Khata Nos. 26 and 28, the share of Girdhari Gope was entered as
one share and the share of the plaintiffs as one share, but
Kabajwari of the plots as per the then possession was noted in the
last or the remark column of the Khatiyans. The lands which
were jointly acquired by Girdhari Gope and Bhola Gope from the
joint family income was incorrectly recorded in the name of
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Girdhari Gope separately against new Khata Nos. 25 and 27 and
for lesser areas, it was incorrectly and separately recorded in the
name of Bhola Gope against new Khata Nos. 113 and 114,
though both were joint owners having equal share.
III. It was further alleged that Girdhari Gope was looking after the
revisional survey being the Karta of the family and personally he
had no objection to the entries made pursuant to the revisional
survey nor did he press before the authorities the alleged
compromise decree passed in Partition Suit No. 25 of 1938 nor
did he file any objection and thereby allowed the Khatiyan entries
to become conclusive, final and binding upon the parties. The
alleged compromise decree was either non-existent or not acted
upon or given effect to.
IV. The ancestral land which was recorded under new Khata No. 26
and 28 were described in schedule-B and the land which was
subsequently acquired from joint family fund was recorded in
Khata Nos. 25, 27, 113 and 114 and is described in schedule-C. It
was asserted that the land of schedule-C was all coparcenary
property being acquired from joint family funds and therefore, the
Khatiyan entries were wrong and the plaintiffs had half share
with respect to the schedule- C property.
V. It was their further case that the parties were still joint and there
has never been any partition by metes and bounds amongst them
or amongst their ancestors and the rents were being paid jointly
except with respect to the Khata Nos. 27, 28 and 114 which were
'Belagan' land as entered in the Khatiyan of revisional survey of
1967; meaning thereby, no rent was payable with respect to those
properties.
VI. Further case of the plaintiffs was that Bodhan Gope, S/o Girdhari
Gope, prior to his death, had instituted Title Suit No. 148 of 1970
and the present plaintiffs were defendant nos. 1 to 3 in the said
suit whereas, three brothers of Bodhan Gope were defendant nos.
4 to 6 in the said suit. In Title Suit No. 148 of 1970, Bodhan
Gope sought a declaration of his title along with his three brothers
over land comprising of certain plots under Khata No. 26 and 28.
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The claim was based on the alleged compromise decree of
Partition Suit No. 25 of 1938 in which compromise petition was
said to have been filed on 08.02.1939 by Bhola Gope (father of
the plaintiffs). Further, a declaration was also sought in the said
suit to declare that the survey showing the name of the present
plaintiffs who were defendant nos. 1 to 3 in the Title Suit No. 148
of 1970 in the purcha prepared and published with respect to the
suit land of that suit, was wrong.
VII. It was also asserted that the plaintiffs of the previous suit
admitted that the Khata Nos. 26 and 28 in the survey of 1967 was
carved out of old khata no. 7 recorded in the name of common
ancestor Gudru Gope and they also admitted that Girdhari Gope
and Bhola Gope, each had equal half share in the lands of Khata
No. 7 and also admitted equal share of the plaintiffs of the present
suit on one side and the heirs of Girdhari Gope on the other side.
VIII. The plaintiffs pleaded that the Title Suit No. 148 of 1970 was
based on the compromise petition of the earlier Partition Suit No.
25 of 1938 in which compromise petition was alleged to have
been filed by Bhola Gope against Girdhari Gope and other co-
sharers whereby the suit lands, besides others, total 22 to 23 acres
were allotted to Girdhari Gope and only 7 acres was allotted to
Bhola Gope.
IX. It was asserted that the defendant nos. 1 to 3 of Title Suit No. 148
of 1970, who are the plaintiffs in the present suit, contested the
said suit by stating that Bhola Gope never filed the alleged
Partition Suit No. 25 of 1938 nor there was any compromise
decree on the basis of alleged compromise petition and that the
suit lands of Title Suit No. 148 of 1970, besides others, were
never allotted to Girdhari Gope. It was asserted that the said
partition suit no. 25 of 1938 and its alleged compromise petition
and the decree were manipulated, concocted, fabricated and not
binding upon the present plaintiffs.
X. In the Title Suit No. 148 of 1970, it was held, inter alia, that
compromise in the earlier suit being Partition Suit No. 25 of 1938
was not arrived in the suit and the same was not acted upon and
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that the entry in the survey records-of-rights with respect to the
suit land was not wrong or incorrect and accordingly, the suit was
dismissed vide judgment dated 09.12.1971.
XI. Against the judgment passed in Title Suit No. 148 of 1970, the
plaintiff of the said case namely Bodhan Gope filed F.A. No. 8 of
1972 which too was dismissed on 08.01.1975 by confirming the
judgment of the trial court and holding that the alleged
compromise was not signed by Bhola on behalf of his minor sons.
XII. Thereafter, 2nd appeal was filed before the High Court, but the
order and direction of the High Court was not complied nor any
steps were taken on behalf of the said appellants and the appeal
before the 1st appellate court was dismissed by an order dated
21.12.1982.
XIII. It was asserted that the final decision of Title Suit No. 148 of
1970 dated 21.12.1982 proved that there was never any partition
of the land of the suit Khatas which were coparcenary properties
and the judgment in Title Suit No. 148 of 1970 became final,
conclusive and binding upon the parties.
XIV. It was their further case that defendant nos. 4 and 5 filed Title
Suit No. 59 of 2004 on 03.08.2004 falsely stating that recorded
tenants in survey of 1967 never constituted a joint family and
Kabzawadi entries in the suit khata no. 26 were according to their
individual rights and there was no unity of possession. It was also
asserted in Title Suit No. 59 of 2004 that Doman Gope [died
issueless] made a gift of his share to the said plaintiffs i.e.,
plaintiffs of Title Suit No. 59 of 2004 and delivered possession.
The gift was alleged to be illegal and invalid by the present
plaintiffs.
XV. Further, the plaintiffs of Title Suit No. 59 of 2004 alleged to have
sold some land [out of schedule -B of the plaint of this suit] but
the alleged purchasers did not acquire any right except to claim
partition from the share of the plaintiffs. The plaintiffs of the
present suit contested the said suit being Title Suit No. 59 of 2004
and ultimately, an order dated 10.02.2005 was passed holding
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that the alleged compromise petition was not acceptable and the
objection of the present plaintiffs was allowed.
XVI. It was also asserted that in one Land Acquisition case certain
properties in Khata No. 26 were acquired for military purpose for
which compensation was awarded and paid. In the said case, the
half of the amount of total compensation was paid to the
plaintiffs. For the purpose of enhancement of the awarded
amount, the case was pending in appeal before the High Court
and therefore, the properties which were acquired did not form a
part of schedule-B property seeking partition.
XVII. It was asserted that in view of aforesaid series of litigations and
various tactics of defendants and their ancestors at various stages
of litigation to grab more land, the plaintiffs were advised to file
the suit seeking partition of ½ share which was refused by the
defendants on 05.08.2005.
The written statement
20. Case of the defendants as per the written statement is as under: -
A. The genealogy appended at Schedule-A of the Plaint is neither
correct nor complete. A dispute was raised with respect to the
name of the family members and it was stated that Bhola Gope
had died first among the brothers leaving behind three sons,
Plaintiff no.1, 2 and 3. Basudeo, son of Bhola Gope had
predeceased issueless. Bhondu Gope and Mithu Gope [both
full brothers of Girdhari Gope] also died issueless one after
another.
B. The common ancestor, Gudru Gope, during his lifetime,
divided the properties in equal three shares. One Jethans share
to Girdhari Gope was allotted and 2/3rd share to three brothers
i.e., Girdhari Gope, Bhondu Gope, and Mithu Gope - sons
through the 1st wife and 1/3rd share to Bhola Gope son through
the 2nd wife was allotted and they continued in possession
accordingly. Three brothers Girdhari, Bhondu and Mithu lived
in reunion while Bhola lived in Separation.
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C. After death of the common ancestor, Bhola created nuisance
and then Panches were called on Jyeth Sudi 14 Sambat 1975 to
resolve the dispute and they amicably resettled on the same
right as per partition held amongst them and prepared a
memorandum of the same in two copies -one each to two sets.
After death of Mithu Gope and Bhondu Gope, the Sole
surviving brother Girdhari succeeded them. It was admitted
that the shares of the two-brothers (died issueless) devolved
upon Girdhari Gope, but it was disputed that Girdhari became
sharer to the extent of Eight annas (50%) and Bhola became
sharer of Eight annas (50%).
