Patna High Court
Smt. Shanti Devi vs Sri Brij Nandan Sharma on 23 June, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.216 of 2013
======================================================
1.1. Sri Raja Ram Singh @ Raja Ram Sharma son of Late Yamuna Prasad Singh,
husband of Smt Shanti Devi, Resident of Village- Dhanarua, P.O. and P.S.-
Dhanarua, District- Patna.
1.2. Kaushlendra Kumar, son of Raja Ram Singh @ Raja Ram Sharma, Resident
of Village- Dhanarua, P.O. and P.S.- Dhanarua, District- Patna.
1.3. Raghubansh Mani, son of Raja Ram Singh @ Raja Ram Sharma, Resident
of Village- Dhanarua, P.O. and P.S.- Dhanarua, District- Patna.
1.4. Nagmani, son of Raja Ram Singh @ Raja Ram Sharma, Resident of Village-
Dhanarua, P.O. and P.S.- Dhanarua, District- Patna.
1.5. Neelam Kumari, daughter of Raja Ram Singh @ Raja Ram Sharma,
Resident of Village- Dhanarua, P.O. and P.S.- Dhanarua, District- Patna.
... ... Appellant/s
Versus
1.1. Poonam Kumari Daughter of Late Brijnandan Sharma, Wife of Atish
Sharma Resident of Village- Amahara, P.O.- Amahara, P.S.- Bihta, District-
Patna- 801118.
1.2. Punita Kumari Daughter of Late Brijnandan Sharma, Wife of Raju Kumar
Resident of Village- Amahara, P.O.- Amahara, P.S.- Bihta, District- Patna-
801118.
1.3. Sunita Kumari Daughter of Late Brijnandan Sharma, Wife of Mritunjay
Kumar Resident of Village- Mithapur, P.O.- Lai, P.S.- Bihta, District- Patna-
801112.
1.4. Smt. Urmila Devi Wife of Late Brij Nandan Sharma Resident of Village-
Bajanchak, P.S.- Naubatpur, P.O.- Piplawama, District- Patna, Pin- 801109.
2.1. Saroj Devi Wife of Late Surya Nandan Sharma Resident of Village-
Bajanchak, P.S.- Naubatpur, District- Patna.
2.2. Rupam Kumar Daughter of Late Surya Nandan Sharma, Wife of Raj Kumar
Resident of Berhana, P.S.- Barh, District- Patna.
2.3. Soni Kumari Daughter of Surya Nandan Sharma, Wife of Binayak Kumar
Resident of Bihta, P.S.- Bihta, District- Patna.
3. Deepu Son of Brij Nandan Sharma Resident of Village- Bajan Chak, P.O.-
Piplawan, P.S.- Naubatpur, District- Patna.
4. Dinu @ Kaju Son of Brij Nandan Sharma Resident of Village- Bajan Chak,
P.O.- Piplawan, P.S.- Naubatpur, District- Patna.
5. Puttu @ Ankit Kumar, S/o Surya Nandan Sharma Resident of Village- Bajan
Chak, P.O.- Piplawan, P.S.- Naubatpur, District- Patna.
6. Satish Kumar @ Raju Son of Late Chandrakanti Devi Wife of Hirdaya
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Narayan Singh D/o Net Narayan Prasad Singh Resident of Village- Tineri,
P.S.- Masaurhi, District- Patna.
7. Rabi Kumar Son of Late Chandrakanti Devi Wife of Hirdaya Narayan Singh
D/o Net Narayan Prasad Singh Resident of Village- Tineri, P.S.- Masaurhi,
District- Patna.
8. Chit Ranjan Kumar Son of Late Chandrakanti Devi Wife of Hirdaya
Narayan Singh D/o Net Narayan Prasad Singh Resident of Village- Tineri,
P.S.- Masaurhi, District- Patna.
9. Smt. Surja Kanti Devi Wife of Sheopujan Singh, D/o Late Net Narayan
Prasad Singh, Resident of Village- Lari, P.S.- Kurtha, District- Arwal.
10. Shambhu Kumar Son of Late Mahendra Kumar Village- Dhibri, P.O.-
Patiyawan, P.S.- Sakurabad, Distt.- Jehanabad
11. Sarvesh Kumar Son of Late Mahendra Kumar, Village- Dhibri, P.O.-
Patiyawan, P.S.- Sakurabad, Distt.- Jehanabad.
