Patna High Court
Most. Lal Muni Devi And Ors vs Murahu Singh on 26 September, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.101 of 2007
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1(a). Most. Lal Muni Devi, W/o of Late Ramkishun Singh
1(b). Shashi Kumar Singh, S/o of Late Ramkishun Singh
1(c). Arun Kumar Singh, S/o of Late Ramkishun Singh
1(d). Kamlesh Kumar, S/o of Late Ramkishun Singh
All are residents of Vill-Mahuar, P.S.-Ramgarh, P.O.-
Sahuka, Dist.-Kaimur, Bhabhua
... ... Appellant/s
Versus
Murahu Singh, son of Ram Lochan Singh, resident of Vill-Awariha, P.S.-
Bhabhua, P.O.-Bhabhua, Dist.-Kaimur, Bhabhua
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Syed Firoz Raza, Sr. Adv.
Mr. Ashok Kumar, Adv.
For the Respondent/s : Mr. Praveen Prabhakar, Adv.
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 26-09-2025
This Second Appeal has been filed against the judgment
and decree dated 04.05.2007 passed in Title Appeal No. 03/21 of
2005 by the learned Additional District Judge, Fast Track Court-Vth,
Bhabua, Kaimur, whereby, the judgment and decree dated
18.12.2004 passed in Title Suit No. 201 of 1996 by the learned
Munsif, Bhabua, Kaimur has been affirmed.
2. The plaintiff's heirs are the appellants and the defendant
is the respondent in the present appeal.
Patna High Court SA No.101 of 2007 dt.26-09-2025
2/16
3. The present appeal was admitted on 26.10.2009 and
following substantial questions of law were formulated while
admitting the appeal:-
(i). Whether the court of appeal below itself finding
impugned deed of gift dated 29.11.1976 (Exhibit 5) to be doubtful
was justified in rejecting the claim of the plaintiff only on the basis of
Exhibits D and E which were orders passed the by the Director of
Consolidation and the High Court?
(ii). Whether the aforesaid orders (Exhibits D and E)
being only on the question of sanction granted by the Consolidation
authorities without going into the genuineness and validity of the
deed of gift, the learned courts below were justified in refraining
themselves from taking into consideration genuineness and validity
of the impugned deed?
4. The plaintiff filed Title Suit No. 201 of 1996 for
declaration of Gift Deed No. 7866 dated 29.11.1976 executed by
Rambriksh Singh in favour of defendant, namely, Murahu Singh as
null and void, illegal and also for permanent injunction over the suit
land of Schedule-Gha of the plaint. The Schedule-Gha is part of
Schedule-G which is property of Gift Deed No. 7866 executed by
Rambriksh Singh in favour of Murahu Singh (defendant).
5. The case of the plaintiff as pleaded in the plaint is that
Narkhu Rai was the ancestor and he had three sons, namely, Bharosa
Patna High Court SA No.101 of 2007 dt.26-09-2025
3/16
Rai, Jaipal Rai and Shisupal Rai. Jaipal Rai died issueless, Shisupal
Rai had three sons; Mahavir Rai, Mahadeo Rai and Sahdeo Rai.
These three brothers died leaving behind Asharfi Kunwar, Sonia
Kunwar and Batasi Kunwar as their wives (widows). They were alive
at the time of Cadestral Survey. Bharosa Rai died leaving behind two
sons, namely, Hit Narayan Rai and Jagdeo Rai. Hit Narayan Rai died
leaving a son Sitaram Singh. The plaintiff is son of Sitaram Rai.