D. It was denied that after death of Gudru Gope, the lands of
Khata no.7 were the joint family property in the hands of
Girdhari Gope and Bhola Gope each having equal ½ share. It
was stated that the joint family property was partitioned and
the partition held among them was later on merged into the
Decree of Partition Suit No. 25 of 1938.
E. It was denied that after last cadastral survey both Girdhari and
Bhola, out of the joint Income from Khata no.7, acquired some
more lands by settlement from the ex-landlord in their own
names which became part of joint family properties.
F. In the Partition Suit No. 25 of 1938 brought by Bhola Gope,
ancestor of the Plaintiffs, the lands allotted as per decree dated
25.02.1938 were in Khata No.7 in different plots having total
area of 7.31 acres as detailed in the written statement.
G. It was denied that Girdhari Gope was ever the Karta of the
joint family and was ever looking after the survey proceeding
which started in 1962-63 and finally published in 1967. It was
asserted that the original plaintiffs were instrumental in
managing wrong entry in the Revisional survey record. It has
been wrongly entered in the Revisional Khatian that Girahari
Gope had one share and one share to original plaintiffs who
had no concern with those lands of Khata no. 26 and 28.
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Taking advantage of the wrong entry the Plaintiffs tried to
obtain Jamabandi in their names.
H. The lands which were wrongly entered and transferred into
new Khata and plots in Revisional Survey were detailed in
para 19 of the written statement.
I. Bodhan Gope, son of Girdhari Gope, the Ancestor of the
defendants, lodged title suit no.148/1970 on 30/01/1970 and
amongst others, prayed for declaration that the recent survey
showing names in the Parcha and publication by survey
authorities with respect to the above-mentioned land were
wrong. The Title Appeal No. 8/72 / 18/74 on remand by the
High Court in S.A. No. 2/1975(R) is yet to be decided on merit
as per observation made by the High court. Present suit for this
reason too is not maintainable.
J. It is incorrect to say that Girdhari Gope, by looking after the
minor survey proceeding, got larger share incorrectly recorded
in his separate name under New Khata no.25 and 27 and for
lesser area in the names of the ancestor of the Plaintiffs under
new Khata no. 113 and 114. It was denied that both the
Plaintiffs and defendants are joint owner having equal share. It
is not correct to say that the compromise Decree of Partition
Suit No. 25 of 1938 has not been given effect.
K. It was denied that the lands of four Khatas i.e., Khata Nos. 25,
27, 113 and 114 (all under schedule C property) are
coparcenary property and that they have been acquired out of
joint family fund from schedule B property and accordingly
they denied that the Plaintiffs have ½ share in the lands of
schedule 'C' of the Plaint. As a matter of fact, the plaintiffs and
their ancestors have transferred the land, allotted to them
through Partition Suit No. 25 of 1938 according to their
Kabjawari allotment to different persons and to their wives and
lady members of the family and the other lands of Khata Nos.
113 to 114 were recorded in their name.
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L. It was denied that the parties are still joint. It was denied that
Girdhari Gope and Bhola Gope each had equal ½ share in the
lands of old Khata no.7.
21. Issues framed by the trial court :-
I. Is the suit is maintainable as framed?
II. Whether the plaintiffs have cause of action for the
suit?
III. Is the suit barred by res-judicata?
IV. Whether the suit is barred under the provisions of
Specific Relief Act?
V. Whether the suit has been properly valued and court
fee paid is sufficient?
VI. Whether the suit is barred by law of limitation and
adverse possession?
VII. Whether the suit is bad for non-joinder of necessary
parties?
VIII. Whether there is unity of title and possession between
the parties as to the suit property?
IX. Whether the Schedule 'C' properties of the plaint are
coparcenary of the plaintiffs and defendants?
X. Whether the plaintiffs are entitled to partition of half
share in Schedule 'B' and 'C' of the plaint?
XI. Whether the plaintiffs are entitled to a decree prayed
for?
XII. To what other reliefs if any the plaintiffs are entitled?
22. Oral and documentary evidences:-
Both the parties adduced oral as well as documentary evidences in support
of their respective cases. The plaintiffs examined altogether four
witnesses. Out of them, PW-1 was Lato Gope, PW-2 was Birja Gope,
PW-3 was Rato Gope and PW-4 was Prem Gope. The defendants have
examined altogether five witnesses. Out of them, DW-1 was Umesh
Gope, DW-2 was Ganesh Prasad Yadav, DW-3 was Indu Gope, DW-4
was Mansa Gope and DW-5 was Devanand Gope.
List of documents filed on behalf of plaintiffs:-
Ext. 1 series Certified copy of Records of Right of Cadastral Survey of
khata no. 25, 26, 27, 28, 113 and 114 of village Bujurga-
Zamira under Ramgarh thana, Dist. Hazaribag
Ext. 2 Certified copy of order dated 08.11.2011 passed by the
High court of Jharkhand in W.P(C) No. 5948 of 2008.
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Ext. 3 Endorsement of District Land Acquisition Officer,
Hazaribagh made on the petition filed by Rama Gope and
others before the court of District Land Acquisition
Officer, Hazaribagh in Case No. P-16/87-88.
Ext. 4 Certified copy of order dated 05.01.1989, 07.01.1989,
17.01.1989 and 23.01.1989 passed by District Land
Acquisition Officer, Hazaribagh in Case No. 16/87-88.
Ext. 4/A Certified copy of order dated 10.02.2005 passed by the
court of Munsif, Hazaribagh in Title Suit No. 59 of 2004.
Ext. 4/B Certified copy of order dated 05.02.2009 passed by the
court of Munsif, Hazaribagh in Title Suit No. 59 of 2004.
Ext. 4/C Certified copy of order dated 21.01.2008 passed by the
court of Munsif, Hazaribagh in Title Suit No. 25 of 1938.
Ext. 5 Certified copy of plaint of Title Suit No. 148 of 1970 filed
before the court of Munsif, Hazaribagh by Bodhan Gope
as plaintiff against Rima Gope and others as defendants.
List of Exhibits on behalf of Defendants:-
Ext. A series:- Government rent receipt issued in the name of Devanand
(Ext.A to A/3) Gope and Girdhari Gope in respect of lands of khata no.
25, 26, 27 and 28.
Ext. B Certified copy of order-sheet from 22.02.1938 to
30.03.1984 passed in Partition Suit No. 25 of 1938 by the
court of Munsif, Hazaribagh.
Ext. B/1 Certified copy of order-sheet dated 18.09.1981 to
21.12.1982 passed in Title Appeal No. 08 of 1972/02 of
1981 by the court of 1st Addl. Subordinate Judge,
Hazaribagh.
Ext. B/2 Certified copy of order dated 17.07.2009 passed District
Land Acquisition Officer, Hazaribagh in land acquisition
case No. 5/03-04.
Ext. C Certified copy of Judgement dated 09.12.1971 passed in
Title Suit No. 148 of 1970 by the court of Munsif
Hazaribagh.
Ext. C/1 Certified copy of Judgement dated 08.1.1975 passed in
Title Appeal No. 8 of 1972/18 of 1974 by the court of 1 st,
Addl. Subordinate Judge, Hazaribagh.
Ext.D Certified copy of decree passed in Title Suit No. 148 of
1970 by the court of Munsif Hazaribagh.
Ext. D/1 Certified copy of decree passed in Title Appeal No. 8 of
1972/18 of 1974 by the court of 1st Addl. Subordinate
Judge, Hazaribagh.
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Ext.D/2 Certified copy of Final decree passed in Partition Suit no.
25 of 1938 by the court of Munsif, Hazaribagh.
Ext. E Certified copy of sale deed dated 18.04.1979 executed by
Lato Gope, Ram Gope and Bineshwar Gope in favour of
Budhani Devi.
Ext. E/1 Certified copy of sale deed dated 26.06.1990 executed by
Lato Gope, Ram Gope and Binu Gope in favour of Atri
Devi.
Ext. E/2 Certified copy of sale deed dated 26.06.1990 executed by
Rama Gope, Lato Gope and Binu Gope in favour of Parni
Devi.
Ext. E/3 Certified copy of sale deed dated 05.12.1992 executed by
Doman Gope, in favour of Devanand Gope, Umesh Gope
and Smt. Khema Devi.
23. Findings of the learned trial court
Issue No. VIII (Unity of title and possession-Schedule 'B' lands):
The learned trial court found no proof of partition between Girdhari
Gope and Bhola Gope. The court noted that the Munsif in Title Suit
No 148/1970 held that Partition Suit No. 25 of 1938 was not filed by
Bhola Gope and no compromise was reached, and the prayer for a
Final Decree in Partition Suit No. 25 of 1938 was not allowed even by
the High Court. The plea of previous partition raised by the
defendants by referring to Partition Suit No. 25 of 1938 and also
memorandum of partition (which was not exhibited) was rejected. The
Court also found that "Kabjadari" does not indicate partition through
metes and bounds. It was recorded that the properties of Khata No. 26
& 28 were not partitioned by metes and bounds. The Trial court
concluded that there is unity of title and possession for Khata No. 26
& 28 (Schedule 'B' lands).