12. Mala Devi wife of Sri Birendra Sharma, D/o Late Hiramani Devi, resident of
Village- Karsan, P.S.- Feshar, District- Aurangabad.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Jitendra Kishore Verma, Advocate
Mr. Shreyansh Goyal, Advocate
Mr. Neelam Kumari, Advocate
For the Respondent/s : Mr. S.N.P. Singh, Sr. Advocate
Mr. Gaurav Kumar, Advocate
Mr. Pramod Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL JUDGMENT
Date : 23-06-2025
Heard Mr. Jitendra Kishore Verma, learned counsel
for the appellants and Mr. S.N.P. Singh, learned senior counsel for
the respondents.
2. This Second Appeal has been filed against the
judgment and decree dated 29.04.2013 passed by the learned
Additional District Judge- II, Danapur, Patna in Title Appeal No.
17 of 2009 whereby the learned lower Appellate Court reversed
the judgement and decree dated 20.01.2009 passed by the learned
Munsif, Danapur, Patna in Title Partition Suit No. 143 of 1989.
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3. The plaintiff-appellant filed Partition Suit No. 143 of
1989 for challenging the gift deed dated 24/25-09-1986 executed
by her father in favour of his two nephews (brother's sons)
alleging it to be fraudulent, fabricated, void ab initio and not
binding upon her. Accordingly, she prayed for a declaration to that
effect and sought partition of her half share in Schedule II
property.
4. The case of the plaintiff is that one Basudev Singh
was the common ancestor of the parties having three sons namely,
Shiv Nandan Singh, Shyam Nandan Singh and Ram Lakhan
Singh. Shiv Nandan Singh had two sons namely, Ram Naresh
Prasad Singh (father of the plaintiff and donor of the gift deed) and
Net Narayan Prasad Singh as well as a daughter, Hiramani Devi
(intervenor-defendant).
5. It is further case of the plaintiff that, Shyam Nandan
Singh, the second son (whose wife pre-deceased him) died
issueless and Ram Lakhan Singh separated from the family in the
year 1943 by way of partial partition meaning thereby separating
his share from the branch of Shiv Nandan Singh. The said partition
was made branch-wise. While Ram Lakhan Singh took his share
and the branch of Shiv Nandan Singh as a whole got separated
from the branch of Ram Lakhan Singh. However, the two sons and
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a daughter of Shiv Nandan Singh remained in jointness and there
was no partition between them, as such, the dispute is amongst the
branch of Shiv Nandan Singh inter se. At the time of partial
partion in the year 1943, the remaining joint family consisted of
Ram Naresh Prasad Singh and Net Narayan Prasad Singh as
coparceners with the latter as Karta. Both brothers had half
undivided share in the joint family property. It is further contended
that these two brothers had also a full sister, Hiramani Devi, who
was later impleaded as intervenor-defendant.
6. Further case of the plaintiff is that during the jointness
of Ram Naresh Prasad Singh and Net Narayan Prasad Singh, her
father Ram Naresh Prasad Singh purportedly executed a gift deed
dated 24/25-09-1986 in favour of Brij Nandan Sharma (defendant
no. 2) and Surya Nandan Sharma (defendant no. 3) who are sons
of Net Narayan Prasad Singh (defendant no. 1). The Schedule II
property being joint family property was gifted by claiming it to be
the personal share of Ram Naresh Prasad Singh although no
partition had taken place between the two brothers. It has been
further pleaded in the plaint that there was no partition in the joint
family of Ram Naresh Prasad Singh and Net Narayan Prasad
Singh. Therefore, the gift deed executed by the father of the
plaintiff is void ab initio and is also forged and fabricated as at the
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time of execution of the gift deed, the donor was suffering from
paralysis and also that he was not competent to understand the
nature and purport of the gift, on the said account the gift is void.
7. On summons, defendant nos. 1, 2 & 3 filed their
written statement. The defendant nos. 2 and 3 are donees of the
said gift deed whereas defendant no. 1 is the father of the
defendant no. 2 and 3. Apart from ornamental objection with
regard to maintainability of the suit, it was further contended that
there was no unity of title and possession between the plaintiffs
and defendants and that Net Narayan Prasad Singh was not the
'Karta' of the said family rather plaintiff's father Ram Naresh
Prasad Singh was the 'karta' of the family till he was alive.
8. It is further pleaded that when the gift was executed,
the donor was not suffering from paralysis and was fully
competent to execute the gift deed. It has been further contended
that gift deed was validly executed and cannot be declared void
and that the plaintiff having been completely ousted from the joint
family has no share in the property. Defendant nos. 4 to 6 being
minor sons of defendant nos. 2 and 3 were being represented by
their respective fathers as guardian and they also filed written
statement supporting the case of defendant nos. 1, 2 and 3 in their
written statements.