Jagdeo Rai died leaving behind a son Subedar Singh, Subedar Singh
also died leaving behind son Rambriksh Singh. The wife of
Rambriksh Singh pre-deceased him and he died issueless on
25.11.1979
while living with the plaintiff. After the death of
Rambriksh Singh, his property devolved upon the plaintiff, namely,
Ramkishun Singh as heir. It is further case of the plaintiff that the
family of Narhu Rai had possessed the land at the time of Cadestral
Survey in the year 1908-09 and at the time of Cadestral Survey
grandfather of the plaintiff Hit Narayan Rai and Rambriksh Singh,
Asharfi Kunwar, Batasi Kunwar, Sonia Kunwar were alive and their
names stood in the Cadestral Survey also. The wives of Mahavir Rai,
Mahadeo Rai and Sahdeo Rai were alive but they had no right in the
property of Shisupal Rai and the property of Shisupal Rai devolved
on Hitnarayan, grandfather of plaintiff and Asharfi Kunwar, Sonia
Kunwar and Batasi Kunwar were only maintenance holders. Further
case of the plaintiff is that the land of R.S. Khata No. 150 was in the
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name of Ramkishun Singh and Rambriksh Singh. Due to the old age
of Rambriksh Singh, when he had lost his memory, the defendant got
executed a gift deed dated 29.11.1976 in his favour from Rambriksh
Singh by playing fraud, which is under challenge in the suit. It is
further contended that Rambriksh Singh never executed any gift deed
as alleged and when it came to his knowledge about the alleged gift
deed, he cancelled the same by registered cancellation deed dated
12.02.1977, but the defendant infuriated by the order dated
23.09.1996 passed by this Court in C.W.J.C. No. 2393 of 1985 and
C.W.J.C. No. 4033 of 1985, threatened to dispossess the plaintiff and
started creating disturbance in his peaceful possession over the suit
land. The defendant wants to claim exclusive title over the suit land.
The plaintiff resisted the defendant not to claim and set up exclusive
title over the suit land and not to disturb the plaintiff in his peaceful
possession over the suit land, but the defendant paid no heed,
ultimately he denied on 29.09.1996, hence the suit has been filed.
6. On summons, the defendant appeared and filed his
written statement. Apart from ornamental objection, the defendant
pleaded that Rambriksh Singh was not residing with the plaintiff. The
entry of R.S. Khatiyan in the name of the plaintiff is wrong. The
plaintiff has wrongly inserted his name in Revisional Survey
Khatiyan No. 150 because Rambriksh Singh was rustic and illiterate
person. The said Ram Briksh was an old man and no service was
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done by the plaintiff to Rambriksh Singh. After the death of
Rambriksh Singh his sharad was performed by the defendant. There
was ill-will between the plaintiff and Rambriksh Singh. Murahu
Singh (defendant) is grandson of Gangiya Devi, who was sister of
Rambriksh Singh and due to love and affection, Rambriksh Singh
executed the alleged gift deed in the favour of the defendant. The
deed of gift has been validly executed by Rambriksh Singh after
getting permission from the Consolidation Authority and the deed of
gift has not been cancelled by Rambriksh Singh and the permission
as granted by the Consolidation Authority has not been set aside in
presence of the defendant. It is further case of the defendant that the
transfer deed executed by Rambriksh Singh after execution of gift
deed is forged and fabricated as Rambriksh Singh had no right to
execute any deed in favour of Nathuni Singh and the land transferred
to school by Rambriksh Singh was with the consent of the defendant.
It is pleaded that the payment of rent had not been made by
Rambriksh Singh and has stated that the plaintiff cannot get any
benefit of rent paid to the Government. It is further pleaded that the
defendant and the plaintiff both have challenged the order before this
Hon'ble High Court. It is also contended that the land which covers
the deed of gift is in possession of the defendant and description of
land as described in the plaint is wrong and baseless. The plaintiff
has executed some forged deeds covering some portion of the suit
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land in favour of his sons, namely, Shashi, Arun and Rakesh by
impersonating another person in place of Rambriksh Singh. There
was a criminal proceeding between Rambriksh Singh and the
plaintiff. The defendant is not related with Shri Niwas Singh but he is
a relative of Rambriksh Singh. The defendant is grandson of sister of
Rambriksh Singh. Further case of the defendant is that the gift deed
has been executed by Rambriksh Singh in lieu of service rendered by
the defendant voluntarily. There has been acceptance of deed of gift
that it is valid and legal. The plaintiff has no concern with the gift
property. Neither plaintiff is heir nor legal representative of
Rambriksh Singh. The plaintiff has filed the present suit only to
harass the defendant.
7. On the basis of the pleadings, the learned Trial Court
had framed issues. On analyzing the evidences and materials on
record, the learned Trial Court dismissed the suit holding that the
deed of gift is valid up to half share and further held that the deed of
gift executed in favour of defendant is not valid up to the entire share
and the defendant cannot acquire right and title of the entire land.
8. Aggrieved thereof, the plaintiff assailed the judgment
and decree of learned Trial Court by way of filing Title Appeal No.