Issue No. IX (Whether the Schedule 'C' properties are coparcenary
properties)
With respect to issue no. IX dealing with schedule-C property, the
learned trial court recorded a finding in paragraph 48 that the plaintiffs
have not been able to prove by good evidence that the land described
in schedule- C of the plaint was coparcenary/joint family property.
Paragraph 48 of the trial court's judgment is quoted as under:
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"48. I find that except this statement of PW-1 there is no
other evidence on the record to prove the facts that lands of
khata no. 25, 27, 113 & 114 were acquired from the income
of joint family. But PW-1 has not clarified that what was the
income of the joint family, what was the expenses and what
was the savings from which the lands of aforesaid khatas
were acquired. Though, there is evidence that the family
possess about 30 acres of lands. But there is no evidence on
the record to show that what was the extent of income and
expenditure and what was the savings of the joint family,
because only after expenses, the amount which is saved is
called the "nucleus" of the joint family. I find that a bald
statement has been made in this regard in the pleading as
well as evidence of PW-1. There is no case of the plaintiffs
that karta of the joint family had acquired the lands in the
name of different family members of joint family rather it is
admitted fact that lands were acquired by Girhari Gope and
Bhola Gope. Only because the family is joint, there can be
no presumption that the property which has been acquired
by a member of the family will be joint family property even
though it is recorded in the name of that particular family
member. I find that the plaintiffs have not been able to prove
by adducing good and convincing evidence that there was
joint family nucleus from which the lands of khata no. 25,
27, 113 and 114 were acquired. I have stated above there is
a bald statement that the property mentioned in schedule 'C'
is joint family property. I also went through the record of
rights of khata nos. 25 & 27 which have been recorded in
the sole name of Girdhari Gope and khata no. 113 & 114
recorded in the sole name of Bhola Gope. There is no
material to show that the plaintiffs have raised any
objection before the revenue authority in respect of the
aforesaid wrong entry in the record of rights. In such view
of the matter, I find and hold that plaintiffs have not been
able to prove by good evidence that lands described in
schedule 'C' of the plaint are coparcenary/joint family
property. I further find and hold that there is no unity of title
and possession between the parties with respect to the lands
described in schedule 'C' of the plaint and as such the
aforesaid lands are not liable to be partitioned.
Accordingly, issue no. IX is decided against the plaintiffs."
Issue No. X (Whether the plaintiffs are entitled to ½ share in
Schedule 'B' and 'C')
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With respect to issue no. X, the learned trial court held that the
plaintiffs are entitled to get ½ share in the lands described in schedule
'B' of the plaint on partition. Whereas, lands described in schedule 'C'
are not coparcenary/joint family property and not liable to be
partitioned as claimed by the plaintiffs. The findings are quoted as
under: -
"49. This issue relates to share of the plaintiffs in the suit
property. In this regard, the case of the plaintiffs is that after
death of Bondhu Gope and Mithu Gope rest two brothers
namely Girdhari Gope and Bhola Gope each became owners
of 8 annas share in the lands described in Schedule 'B' of the
plaint. Whereas the case of the defendants is that the branch
of Girdhari Gope has 2/3 shares and branch of Bhola Gope
has 1/3 share in the suit property.
50. It is admitted fact that out of the four sons of Gudru
Gope, two namely Bhondu Gope and Mithu Gope died
issue-less. According to the Hindu Law, their undivided
interest in the coparcenary property devolved upon other
coparcenars namely Girdhari Gope and Bhola Gope by
survivorship. Even if, at the time of death Bhondu Gope and
Mithu Gope were separate their property passed to their
heirs by succession. In that case also the share of Bondhu
Gope and Mithu Gope devolved upon their other brothers
namely Girdhari Gope and Bhola Gope who were their heirs.
As such, I find that Girdhari Gope and Bhola Gope had
half-half share in the lands of khata no.7 (new khata no. 26
& 28). I further find that ancestor of defendants namely
Bodhan Gope has himself admitted in the previously
instituted Title Suit No. 148 of 1970 that Girdhari Gope and
Bhola Gope had half share in the lands of khata no. 7 which
is described in Schedule 'B' of the plaint. The certified copy
of plaint of Title Suit No. 148 of 1970 has been got exhibited
on behalf of the plaintiffs and has been marked as Ext. 4/A. I
find that the admission made in the plaint of Title Suit No.
148 of 1970 by Bodhan Gope supports the claim of plaintiffs
of this case that they have half share in the joint family
property. Moreover, the record of rights of khata no. 7 (new
khata no. 26 & 28) also describe equal share of the Girdhari
Gope and Bhola Gope in the lands of said Khata. In view of
the above facts and circumstances, I find and hold that the
plaintiffs are entitled to get half share in the lands described
in schedule 'B' of the plaint on partition. Whereas, I have
already decided that lands described in schedule 'C' are not
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coparcenary/joint family property and not liable to be
partitioned as claimed by the plaintiffs. Accordingly, issue
no. X is decided and answered."
Findings of the 1st appellate court.
24. On appeal filed by defendants with regards to schedule B properties
for which partition was allowed ½ and ½ and cross appeal filed by the
plaintiffs with regards to schedule C properties for which partition was
declined, the learned 1st appellate court allowed the cross appeal of the
plaintiffs and dismissed the appeal of the defendants and consequently
both, schedule B and Schedule C properties were to be divided ½ and ½.
The defendants also argued that if the partition is to be allowed then the
share of the plaintiffs would be only 1/4th share of one son of the 2nd wife
and that of the defendants would be 3/4th (share of three sons of the 1st
wife) as the property would devolve equally amongst the four sons of
Gudru Gope and upon death of two full brothers of Girdhari Gope , the
property will only devolve upon Girdhari Gope being the full brother and
not upon Bhola Gope. The 1st appellate court gave a concurrent finding
that there is no proof of any partition between Girdhari Gope and Bhola
Gope and the land in khata no. 26 and 28 have not been partitioned by
metes and bounds and directed ½ share to the plaintiffs and upheld the
findings of the learned trial court with regards to schedule B property. The
learned 1st appellate court recorded the question as to whether Girdhari
Gope was entitled to 3/4th share of the schedule B property but did not
give any finding and simply held that plaintiffs and defendants would be
entitled to ½ share each. No finding has been recorded as to whether the
schedule B property was a coparcenary property or not although it was
admittedly an ancestral property acquired by the common ancestor -
Gudru Gope- the father of Girdhari Gope and also Bhola Gope. The
schedule C property was held to be falling under joint family property, but
not under coparcenary property, and was directed to be partitioned ½ and
½ between the plaintiffs and the defendants. The defendants are in appeal
against rejection of their appeal and also against cross appeal allowed by
the 1st appellate court. The findings relevant for the purposes of
answering the substantial questions of law are as under: -
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Paragraphs 21 to 24 of the appellate court's judgement are quoted as
under:
21. From going through the documentary oral evidence, I
find that there is no proof of any partition between the
Girdhari Gope and Bhola Gope.
22. Now the question arises whether Girdhari Gope was
entitled for 3/4th share of the properties left by his father
as per the doctrine of full blood and half blood, and
Section 4 of the Hindu Succession Act is overriding effect
on the Section 84 of the C.N.T Act and the Principal of
Estoppel or admission as mentioned in para-3 of the Ext. 5
is against the provision of statute.
23. The date, month or year of the death of Gudru Gope,
Bodhu Gope and Mithu Gope as well as the wives of
Gudru Gope has not been stated by any witness neither
any document or substantive oral evidence has been
brought. I am in agreement with the submission of the
learned counsel of the respondent that share of a
coparceners in the co-parcenary properties increases or
decreases as per the variation in the family members. The
counsel of appellant-defendant has stated that it is
mentioned in the pleading as well as in the evidence that
Gudru Gope in his lifetime divided his property in three
equal share and one Jethan share was allotted to Girdhari
Gope and 2/3rd share Girdhari Gope and his brothers
born from the first wife and 1/3 to Bhola Gope.
24. There is no any documentary and oral evidence to
prove para-13 of the Written Statement. Although this fact
has been stated by DW-1 in his affidavit-in-chief. DW-4
Mansa Gope is a elderly man of village Bujurgjamira and
he has stated that only two persons were allotted Jethans
in his village namely Biglara and Namrata. He did not
take name of Girdhari Gope and the second thing to be
considered that if the Gudru Gope divided his property in
three equal shares and one share was given to Girdhari
Gope as Jethans and 2/3 of Girdhari Gope and his brother
and one share to Bhola Gope, it is arithmetically wrong. If
whole property is divided into three equal share and one
share was given to Girdhari Gope as jethans, then only
1/3rd share can be given to Girdhari Gope and his
brother. Although, there is no evidence to prove the same.