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9. The intervenor-defendant namely, Hiramani Devi
(plaintiff's aunt/Fua) was impleaded in the suit as intervenor-
defendant and she also filed separate written statement. The
intervenor-defendant pleaded that her father Shiv Nandan Singh
died leaving behind his widow, Jhalka Kuar, who died in the year
1990 i.e. after enforcement of Hindu Succession Act, 1956. Thus,
her mother was alive when her elder brother Ram Naresh Prasad
Singh (father of the plaintiff) made the gift in the year 1986 and he
died on 03.05.1989. In such circumstances, her mother also
inherited properties and the intervenor-defendant was also entitled
to a share along with her two brothers in the estate of her parents
separately when her father predeceased her mother limited estate
in the property become absolute and accordingly after her death,
her property would devolve upon her three children including the
intervenor-defendant. It is further contended that the property in
the branch of Shiv Nandan Singh was joint and was never
partitioned and Ram Naresh Prasad Singh was the Karta of the
family. The intervenor-defendant made allegation against plaintiffs
and defendants of colluding with each other and not making these
intervenor-defendant party as she claimed 1/3 share and challenge
the claim of half share each by plaintiffs and defendants. It is also
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contended that if the properties are divided, she is also entitled to
get her share.
10. The learned Trail Court on analyzing the evidences
and materials on record has held that Ram Naresh Prasad Singh
and Net Narayan Prasad Singh had half share each in the joint
family property and till his death Ram Naresh Prasad Singh
remained in jointness with his brother and has further held that
there is a clear evidence that Ram Naresh Prasad Singh and Net
Narayan Prasad Singh were member of a joint family on the date
of execution of gift deed as well as on the date of death of Ram
Naresh Prasad Singh. The family was joint, therefore, the gift of
joint property executed by Ram Naresh Prasad Singh is void in
view of the law laid down in the case of Thamma Venkata
Subbamma (Dead) by L.R V. Thamma Rattamma and Others
reported in AIR 1987 SC 1775. This issue is decided in favour of
plaintiff and against the defendant and further held that plaintiff
has right, title and possession over the disputed property and the
plaintiff is the daughter of Ram Naresh Prasad Singh and she
belong to Class I heir and has full right in the property. Plaintiff is
the sole heir of Ram Naresh Prasad Singh. After the death of Ram
Naresh Prasad Singh, she is entitled as per Section 6 of the Hindu
Succession Act, 1956, and according to that Ram Naresh Prasad
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Singh acquired 4/9 share in the joint family property so the
plaintiff will get 4/9th share in the disputed property. Since the
property was joint, the intervenor-defendant, who is the full sister
of Ram Naresh Prasad Singh and Net Narayan Prasad Singh is also
entitled to 1/9th share in the disputed property. Defendant no. 1,
Net Narayan Prasad Singh has also 4/9th share in the suit property.
Accordingly, the suit was decreed in favour of the plaintiff with
regard to 4/9th share in the suit property and further office was
directed to prepare preliminary decree.
11. Being aggrieved by the judgement and decree of
Trial court, the original defendant nos. 1, 2, 3 and others filed Title
Appeal No. 17 of 2009 which was allowed vide judgement and
decree dated 29.04.2013. The Appellate Court reversed the
decision of Trial Court and held that Shanti Devi (plaintiff) was
not a coparcener at the time of execution of alleged deed of gift till
challenging the same because daughter has been made coparcener
in the month of December, 2005 and any transfer made by one of
the coparcener can be challenged by coparcener only and plaintiff
was not a coparcener in the property so she has no right for
declaration of alleged deed of gift as null and void. The issue
relates to unity of title and possession and plaintiff Shanti Devi has
admitted that defendants are in possession over the disputed
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property on the basis of gift deed and their names have been
entered in the revenue records and the defendants became legal
owner hence there is no unity of title and possession. The
plaintiff's witnesses did not disclose that plaintiff's father was
suffering from paralysis. Plaintiff has not filed any chit of medical
paper to show that her father was actually suffering from paralytic
ailment. From the entire evidence of the plaintiff, it is established
and proved that Ram Naresh Prasad Singh never suffered from
acute paralytic disease rather the entire evidence of defendant
shows that Ram Naresh Prasad Singh executed the alleged deed of
gift in the year 1986 in sound state of mind and health.