03 of 2005/Trial Court Case No. 21 of 2005 before the learned lower
Appellate Court, which was also dismissed affirming the finding of
the Trial Court with observation that the land sold by the parties will
Patna High Court SA No.101 of 2007 dt.26-09-2025
be adjusted in their respective share. Learned counsel for the
appellants submits that from the pleadings of both the parties, it
appears that admittedly the land in question was jointly recorded in
the name of Ramkishun Singh and Rambriksh Singh and there was
no partition by metes and bound and as such the share of Rambriksh
Singh was not decided. Learned counsel for the appellants further
submits that the main issue involved in this case is that whether a
deed of gift can be executed with respect to the undivided property or
not. It is apparent from the Trial Court judgment that Ext.-6 and Ext.-
6A produced on behalf of the plaintiff is the Khatiyan which was
jointly recorded in the name of Ramkishun Singh and Rambriksh
Singh and in the absence of any partition and allocation of separate
share, the deed of gift cannot be executed and cannot be held to be
valid in accordance with law as for the deed of gift, there must be an
important requirement that donee has to come in immediate
possession over the property gifted but as the share was not
bifurcated, the donee could not have come in possession and the
deed of gift has never come in force and became inoperative but
despite that the learned Trial Court has held that the deed of gift is
valid up to the half share without going into the legal position based
only on the order of Consolidation Authority i.e. Ext.-D, who had no
authority to conclude that the parties have half and half share.
Patna High Court SA No.101 of 2007 dt.26-09-2025
9. It is further submitted that so far the finding of the lower
Appellate Court is concerned, the Appellate Court has come to the
conclusion by discussing the evidence that the defendant has not
given the details of land of the gift nor has disclosed the boundaries
of the gifted land which creates a doubt that he never came in
possession on the basis of deed of gift and it has been inoperative and
in absence of donee's possession, the deed of gift cannot be held to
be valid but despite that the Appellate Court has affirmed the
judgment of the Trial Court.
10. Learned counsel for the appellants further contended
that so far Ext.-D and E are concerned, Ext.-D is the order passed by
Director Consolidation, Patna and Ext.-E is the order passed by this
Court in writ jurisdiction i.e. C.W.J.C. No. 4033 of 1985. It appears
from the judgment of the courts below that Appellate Court has
solely relied upon the order of the Consolidation Authority and the
order passed by this Court which cannot be justified and be a ground
for holding that the deed of gift was valid, genuine and was executed
in accordance with law. However, the deed of gift has to be decided
independently according to its spirit and intention of the donor, the
property given in gift but it appears that the learned Trial Court and
lower Appellate Court only on the basis of Ext.-D and Ext.-E have
held that the deed of gift is genuine and did not take any stress to
formulate question of law that Whether the donor was competent to
Patna High Court SA No.101 of 2007 dt.26-09-2025
execute deed of gift in joint family property? The share of Rambriksh
Singh and Ramkishun Singh has not been allotted by metes and
bound both are having joint unity of title and joint unity of
possession over the gifted property. In such view of the matter, the
gift cannot be held to be genuine and valid.
11. It is further submitted that from perusal of Ext.-A
marked by the defendant, it appears that there is averment by
Rambriksh Singh that the property mentioned in the Deed of gift is
exclusively in possession of Rambriksh Singh which was given in
partition and as such the finding of the Trial Court as well as
Appellate Court appears to be totally mis-conceived. From perusal of
Ext.-6 and 6A, it appears that Ramkishun Singh and Rambriksh
Singh have equal share in the property and the entire property was
given in gift for which Rambriksh Singh was never competent as it
was in the name of both persons. The evidence was adduced by the
witnesses of the gift deed and they have also denied its execution and
as such, the deed of gift appears to be not genuine. The evidence
adduced by the defendant has not established the relationship with
Rambriksh Singh or his branch nor the defendant has filed any
document to establish relationship with Rambriksh Singh though
from the record it appears that it is contrary.
12. Learned counsel for the appellants vehemently submits
that a gift of a coparcener with regard to undivided property is void
Patna High Court SA No.101 of 2007 dt.26-09-2025
in law as it finds support from judgment in the case of Thamma
Venkata Subbamma (Dead) by L.R. Vs. Thamma Rattamma and
Ors. reported in AIR 1987 SC 1775. The Apex Court has held that a
gift by a coparcener of his undivided interest in the coparcenary
property is void. The same view has been taken in a decision in the
case of Sabitri Devi and Ors. vs. Lakhan and Ors. reported in AIR
2017 Pat 85, wherein, it has been held that gift by a coparcener of
undivided share is void transaction since there is unity of title and
possession between the parties and there was no partition. The so
called gift is void document and no valid right, title and interest will
pass.