The defendant-appellant has relied upon the final Decree
of Partition Suit No. 25/1938. However, from going
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through the documentary evidence, I find that the Court of
Munsif has held that the suit was not compromised and not
filed by Bhola Gope and the prayer for drawing final
decree with respect to the partition Suit No. 25/1938 has
not been allowed even by the Hon'ble Court. Hence, the
Partition Suit No. 25/1938 could not be a basis of partition
and the share of parties cannot be decided; since final
decree has not been drawn neither 'dakhaldahani' has
been effected. The learned lawyer of the appellant
submitted that Ext. E series, the most vital documents of
previous partition and these documents has been
overlooked by the lower Court to consider the pleading of
partition between the parties. I compared the lands sold by
parties by Ext. E series are in consonance of their
kabjabari for the Khatiyan vide Ext. 1 series. I find that the
heirs of Girdhari Gope and Bhola Gope sold of only those
lands pertaining to Khata no. 26, 28 and 113 which are
mentioned as kabzawari against their name in the
Khatiyan. The judgment reported in 1995 got into JLJR
1192 and vide para 22 of the judgment the effect of
kabjabari(kabjadari) has been mentioned. I would like to
mention only one line of the judgment as far as kabjadari
is concerned "Kabjadari does not indicate partition
through metes and bounds." In the case in hand, the
partition cannot presumed since separate kabjabari has
been mentioned in the Khatiyan as well as there has been
inte-rse transaction between the parties about the suit
land. The learned lawyer of the appellant further raised
matter of doctrine of merger. The principal of merger does
not apply in this case since the judgment and order of the
second appeal has not been brought on the record.
Further, I find that Title Suit No. 148/1970 has been
dismissed on merit and there is no any modified or reverse
judgment of Appellate Court. Therefore, the principal of
merger is not going to help the appellant anymore.
Therefore, I find that the lands pertaining to Khata no. 26
and 28 which are included in Schedule B of the plaint has
not been partitioned by metes and bounds. Therefore,
Girdhari Gope and Bhola Gope are entitled equal half
share to the lands of Schedule B' property. Therefore, the
finding of the lower Court as far as Schedule 'B' property
is concerned stands upheld."
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Paragraphs 25 to 27 of the appellate court's judgement dealing with
cross appeal of the plaintiffs are quoted as under:-
"25. Cross Appeal: The learned lawyer of the appellant
submitted that the finding of the issue No. IX and X are not
correct and further emphasize that Ext. E series is an
evidence of separate acquisition of property as well as
allotment by 3/4th share. From going through the contents
of the plaint vide para 6, it is pleaded that lands belonging
to khata no.25,27,113 & 114 were jointly acquired by
Girdhari Gope and Bhola Gope and Girdhari Gope got
recorded bigger area in his name vide Khata no.25 & 27
and lesser area in the name of Bhola Gope under Khata
no.113 & 114. Though, both were joint owners having
equal share. In the Written statement vide para 21 & 22 of
the written statement, the fact has been denied that lands
of these four khatas are coparcenary property and that has
not been acquired out of joint family fund. There is no
pleading in the written statement that khata no.25 & 27
were acquired by Girdhari Gope out of his personal
income and a vague reply has been mentioned.
26. The court below vide para 48 of his judgment has
discussed the Issue and had concluded that there is no
evidence that what was the income and expenditure and
what was the saving of joint family because only after
expenses the amount which is called nucleolus of the joint
family. P.W. - 1 vide para 41 & 42 has stated that Khata
no.25, 27, 113 & 114 were gairmajurwa and has been
settled in the name of Girdhari Gope and Bhola Gope with
respect to the Khata no.25, 27 and 113, 114 respectively.
Further, DW - 4 vide para 11 of his cross-examination
has stated that Gudru Gope had his land vide Khata no.27.
27. From the above statement, I find that the lands
pertaining to Khata no.25, 27, 113 & 114 were not self-
acquired property of Girdhari Gope and Bhola Gope
rather it was jointly acquired by persons constituting a
joint Hindu Family. There is no any separate income of
the parties. The D.W - 4 has stated in his cross-
examination vide para 33 that Bhola pre-deceased
Girdhari Gope and latter were looking after all the
business of the family which further corroborate the
pleading and statement of the plaintiff witnesses. D.W. - 4
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being the oldest witness and he has occasion to see even
Gudru Gope and has attended the Shradh ceremony of
Bodhu Gope and Muthu Gope appears to be most trusted
witness on the facts pleaded by parties. Therefore, I find
that the finding of lower Court as far as Issue No. IX and
X are concerned stands set aside and it is ordered that
Schedule 'C' land though does not fall under category of
coparcenary property, however, it was a joint Hindu
family property and is liable to be partitioned amongst
parties between Girdhari Gope and Bhola Gope by half
and half."
Findings of this court.
25. Before proceeding to decide the substantial question of law in the
light of the facts of this case, it would be useful to refer to the provisions
of law and the judgements cited by the learned counsel for the parties.
26. Section 18 of the Act of 1956 is quoted as under: -
"18. Full blood preferred to half blood- Heirs related to an
interstate by full blood shall be preferred to heirs related by half
blood, if the nature of the relationship is the same in every
other respect."
27. A few provisions which have been cited by the learned counsels from
the book namely Mulla's Hindu Law 20th Edition Volume 1 are as
under:-
Rule 28. INHERITANCE NEVER IN ABEYANCE (Page 102)
(1)On the death of a Hindu, the person who is then his nearest
heir becomes entitled at once to the property left by him. The
right of succession vests in him immediately on the death of the
owner of the property, Cannot, under any circumstance, remain
in abeyance in expectation of the birth of a preferable heir,
where such heir was not conceived at the time of the owner's
death.
(2) Where the estate of a Hindu has vested in a person, who is
his nearest heir at the time of his death, he cannot be divested
of a property, except either by the birth of a preferable heir
such as a son or a daughter, who was conceived at the time of
his death, or by adoption in certain cases of a son to the
deceased."
Rule 211. HINDU COPARCENARY (page 359)
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Hindu coparcenary is a much narrower body than the joint
family. It includes only those persons who acquire by birth an
interest in the joint coparcenary property. These are the sons,
grandsons and great-grandsons of the holder of the joint
property for the time being, in other words, the three
generations next to the holder in unbroken male descent (See S
217) The above propositions must be read in the light of what
has been stated in the note at the top of this chapter. After the
amendment of the Hindu Succession Act in 2005, a daughter of
a coparcener has been included as a coparcener along with the
sons of the coparcener. The commentary will now have to be
read accordingly.
To understand the formation of a coparcenary, it is important
to note the distinction between ancestral property and separate
property. Property inherited by a Hindu from his father,
father's father or father's father's father, is ancestral property,
Property inherited by him from other relations is his separate
property. The essential feature of ancestral property is that if
the person inheriting it has sons, grandsons or great-
grandsons, they become joint owner's coparceners with him.
They become entitled to it due to their birth. These propositions
also must be read in the light of what has been stated in the
note at the top of this chapter.
Illustrations
(a) Prior to the coming into force of the Hindu Succession Act
1956, if A who had a son B, inherited property from his father,
it became ancestral property in his hands, and B became a
coparcener with his father. Though A as head of the family was
entitled to hold and manage the property, B was entitled to an
equal interest with his father A, and to enjoy it in common with
him. B could, therefore, restrain his father from alienating it
except in the special cases where such alienation was achieved
by law, and he could enforce partition of it against his father.
On his father's death, B took the property by right of
survivorship and not by succession.
(b) ............
(c) .............
(d).............Ancestral property is a species of coparcenary
property. As stated above, if a Hindu inherits property from his
father, it becomes ancestral in his hands as regards his son. In
such a case, it is said that the son becomes a coparcener with
the father as regards the property so inherited, and the
coparcenary consists of the father and the son. However, this
does not mean that coparcenary can consist only of the father
and his sons. It is not only the sons, but also the grandsons and
great-grandsons, who acquire an interest by birth in the
coparcenary property...........
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Rule 212. FORMATION OF COPARCENARY (Page 361)
The 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 degrees
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, nephews,
cousins, etc.