12. The learned Appellate Court further held that on the
basis of evidence adduced on behalf of the plaintiff, it could not be
proved that any fraud was played by the defendants during
execution of the alleged deed of gift. From the whole discussion, it
is proved that the alleged Deed of gift was executed by Ram
Naresh Prasad Singh in sound state of mind and health in favour of
the defendants. It was further held by the learned lower Appellate
court that it is an admitted case of the parties that in the year 1943,
the son of Basudev Singh, namely Ram Lakhan Singh got
separated from the sons of Shiv Nandan Singh. This indicates that
the coparcenary in the family of the late Basudev Singh was
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broken in the year 1943. After the break in the coparcenary, the
sons of Ram Naresh Prasad Singh and the family of Net Narayan
Prasad Singh lived jointly, but no coparcenary existed between
them. The plaintiff's case is not about reunion. Accordingly, it was
held that after the break of coparcenary status in the year 1943,
Ram Naresh Prasad Singh and Net Narayan Prasad Singh lived
jointly but were not coparceners although they carried out
agricultural work jointly.
13. Regarding the consent of the coparcener for making
a gift of the share of the plaintiff's father, Ram Naresh Prasad
Singh, who executed a gift deed in favour of the sons of Net
Narayan Prasad Singh, it appears that Net Narayan Prasad Singh
filed written statement stating that Ram Naresh Prasad Singh had
executed gift deed and it shows that implied consent was given by
Net Narayan Prasad Singh to Ram Naresh Prasad Singh for the
execution of the alleged deed of gift in favour of his sons.
14. After above finding, learned Appellate Court further
held that sons of Shanti Devi (plaintiff) was not a coparcener at the
time of alleged deed of gift till challenging the same hence, she
has no right to file the suit for declaration that alleged deed of gift
is null and void. Hence, on this score also, the plaintiff is not
entitled to get any relief for cancellation of aforesaid deed of gift.
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15. It is further observed by the learned lower Appellate
Court that the plaintiff has sought the relief of partition after
declaring her title over the suit property and also for declaration
that alleged deed of gift dated 24/25-09-1986 is forged, fabricated,
void ab initio and not binding upon the plaintiff. It shows that the
plaintiff wants relief for declaration of her title over the suit land
and partition of the property and also for declaration that the
alleged deed of gift is void. It means that in the garb of partition
suit the plaintiff wants declaration of title over the disputed land
hence she has to pay ad valorem court fees on the market value of
the suit property. Accordingly, it was held that the plaintiff is not
entitled to get any relief claimed for and consequently, set aside
the judgment and decree dated 20.01.2009 passed by the Trial
Court and accordingly dismissed the suit of the plaintiff. The
appeal of the defendants was allowed with cost.
16. Against the said judgment and decree, original
plaintiff (heirs of original plaintiffs were substituted vide order
dated 14.02.2023) preferred Second Appeal which was admitted
on 30.03.2015 and the following substantial questions of law were
framed:-
I. Whether the appellate court below,
while reversing the judgment of the trial court,
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has rightly held that the gift by coparcener of
his undivided interest in the joint family
property would be valid even when the consent
of all the coparceners has not been specifically
obtained?
II. Whether the appellate court below
has rightly interpreted the decision of the Apex
Court in the case of Thamma Venkata
Subbamma v. Thamma Rattamma (AIR 1987
SC 1775) (wrongly typed as AIR 1997 SC
1775)?
17. Mr. Jitendra Kishore Verma, assisted by Mr.
Shreyansh Goyal, learned counsel for the plaintiff-appellants
submitted that both the substantial questions of law are inter-
related and as such both are being dealt together. It is submitted
that the suit property was part of joint family property when the
deed of gift was executed by the plaintiff's father in favour of
defendant nos. 2 and 3, which is evident and stands admitted from
materials available on record especially in paragraph 8 of the
written statement of defendant nos. 1, 2 and 3. D.W. 1 (defendant
no. 3/ donee) has admitted in his cross examination that the family
was joint. Similarly, D.W. 2 (defendant no. 2/donee) has also
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admitted in his examination-in-chief that no partition was effected
in the family. The evidence of D.W. 7 has admitted that the family
of Ram Naresh Prasad Singh and Net Narayan Prasad Singh was
joint and continued as such, till death of Ram Naresh Prasad
Singh. D.W. 5 also admitted that family was joint till 1994.