13. Learned counsel for the appellants further submits that
gift of undivided share in the joint family property is void in the eye
of law. Section 122 of the Transfer of Property Act defines 'Gift' as
transfer of certain existing movable and immovable property
voluntarily and without consideration. The gift deed in the present
case is void as it is not a gift deed of certain properties in the sense
that undivided share in joint family property is never certain, it is,
rather, fluctuating. The gift of undivided share in the joint family
property is also void under Hindu Law as per Article 258 of Mulla's
Hindu Law which denotes that no coparcener can dispose of his
undivided interest in the coparcenary property by gift. The
coparcener may, however, can make a gift of his interest with the
Patna High Court SA No.101 of 2007 dt.26-09-2025
consent of other coparcener, otherwise, the same shall be invalid.
This view has been taken in the case of Shri Raja Ram and others
Vs. Poonam Kumari reported in 2025 (5) BLJ 230. In the light of
above discussion, the deed of gift dated 29.11.1976 executed by
Rambriksh Singh without consent of the other coparceners in favour
of Murahu Singh is null and void.
14. On the other hand, learned counsel for the sole
defendant/respondent submits that the respondent did not take
interest to contest the present appeal and submits before this Court to
permit the respondent to withdraw himself from defending the
appeal. In this regard, a detailed supplementary affidavit by way of
reply to I.A. No. 03 of 2019 has been filed by the respondent on
26.08.2019, which is on record. In view of the affidavit filed by the
respondent, it is specifically submitted that the subject matter of the
dispute in the present appeal is the registered Gift Deed No. 7866
dated 29.11.1976 allegedly executed by Rambriksh Singh in favour
of Murahu Singh, son of Late Ram Lochan Singh without obtaining
permission under Section 5 of the Consolidation of Holding Act. It is
further submitted that R.S. Khatiyan of Khata No. 150 of Mauza-
Jangalchhera as well as R.S. Khatiyan No. 233 of Mauza-Mahuar are
recorded in joint name of Rambriksh Singh and Ramkishun Singh
having equal share. The lands of Khata No. 233 being 58 decimals of
Patna High Court SA No.101 of 2007 dt.26-09-2025
Mauza-Mahuar and lands of Khata No. 150 of Mauza-Jangalchhera
being 12.85 acres were subject matter of dispute.
15. Learned counsel for the respondent further submits
that the property under gift was admittedly joint property of
Ramkishun Singh and Rambriksh Singh and there was title and
possession of both the coparcener. It is further contended in the
affidavit that any gift with respect to joint family property cannot be
gifted and as such gift deed is void ab initio. It is further contended
through supplementary affidavit filed by the respondent that the
respondent was not related to Rambriksh Singh in any manner. The
family of the appellants and the respondent have separate genealogy.
Two genealogical table have been mentioned in supplementary
affidavit, first genealogical table is of Ramkishun Singh and
Rambriksh Singh and second genealogical table is of Late Kunj
Bihari Singh, who was the ancestor of Murahu Singh(respondent). It
is further contended that subsequently, it came to knowledge of the
Murahu Singh (respondent) that Rambriksh Singh cancelled the
registered Gift Deed No. 7866 dated 29.11.1976 by executing
registered Deed of Cancellation No. 744 dated 14.02.1977 stating,
therein, that Khatiyani Raiyat, Rambriksh Singh never executed Gift
Deed No. 7866 dated 29.11.1976, rather, it was impersonated. It is
further pleaded in the supplementary affidavit filed by the respondent
and categorically averred that the present respondent is a stranger to
Patna High Court SA No.101 of 2007 dt.26-09-2025
the family of Rambriksh Singh and is even stranger to village-
Mahuar and he never claimed any property of the family of
Rambriksh Singh. The alleged gift deed might have got executed by
impersonating the respondent under conspiracy. The case has been
filed before consolidation authorities as well as in this High Court;
Murahu Singh never preferred any writ case or Letters Patent Appeal
before this Court. The disputed land never came in possession of the
respondent. In paragraph 21 of the reply to the supplementary
affidavit filed in I.A. No. 03 of 2019, it is specifically mentioned that
the respondent do not have any right or share on the aforesaid
disputed land and also do not have anything to do with the property
of others. The disputed land does not belong to him. In future, he will
never sue in any Court related to aforesaid related land and also will
not present any claim before this Court. Lastly, the respondent,
Murahu Singh admitted the right, title and interest and possession of
the appellants, who are heirs of deceased Ramkishun Singh (original
plaintiff), who died during pendency of the present appeal.