Genesis of Coparcenary (Page 362)
A coparcenary is created in the following manner A Hindu
male A, who has inherited no property at all from his father,
grandfather, or great-grandfather acquires property by his own
exertions. A has a son B, B does not take any vested interest in
the self-acquired property of A during A's lifetime but on A's
death, he inherits the self-acquired property of A. If B has a
son C, C takes a vested interest in the property by reason of his
birth, and the property inherited by B from his father A,
becomes ancestral property in his (Bs) hands, and B and C are
coparceners as regards the property. If B and C continue joint,
and a son Dis born to C, he enters the coparcenary by the mere
fact of is birth. Moreover, if a son E is subsequently born to D,
he too becomes a coparcener
221. ANCESTRAL PROPERTY (Page 372)
(1) Property inherited from paternal ancestor All property.
inherited by a male Hindu from his father, father's father or
father's father's father, is ancestral property. The essential
feature of ancestral property according to Mitakshara law is
that the sons, grandsons and great-grandsons of the person
who inherits it, acquire an interest, and the rights attached to
such property at the moment of their birth. Thus, if A inherits
property, whether movable or immovable, from his father or
father's father or father's father's father, it is ancestral
property as regards his male issue.........
.............. A person inheriting property from his three
immediate paternal ancestors holds it, and must hold it in
coparcenary with his sons, son's sons, and son's son's sons, but
as regards other relations, he holds it, and is entitled to hold it
as his absolute property. The result is that if a person inheriting
property from another one of his three immediate paternal
ancestors has no son, son's son, or son's son's son, the property
is his absolute property, and no relations of his are entitled to
any interest in it in his lifetime."
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43. ORDER OF SUCCESSION AMONG SAPINDAS
.................................
Brother
(a) Of the whole blood;
(b) Of the half blood.
Brothers of the whole blood succeed before those of the half
blood. The half-brothers referred to here are sons of the same
father by a different mother. Sons of the same mother by a
different father are not entitled to succeed as 'brothers.'
44. WHOLE BLOOD AND HALF-BLOOD
(1) A sapinda of the whole blood is preferred to a spinda of the
half-blood. This preference, however, is confined to sapindas of
the same degree of descent from the common ancestor, it does
not apply to sapindas of different degrees.
...........
Thus, a paternal uncle of the whole blood is entitled to succeed
in preference to a paternal uncle of the half blood, they being
sapindas of the same degree of descent. However, a paternal
uncle of the half-blood is entitled to inherit in preference to the
son of a paternal uncle of the whole blood, the former being
nearer sapinda of the deceased than the latter."
28. In the judgement reported in 1983 SCC Online Bombay 304 (Waman
Govind Shindore v. Gopal Baburao Chakradeo), it has been held in
paragraph 13 that on a plain reading of the provisions of section 18 of the
Act of 1956, it appears to be clear that it is nothing but a substantial
reproduction of the prevalent rule of Hindu Law under which relations of
the whole blood were preferred to those of the half-blood if their degree of
relationship to the deceased was the same. Section 18 provides for a
preference of one category of heirs to another.
29. It has been held in the judgement passed in the case of Arunachala
Gounder v. Ponnusamy, (2022) 11 SCC 520 that if a property of a male
Hindu dying intestate is a self-acquired property or obtained in partition of
a coparcenary or a family property, the same would devolve by
inheritance and not by survivorship, and a daughter of such a male Hindu
would be entitled to inherit such property in preference to other
collaterals.
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Substantial question of law no. (ii) as framed in S.A No. 393 of 2016
(ii) Whether the courts below have misconstrued
Section 18 of the Hindu Succession Act while
dealing with Law of Succession regarding
inheritance of the property of Gurdu Gope?
30. This question is to be decided in the light of the aforesaid provisions
and the judgments.
31. The property of Gudru Gope is in schedule B of the plaint. The
admitted fact which has been recorded at paragraph 27 of the Trial Court's
judgment is that-
a. Gudru Gope was the common ancestor of the parties who had
acquired some lands in village Bujurg-Zamira under Ramgarh
Thana of the district of Hazaribagh which were recorded in his
name in the record of rights of last Cadastral Survey and
Settlement under khata no. 7.
b. Gudru Gope had two wives.
c. From the first wife, Gudru Gope had three sons namely
Girdhari Gope, Bhondu Gope and Mithu Gope. Out of them
Bhondu Gope and Mithu Gope died issueless.
d. From the second wife of Gudru Gope, father of the original
plaintiffs namely, Bhola Gope was born.
e. The defendants are from the branch of Girdhari Gope whereas
the plaintiffs are sons and grandsons of Bhola Gope.
f. Lands of old khata no. 7, which were subsequently included in
new khata no. 26 & 28 of revisional survey are ancestral
property.
32. As per the Plaintiffs (descendants of Bhola Gope), after the death of
the Gudru Gope, his four sons jointly inherited the lands of old khata no.
7, which became their ancestral joint family property in the hands of
Girdhari Gope and his brothers and Bhola Gope, each having an equal
half share. They were governed by the Mitakshara School of Hindu Law,
and the said joint family property was never partitioned by metes and
bounds either between the sons of Gudru Gope or amongst Girdhari Gope
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and the sons of Bhola Gope, but they were cultivating some lands jointly
and some lands separately according to their convenience. After the death
of Bhondu Gope and Mithu Gope, Girdhari Gope and Bhola Gope both
became owners of eight annas shareholders.
33. Said Gudru Gope had two wives. From the first wife, he had three
sons: Girdhari Gope, Bhondu Gope and Mithu Gope. Out of them, two of
the sons namely, Bhondu Gope and Mithu Gope died issueless, and their
branches were extinguished and their shares devolved upon Girdhari
Gope, who became shareholder to the extent of 8 Annas. From the
wedlock of second wife, Gudru Gope had one son namely, Bhola Gope,
who became a sharer to the extent of 8-annas. The Plaintiffs stated that
after Gudru Gope's death, his sons jointly inherited Khata No. 7, governed
by Mitakshara School of Hindu Law, and the property was never
partitioned by metes and bounds.
34. With respect to schedule C properties, it was asserted that they were
purchased from the earnings of joint family property i.e., schedule B
property and were also required to be partitioned.
35. As per the defendants (descendants of Girdhari Gope), Gudru Gope
had already divided his property into three equal shares during his
lifetime: one 'Jethans' share was allotted to Girdhari Gope, 2/3rd share
was allotted to Girdhari Gope, Bhondu Gope and Mithu Gope (sons from
the first wife), and 1/3rd share was allotted to Bhola Gope (son from the
second wife). It was further stated that Girdhari Gope, Bhondu Gope and
Mithu Gope were joint, while Bhola Gope lived separately.
It has been argued that after Gudru Gope's death, Bhola Gope caused
nuisance, leading to a village meeting on Jyeth Sudi 14 Sambat 1975. The
dispute was amicably settled, and a memorandum was prepared,
confirming the previous partition. After the death of Mithu Gope and
Bhondu Gope, the sole surviving brother, Girdhari Gope succeeded them.
The Defendants denied that Girdhari Gope became eight anna sharer and
argued that Khata No. 7 was not joint family property. It was asserted that
the earlier partition merged into the decree of Partition Suit No 25/1938.
They contended that Partition Suit No. 25/1938 allotted 7.31 acres to
Bhola Gope from Khata No 7. They alleged that Rama Gope and others
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wrongly influenced the revisional survey entries for Khata Nos 26 and 28
(where 3.19 acres were wrongly entered), trying to obtain Jamabandi in
their names. The Defendants denied that Khata Nos. 25, 27, 113 and 114
are coparcenary property acquired from joint family funds or that
Plaintiffs have a half share in Schedule 'C' lands. They asserted that the
Plaintiffs and their ancestors have already transferred their allotted lands
as per the 1938 partition. The Defendants argued that there is no occasion
for further partition, as it has already occurred.
36. This court finds that as per Rule 28 of Hindu Law by Mulla, on the
death of a Hindu, the person who is then his nearest heir becomes entitled
at once to the property left by him and the right to succession vests in him
immediately on the death of the owner of the property and it cannot, under
any circumstances, remain in abeyance. Thus, applying the aforesaid Rule,
in this case, upon the death of Gudru Gope, his 4 sons immediately
became entitled to 1/4th share each. Thereafter, immediately upon the
death of Bhondu Gope and Mithu Gope, two full brothers of Girdhari
Gope, their 1/4th share each stood devolved/vested in Girdhari Gope (their
full brother) and this is the position of law even as per section 18 of the
Act of 1956.
37. As per Rule 212 of Hindu Law by Mulla 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 and no coparcenary can commence without a
common male ancestor. A coparcenary is always formed and started by a
person who is receiving property from his father. It becomes ancestral
property in his hands, and therefore his own descendants would acquire
rights over the said property by birth as he forms as coparcenary with his
descendants with respect to the property which he inherits from his father.
38. Even under the Old Hindu Law, the law regarding inheritance
amongst full blood and half blood was the same as Section 18 of the Act
of 1956. Rule 43 of Mulla Hindu Law, 20th Edition, Volume 1 provides for
order of succession amongst sapindas and the relevant portion which deals
with brothers of whole blood and half-blood has been mentioned in sub-
clause 9. Brothers of the whole blood succeed before those of the half-
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blood. The half-brothers referred to here are sons of the same father by a
different mother. Therefore, it shall appear that even prior to 1956, the
prevailing Hindu Law provided that a brother of whole blood would
succeed and be preferred before a brother of half-blood. In fact, section 18
of the Hindu Succession Act, 1956, only recognized and reaffirmed the
said principle of old Hindu Law.
39. There are concurrent findings by both the courts that there has been no
previous partition in connection with the suit properties. There is no
dispute that schedule B property was self-acquired property of the
common ancestor Gudru Gope. With respect to the substantial question of
law no.(i), the point would be whether schedule B would devolve through
survivorship as coparcenary property or by succession.
40. If it has to devolve through survivorship as coparcenary property, then
upon death of two full brothers of Girdhari Gope, schedule B property
would go into the hands of the surviving coparceners, that is, Girdhari
Gope and Bhola Gope and their net share would be ½ and ½ over
schedule B property. If it has to devolve through succession of joint
family ancestral property, then upon death of two full brothers of Girdhari
Gope, the 1/4th share of each deceased brother would go to Girdhari Gope
being the full blood brother in terms of section 18 of the Act of 1956 and
not to Bhola Gope being related by half-blood with the deceased.
41. The schedule B property was admittedly self-acquired property of
Gudru Gope. He was survived by his four sons, three from first wife,
namely Girdhari Gope, Bhondu Gope, and Mithu Gope, but later two sons
died issueless and only Girdhari Gope survived and one son from 1 st wife,
namely Bhola Gope. Thus, after the death of the Gudru Gope, his four
sons jointly inherited the lands of khata no. 7 (schedule B property) ,
which became their ancestral joint family property in the hands of
Girdhari Gope and his brothers and Bhola Gope, each having equal share.
Since the property was the self-acquired property of Gudru Gope he did
not form a coparcenary with his sons with respect to his self-acquired
property and accordingly, the schedule B property would devolve by
inheritance through succession and not by survivorship.
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42. The parties are governed by the Mitakshara School of Hindu Law, and
the said ancestral joint family property in the hand of four sons of Gudru
Gope was never partitioned by metes and bounds and plea raised by the
defendants of previous partition has been rejected by the learned court.
Since the schedule B property was ancestral joint family property and not
a coparcenary property, the property immediately devolved by succession
upon the four sons of Gudru Gope and would be a coparcenary property
with respect to 1/4th share amongst descendants of each of the son as each
son and his descendants would form a separate coparcenary amongst
themselves. Since two full brothers of Girdhari Gope died issueless and
the property in their hands did not acquire the status of coparcenary
property, their share would devolve upon their full brother Girdhari Gope
in terms of section 18 of the Act of 1956 and not to their half-brother
Bhola Gope. Thus, Girdhari Gope would be entitled to 3/4 th share of the
property of his father Gudru Gope and Bhola Gope would continue to
have 1/4th share as inherited from his father Gudru Gope by succession
and would be ancestral joint family property in his hand and would
acquire the status of coparcenary property only amongst him and his
descendants.
43. The 2nd substantial question of law as framed in S.A No. 393 of 2016
is accordingly answered by holding that the courts below have failed to
consider applicability of Section 18 of the Hindu Succession Act, 1956
while dealing with Law of Succession regarding inheritance of the self-
acquired property of Gurdu Gope in the hands of his four sons - three
full brothers and one half brother and further regarding inheritance by
succession upon death of two full brothers out of the three from the 1 st
wife. Thereby the learned courts have failed to consider that the share
of two deceased full brothers would devolve upon their full brother ,
Girdhari Gope and not to half-brother Bhola Gope and consequently,
Girdhari Gope would be entitled to 3/4th share in schedule B property
and Bhola Gole would be entitled to 1/4th share in the schedule B
property. The findings of the learned courts that the plaintiffs and
defendants would be entitled to ½ share each, is set aside. The 2nd
substantial question of law as framed in S.A No. 393 of 2016 is
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accordingly answered in favour of the appellants (defendants) and
against the respondents (plaintiffs) and it is held that the sons of Bhola
Gope (plaintiffs) would be entitled to 1/4th share of the schedule B
property and the defendants would be entitled to 3/4th share of the
Schedule B property.
The 1st Substantial question of law framed in both the cases.
(i) Whether the first appellate court has committed
illegality in reversing the findings of the trial court in
respect of issue no. 9 without discussing and giving
reasons as to why first appellate court is reversing the
aforesaid finding?
44. The learned trial court while deciding issue no. IX, as to whether
the schedule-C property [ Khata No. 25,27,113 and 114] is coparcenary
property of plaintiffs and defendants observed in paragraph 48 of the
judgment that except the statement of P.W. 1 (plaintiff no. 2) there was no
other evidence on record to prove the fact that lands of Khata No.
25,27,113 and 114 were acquired from the income of joint family and
P.W. 1 had not clarified as to what was the income of joint family and
what was its expenses and savings from which the lands of the aforesaid
khatas were acquired. The learned trial court also recorded that though in
the evidence it has come that the family was possessing about 30 acres of
land but there was no evidence on record to show as to what was the
extent of income and expenditure and what was the savings of the joint
family because only after the expenses the amount which is saved can be
called the 'nucleus' of joint family. The court also recorded that it was not
the case of the plaintiffs that Karta of the joint family had acquired the
lands in the name of different family members of the joint family, rather it
was an admitted fact that the lands were acquired by Girdhari Gope and
Bhola Gope. The learned Trial Court held that only because the family is
joint, there can be no presumption that the property which has been
acquired by a member of the 'joint family' will be 'joint family property'
even though it is recorded in the name of that particular family member.
The learned trial court was of the definite view that the plaintiffs have not
been able to prove by adducing good and convincing evidence that there
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was joint family nucleus from which the lands of schedule C [Khata nos.
25,27,113 and 114] were acquired.
45. The learned trial court also recorded that even as per the record of
rights, Khata No. 25 and 27 were recorded in the sole name of Girdhari
Gope and Khata No. 113 and 114 were recorded in the sole name of Bhola
Gope and there was no material to show that the plaintiffs raised any
objection in connection with such entry in record of rights.
46. The learned court ultimately held that the plaintiffs have not been able
to prove by good evidence that the land described in schedule-C [Khata
nos.25, 27, 113 and 114] were coparcenary/joint family property and held
that there was no unity of title and possession between the parties with
respect to the lands described in schedule-C [Khata nos. 25,27,113 and
114] and ultimately held that the land in Schedule-C [Khata nos.
25,27,113 and 114] were not liable for partition. Consequently issue no.
IX was decided against the plaintiffs.
47. So far as the learned 1st appellate court is concerned, the point
regarding schedule C of the property was taken up in cross appeal filed by
the plaintiffs from paragraph 25 to 27. The learned 1st appellate court
recorded that it was pleaded in the plaint that Khata No. 25,27,113 and
114 were jointly acquired by Girdhari Gope and Bhola Gope and Girdhari
Gope got recorded bigger area in his name by Khata No. 25 and 27 and
lesser area in the name of Bhola Gope by khata No. 113 and 114. It was
claimed by the plaintiffs that both were having equal shares and were joint
owners of the property. In the written statement, it was denied that the
aforesaid land in Khata No. 25,27,113 and 114 were coparcenary property
and it was also stated that the property was not acquired out of joint
family fund. The court also observed that there was no pleading in the
written statement that Khata No. 25 and 27 were acquired by Girdhari
Gope out of his personal income and a vague reply was given. The learned
1st appellate court thereafter considered the findings of the learned trial
court as recorded in paragraph 48 of the trial court's judgment vide
paragraph 26 of the 1st appellate court's judgment. The learned 1st
appellate court referred the evidence of P.W. 1 (the plaintiff no. 2) who
stated in paragraph 41 and 42 that Khata No. 25,27,113 and 114 were gair
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majarua land and were settled in the name of Girdhari Gope with respect
to khata no. 25 and 27 and in the name of Bhola Gope with respect to
khata nos. 113 and 114. D.W. 4 in his cross examination has stated that
Gudru Gope had his land in khata no. 27.