16. Considering the submissions made by the parties and
materials on record as well as impugned judgments and the stand
taken by the respondent, who by way of filing affidavit resiled from
his claim, so far, the substantial questions framed with regard to
validity of gift deed dated 29.11.1976 executed by Rambriksh Singh
in favour of Murahu Singh (respondent) is concerned, the property
Patna High Court SA No.101 of 2007 dt.26-09-2025
under gift is admittedly recorded jointly in the name of Rambriksh
Singh and Ramkishun Singh. There is no material to show that the
coparcenary between Rambriksh Singh and Ramkishun Singh had
broken before the said Gift and in absence of any partition or without
the consent of other coparcener, gift of joint property is not
permissible. A gift by a coparcener of his undivided interest without
consent of other coparcener in the joint family property is not valid in
law. It is settled law that a coparcener can make a gift of his
undivided interest in the coparcenary property to the other
coparcener or to a stranger with the consent of all other coparceners
and such a gift would be quite legal and valid but in the present case,
there is no case of any consent having taken from other coparceners.
Both the courts have not gone into the basic question of gift in this
case but only relied upon Exts. D and E, i.e., the order passed by the
consolidation authorities as well as order passed in writ jurisdiction.
The validity of gift deed or cancellation of gift deed has to be
decided in a suit or an appeal. It is apparent from the record that there
is no proof of earlier partition between the two brothers, namely,
Rambriksh Singh and Ramkishun Singh. There is no case of the
defendant/respondent that before execution of the gift deed any
consent was obtained from other coparceners.
17. In such view of the matter, in absence of any consent
before execution of gift deed of the joint family property, the same is
Patna High Court SA No.101 of 2007 dt.26-09-2025
void. The question of law of consent having not been pleaded would
not be accepted in the teeth of judgment of Hon'ble Apex Court in
the case of Gurucharan Singh Vs. Kamla Devi reported in AIR
1977 SC 5, wherein, it has been held that a pure question of law
going to the root of the case and based on undisputed or proved facts
and reason out of common question of the parties could be raised
even at the court of last resort. Moreover, the respondent in the
present case has resiled from his claim before this Court and also
filed affidavit clearly admitting that the property in gift was never in
possession of the respondent-defendant and was not acted upon and
accepted the claim of the plaintiff/appellants. The property, in
question, was joint property of Rambriksh Singh and Ramkishun
Singh. Since Rambriksh Singh died issuelss and his total property
devolved on the plaintiff as the original plaintiff is first cousin of
Rambriksh Singh. Therefore, the courts below have wrongly held
that the gift deed is valid and operative up to the extent of half share
of Rambriksh Singh executed in favour of Murahu Singh
(defendant). There is a catena of decisions of the Apex Court holding
that a gift by a coparcener of his undivided interest in the
coparcenary property is void. Moreover, the defendant/respondent
has resiled from his claim with regard to the suit property. Therefore,
the plaintiff is entitled for the entire property in the suit.
Patna High Court SA No.101 of 2007 dt.26-09-2025
18. In the light of the narrative and discussions (supra),
there can be no doubt that learned courts below have erred and was
not justified in holding that the gift deed is valid and operative to the
extent of half share of Rambriksh Singh and decreed the suit partially
with regard to only half share of the original plaintiff.
19. In the facts and circumstances of the case, the
substantial questions of law formulated are answered in favour of the
plaintiff.
20. This Second Appeal is, thus, allowed having merit in
it.
21. Accordingly, the judgments of the courts below are set
aside and the suit of the plaintiff/appellants stands decreed. The
plaintiff is held to be entitled for the entire suit property.
22. Pending interlocutory applications, if any, shall stand
disposed of.
23. There shall be no order as to costs.
(Khatim Reza, J)
prabhat/-
AFR/NAFR AFR
CAV DATE 05.08.2025
Uploading Date 27.09.2025
Transmission Date N/A