48. From the aforesaid materials, the learned 1st appellate court was of
the view that the lands in Khata No. 25,27,113 and 114 were not self-
acquired property of Girdhari Gope and Bhola Gope, rather it was jointly
acquired by the persons constituting a joint family. It was also observed
that there was no separate income of the parties and D.W. 4 in his cross
examination has stated that Bhola Gope had predeceased Girdhari Gope
and Girdhari Gope was looking after all the business of the family which
was further corroborated by the pleadings and statements of the plaintiffs'
witnesses. The court was of the view that D.W. 4 was the oldest witness
and was most trusted witness on the facts pleaded by the parties. The
learned 1st appellate court ultimately held that Schedule-C land though
does not fall under the category of coparcenary property, however it was a
joint Hindu family property and was liable to be partitioned amongst
parties between heirs of Girdhari Gope (defendants) and heirs of Bhola
Gope (plaintiffs) by ½ and ½.
49. The learned counsel for the respondents has relied upon the judgment
reported in 1994 0 AIR (AP) 134 [Jupudi Venkata Vijaya Bhaskar -vs-
Jupudi Kesava Rao (died)] wherein it has been observed by referring to
an earlier judgement of the Hon'ble Supreme Court that the separate
property of a member of a joint Hindu family may be impressed with the
character of joint family property if it is voluntarily thrown by him into
the common stock with the intention of abandoning his separate claim
therein. The separate property of a Hindu ceases to be a separate property
and acquires the characteristic of a joint family or ancestral property not
by any physical mixing with his joint family or his ancestral property but
by his own volition and intention by his waiving and surrendering his
separate rights in it as separate property. The necessary pre-condition for
the application of the doctrine of Blending is the existence of coparcenary
property as recognized by the Supreme Court in Mallesappa Ban-deepa
Desai v. Desai Mallappa, AIR 1961 SC 1268 that the doctrine of
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throwing into common stock inevitably postulates that the owner of a
separate property is a coparcener who has an interest in the coparcenary
property and desires to blend his separate property with the coparcenary
property. In the said case there was no coparcenary property and the plaint
schedule properties were alleged to be joint family properties and
accordingly, the question of blending separate property with the
coparcenary property did not arise. By mere declaration of status as
"hindu Undivided Family", it could not be said that the party had blended
his private properties with that of the joint family properties.
50. In the judgement passed by the Hon'ble Supreme Court reported in
(2003) 10 SCC 310 [D.S. Lakshmaiah & Anr. vs. L. Balasubramanyam
& Anr] which has been relied upon by both the parties, the question to be
determined as is reflecting from paragraph 7 of the report was that as to
who is required to prove the nature of property, whether it is a 'joint
Hindu family property' or 'self-acquired property'. In the said case the
factual background to decide the point was stated in paragraph 8 of the
report wherein it has been observed that there was evidence that the
property in item no. 2 was joint family property but there was no evidence
that the said property was yielding any income or that any nucleus was
available with the aid of which property in item no.1 could be purchased
and there was no evidence to show the income from item 2 property or the
value of the item 2 property and at the same time no evidence was led to
prove that the party had separate income to acquire item 1 property. The
Hon'ble Supreme Court has considered numerous judgements including
the following: -
a. In Appalaswami v. Suryanarayanamurti [AIR 1947 PC 189 : 1947
All LJ 587] the Privy Council held that as per Hindu law proof of the
existence of a joint family does not lead to the presumption that
property held by any member of the family is joint, and the burden
rests upon anyone asserting that any item of property is joint to
establish the fact. But where it is established that the family possessed
some joint property which from its nature and relative value may have
formed the nucleus from which the property in question may have
been acquired, the burden shifts to the party alleging self-acquisition
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to establish affirmatively that the property was acquired without the
aid of the joint family property.
b. In Srinivas Krishnarao Kango v. Narayan Devji Kango [AIR 1954
SC 379] the contention that was urged on behalf of the appellant was
that the burden was wrongly cast on the plaintiff of proving that the
acquisition of the properties were made with the aid of joint family
funds as there were joint family properties to the extent of 56 acres
and accordingly it must be presumed that the acquisitions were made
with the aid of joint family funds and, therefore, the burden lay on the
defendants who claimed that they were self-acquired acquisitions to
establish that they were made without the aid of joint family funds.
The Hon'ble supreme court rejected the argument and held that only
properties were proved but there was no satisfactory evidence about
the income which those lands were yielding at the material time and
the important thing to be considered is the income which the nucleus
yields and explained further by giving an example that a building in
the occupation of the members of a family and yielding no income
could not be a nucleus out of which acquisitions could be made, even
though it might be of considerable value and on the other hand, a
running business, in which the capital invested is comparatively small,
might conceivably produce substantial income which may well form
the foundation of the subsequent acquisitions.
c. In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda
Sankh [(1969) 1 SCC 386] it was reiterated that the burden of proving
that any particular property is joint family property in the first
instance is upon the person who claims it to be so. But if the
possession of a nucleus of the joint family property is either admitted
or proved, any acquisition made by a member of the joint family is
presumed to be joint family property. This is, however, subject to the
limitation that the joint family property must be such as with its aid
the property in question could have been acquired. It is only after the
possession of an adequate nucleus is shown, that the onus shifts on to
the person who claims the property as self-acquisition to affirmatively
make out that the property was acquired without any aid from the
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family estate. The Hon'ble Supreme Court did not agree that only
upon showing possession of adequate nucleus the onus shifts and
observed that while considering the question of shifting of burden, the
important thing to consider is the income which the nucleus yields.
d. In Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik [(1973) 2
SCC 334] the Court again held that when a joint family is found to be
in possession of nucleus sufficient to make the impugned
acquisitions then a presumption arises that the acquisitions standing
in the names of the persons who were in the management of the
family properties are family acquisitions.
e. In Surendra Kumar v. Phoolchand [(1996) 2 SCC 491] the Court
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 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 funds.
51. The Hon'ble Supreme Court in (2003) 10 SCC 310 (supra) ultimately
held in paragraph 18 of the judgement that there is no presumption of a
property being joint family property only on account of existence of a
joint Hindu family. The one who asserts, has to prove that the property is
a joint family property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could be acquired,
there would be presumption of the property being joint and the onus
would shift on the person who claims it to be self-acquired property to
prove that he purchased the property with his own funds and not out of
joint family nucleus that was available.
52. In the facts of the said case in (2003) 10 SCC 310 (supra) the Hon'ble
Supreme court held in paragraph 17 of the judgement that the respondents
of the said case having failed to discharge the initial burden of
establishing that there was any nucleus in the form of any income
whatsoever from Item 2 property and no other nucleus was claimed, the
burden remained on the respondents to establish that Item 1 property was
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joint family property. The Court further recorded that in this view, the fact
that the first appellant has not led any evidence to establish his separate
income is of no consequence insofar as the claim of the respondents is
concerned. Under these circumstances, for failure to lead evidence, the
respondents' claim of Item 1 to be joint family property would fail as was
rightly held by the first appellate court in the said case before the Hon'ble
Supreme Court .
53. In the aforesaid judgment of the Hon'ble Supreme court itself, the
argument that even if assuming that the property was self-acquired
property of the appellant but the appellant blended it with the joint family
property and therefore, it had become joint family property, was also
rejected by observing that the law on the aspect of blending is well settled
that property separate or self-acquired of a member of a joint Hindu
family may be impressed with the character of joint family property if it is
voluntarily thrown by the owner into the common stock with the intention
of abandoning his separate claim therein. It was observed that in order to
establish such abandonment, a clear intention to waive separate rights
must be established. It was also observed that from the mere fact that
other members of the family were allowed to use the property jointly with
himself, or that the income of the separate property was utilised out of
generosity to support persons whom the holder was not bound to support,
or from the failure to maintain separate accounts, abandonment cannot be
inferred, for an act of generosity or kindness will not ordinarily be
regarded as an admission of a legal obligation. A reference was made in
the said case to the judgement of Lakkireddi Chinna Venkata
Reddi v. Lakkireddi Lakshmama [AIR 1963 SC 1601: (1964) 2 SCR
172] and K.V. Narayanan v. K.V. Ranganandhan [(1977) 1 SCC 244].
In the said case, the respondents did not lead any evidence on the
aforesaid aspects and, therefore, it could not be held that the first appellant
blended Item 1 property into the joint family account. It was held that
Item 1 property cannot be held to be joint family property and the
judgement impugned was set aside and the judgment and decree of the
first appellate court was restored by the Hon'ble Supreme Court in (2003)
10 SCC 310 (supra) .
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54. Paragraph 48 of the learned trial court's judgement is quoted as
under:-
"48. I find that except this statement of PW-1 there is no
other evidence on the record to prove the facts that lands of
khata no. 25, 27, 113 & 114 were acquired from the income
of joint family. But PW-1 has not clarified that what was the
income of the joint family, what was the expenses and what
was the savings from which the lands of aforesaid khatas
were acquired. Though, there is evidence that the family
possess about 30 acres of lands. But there is no evidence on
the record to show that what was the extent of income and
expenditure and what was the savings of the joint family,
because only after expenses, the amount which is saved is
called the "nucleous" of the joint family. I find that a bald
statement has been made in this regard in the pleading as
well as evidence of PW-1. There is no case of the plaintiffs
that karta of the joint family had acquired the lands in the
name of different family members of joint family rather it is
admitted fact that lands were acquired by Girhari Gope and
Bhola Gope. Only because the family is joint, there can be
no presumption that the property which has been acquired
by a member of the family will be joint family property even
though it is recorded in the name of that particular family
member. I find that the plaintiffs have not been able to prove
by adducing good and convincing evidence that there was
joint family nucleous from which the lands of khata no. 25,
27, 113 and 114 were acquired. I have stated above there is
a bald statement that the property mentioned in schedule 'C'
is joint family property. I also went through the record of
rights of khata nos. 25 & 27 which have been recorded in
the sole name of Girdhari Gope and khata no. 113 & 114
recorded in the sole name of Bhola Gope. There is no
material to show that the plaintiffs have raised any
objection before the revenue authority in respect of the
aforesaid wrong entry in the record of rights. In such view
of the matter, I find and hold that plaintiffs have not been
able to prove by good evidence that lands described in
schedule 'C' of the plaint are coparcenary/joint family
property. I further find and hold that there is no unity of title
and possession between the parties with respect to the lands
described in schedule 'C' of the plaint and as such the
aforesaid lands are not liable to be partitioned.
Accordingly, issue no. IX is decided against the plaintiffs."
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55. The learned 1st Appellate Court in para 26 recorded that the learned
Trial Court in paragraph 48 of the judgment had concluded that there was
no evidence as to what was the income and expenditure and what was the
savings of the joint family because only after expenses, the amount which
is called nucleus of the joint family can be arrived. The appellate court
also observed that D.W.4 in his cross examination had stated that Gudru
Gope (common ancestor) had his land vide Khata No. 27. The learned
appellate court in para 27 held that from the above statement of D.W-4, it
appeared that the land pertaining to khata no. 25,27,113 and 114 were not
the self-acquired property of Girdhari Gope and Bhola Gope (both sons of
Gudru Gope) rather they were jointly acquired by persons constituting
joint family. The court then observed that there were no separate income
of the parties and D.W-4 had stated in his cross examination that Bhola
Gope had predeceased Girdhari Gope and latter was looking after the
family business which corroborated the pleadings and the statement of the
plaintiffs' witnesses and found that D.W-4 was the most trusted witness.
The finding of the trial court on issue no. IX and X were set-aside and it
was held that though Schedule C property [ khata no. 25,27,113 and 114]
was not coparcenary property, but was a joint Hindu Family Property.
56. This Court finds that it was nobody's case that Schedule C property
[Khata Nos. 25,27, 113 and 114] were acquired by Gudru Gope rather it
was the specific case of the plaintiffs that upon death of Gudru Gope the
self-acquired property of Gudru Gope [schedule B property] devolved
upon his sons and Girdhari Gope and Bhola Gope (both sons of Gudru
Gope), who acquired schedule C property from the joint family fund
from schedule B property. Therefore, reference of cross examination of
D.W-4 that Gudru Gope (common ancestor) had his land vide Khata No.
27 has no relevance. The case of the plaintiffs was that Schedule C
property was jointly acquired by Girdhari Gope and Bhola Gope from the
income of the properties of Schedule-B and therefore they were entitled to
half and half share irrespective of entry made in the record of rights. It is
not in dispute that Khata No. 25 and 27 was recorded in the name of
Girdhari Gope and Khata No. 113 and 114 was recorded in the name of
Bhola Gope. This court finds that though there is a finding of the learned
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1st appellate court that there is no separate income of the parties, but there
is no finding that there was a nucleus, much less adequate/sufficient
nucleus in the joint family from schedule B property [no other property of
the family has been referred] so as to enable Girdhari Gope and Bhola
Gope to acquire Schedule-C property. It was nobody's case that there was
joint family business from which schedule C property could be acquired
which could partake the character of joint family property and other wise
also there is no material regarding income from such business much less
sufficient income to constitute adequate nucleus to acquire schedule C
property. Further, there is neither any pleading nor any finding that the
properties acquired by Girdhari Gope and Bhola Gope (both sons of
Gudru Gope) were thrown into the joint family and thereby they
constituted joint family property.
57. The learned 1st appellate court has completely misdirected itself in law
in the facts of this case while holding that schedule C was Joint family
property inspite of the fact that the initial onus was upon the plaintiffs to
prove that the schedule C property was acquired jointly by Girdhari Gope
and Bhola Gope (both sons of Gudru Gope) from the joint family fund
arising from joint family property of schedule B and that there was
sufficient nucleus constituting joint family find to acquire the schedule C
property. This onus was never discharged by the plaintiffs. In such
circumstances, the onus never shifted upon the defendants to prove the
source of fund to acquire the property of khata no. 25 and 27 [part of
schedule C property] which was recorded in the name of Girdhari Gope.
This court finds that the learned 1st appellate court has failed to meet the
reasons of the learned trial court who held in paragraph 48 of the
judgment that there was no evidence of nucleus in the joint family to
acquire schedule C property and the trial court held that the same was not
liable to be partitioned.
58. This court is of the considered view that the present case with respect
to schedule C property is squarely covered by the judgement relied upon
by the parties reported in (2003) 10 SCC 310 (Supra), but in favour of the
appellant (defendants) and against the respondents (plaintiffs).
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59. This court finds that the plaintiffs failed to prove that schedule C
property was joint family property and consequently this Court holds that
the khata nos. 25 and 27 having been recorded in the name of Girdhari
Gope (defendants) and Khata No. 113 and 114 having been recorded in
the name of Bhola Gope (plaintiffs) were their individual properties and
cannot be termed as their Joint Family Properties. Though the defendants
had not stated that they had purchased the Khata No. 25 and 27 out of
their personal income but they had clearly denied that stand of the
plaintiffs that the lands in schedule C were acquired out of joint family
fund. In such circumstances, the onus was upon the plaintiffs to prove that
there was nucleus in the form of an income from Schedule-B property to
acquire Schedule-C property. The initial burden of establishing nucleus
and also sufficiency of nucleus in the joint family to show that schedule-
C property could be acquired from the income of other joint family
property (schedule B) did not shift upon the defendants and merely
because the defendants did not specifically plead that Girdhari Gope had
separate income and had not proved that Girdhari Gope had separate
income to acquire the lands in Khata No. 25 and 27 which is a part of
Schedule-C property, is of no consequence. It was enough for the
defendants to plead that the schedule-C property was not acquired out of
joint family fund. The plaintiffs in the present case have failed to
discharge their onus when seen in the light of the judgment passed by the
Hon'ble Supreme Court reported in (2003) 10 SCC 310 (Supra), the
finding of the learned 1st appellate court with respect to issue no. (IX) is
perverse and consequently, the finding of the learned 1st appellate court
that Schedule-C property was a joint family property liable to be
partitioned between Girdhari Gope and Bhola Gope by ½ and ½ is also
not in accordance with law. Accordingly, it is held that the learned 1 st
appellate court had committed illegality in reversing the finding of the
learned trial court in respect of issue no. (IX) and the judgement of the 1st
appellate court has been passed without discussing and giving reasons,
much less adequate and acceptable reasons as to why the 1 st appellate
court was reversing the aforesaid finding.
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The 1st substantial question of law is accordingly decided in favour of
the appellants (defendants) and against the respondents (plaintiffs).
60. As a cumulative effect of the aforesaid answers to the substantial
questions of law in favour of the appellants(defendants), the finding of the
learned 1st appellate court with respect to schedule C property is set-aside
and the finding of the learned trial court with respect to schedule C
property is upheld. Further, the finding of the learned trial court with
regards to ½ and ½ share in schedule B property, which was upheld by the
learned 1st appellate court, is set-aside by holding that the defendants and
the plaintiffs would be entitled to share of ¾: ¼ instead of ½: ½ with
respect to schedule B property.
61. These 2nd appeals are accordingly allowed in the aforesaid terms.
62. Office to prepare decree accordingly.
63. Pending interlocutory application, if any, is dismissed as not pressed.
64. Let this judgment be communicated to the learned court concerned
through 'FAX/email'.
(Anubha Rawat Choudhary, J.)
Date of judgment 25.11.2025
Pankaj/Binit
Date of uploading: 26./11/2025