18. It is further submitted that defendant nos. 1, 2 and 3
have admitted in their joint written statement that Ram Naresh
Prasad Singh was looking after the entire affairs of the family and
its properties and he remained Karta of the family. This statement
is direct admission that family was joint at the time of execution of
gift deed. It is also submitted that admission in pleading or judicial
admission admissible under Section 58 of the Evidence Act, made
by the parties, stand on a higher footing than evidentiary
admission. The former class of admission are fully binding on the
party that makes them and constitute a waiver of proof. They by
themselves can be made the foundation of the rights of the parties.
Reliance has been placed in the case of Nagindas Ramdas V.
Dalpatram Iccharam alias Brijram and others reported in AIR
1974 SC 471 (para 26). In view of aforesaid settled law, the
learned Trial Court has rightly held that it has been proved by
evidence that Ram Naresh Prasad Singh and Net Narayan Prasad
Singh had half share each in the joint family property and till the
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death of Ram Naresh Prasad Singh, he remained in jointness with
his brother and has further rightly held that there is a clear
evidence that Ram Naresh Prasad Singh and Net Narayan Prasad
Singh were members of a joint family at the time of execution of
gift deed as well as on the date of death of Ram Naresh Prasad
Singh, he was a member of joint family. Therefore, the gift of joint
property executed by him is void as per law laid down in the case
of Thamma Venkata Subbamma (Dead) by L.R V. Thamma
Rattamma and Others (Supra). However, this finding of facts
were not reversed by the Appellate Court by reasoned finding in
teeth of Order 41 Rule 31 of the Code of Civil Procedure, 1908.
19. Learned counsel for the appellants further submitted
that gift of undivided share in joint family property is void in the
eyes of law. Section 122 of the Transfer of Property Act defines
'Gift' as transfer of certain existing movable or immovable
property made 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 the Mulla's Hindu Law which denotes that no
coparcener can dispose of his undivided interest in the coparcenary
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property by gift. The coparcener may, however, make a gift of his
interest without interest of other coparcener. The said proposition
of law that gift of undivided interest in Hindu undivided family is
(HUF) void has been recognized in the decisions of Thamma
Venkata Subbamma (Dead) by L.R V. Thamma Rattamma and
Others (Supra), Smt. Subhamati Devi & Ors. V. Awadhesh
Kumar Singh & Ors. reported in 2014(1) PLJR 332 (para 12, 13
& 18) and Most. Sumitra Devi and another V. Most. Numu
Devi and others reported in 2015 (3) PLJR 579.
20. Learned counsel for the appellants vehemently
submitted that the learned Appellate Court has erroneously made
out a third case that the family got partitioned in the year 1943
itself when Ram Naresh Prasad Singh separated from the family
which has neither been pleaded by defendants nor has come in
evidence. There is no material available on record to suggest that
complete partition was effected in the year 1943 whereby Ram
Naresh Prasad Singh and Net Narayan Prasad Singh had also got
their separate shares by meets and bounds. On the contrary, it has
been admitted by the parties that families of Shiv Nandan Singh
consisting of Ram Naresh Prasad Singh, Net Narayan Prasad
Singh and others continued to remain in jointness and was joint till
Ram Naresh Prasad Singh died in the year 1989. It is submitted
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that they were joint at the time of execution of gift deed dated
24/25-09-1986
and both the parties admitted that family had a
Karta in as much as the plaintiff alleged Net Narayan Prasad
Singh to be Karta whereas defendant alleged Ram Naresh Prasad
Singh to be Karta. The finding noted in paragraph 22 of the
Appellate Court judgment that ‘It is admitted case of the parties
that in the year 1943, the sons of Basudev Singh namely, Ram
Lakhan Singh become separate from the sons of Shiv Nandan
Prasad Singh, it means that in the year 1943, coparcenory was
broken in the family of Basudev Singh.’ is not only wrong but is
also based on an incorrect proposition that both parties have
admitted that complete partition was affected in the family in the
year 1943. It is further contended that there was complete partition
in the year 1943 is absolutely incorrect and error of record and the
decision of Trial Court that the family was joint at the time of
execution of gift deed is correct.
21. Learned counsel for the appellants further submitted
that the partition of joint family cannot be presumed in the manner
in which learned lower Appellate Court has presumed it. In this
regard, reliance has been placed in the case of Smt. Subhamati
Devi & Ors. V. Awadhesh Kumar Singh & Ors. (supra) and
others, wherein, while hearing challenge to gift deed of joint
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family property, it was held that allegation of separation even if, it
is accepted to be true cannot be sufficient to disrupt the joint status
of family which can be disrupted only on partition by meets and
bounds and the different coparcener coming in exclusive
possession of their share. In a Hindu undivided family, the
partition is complete only when the title over the joint family
property which is vested in the coparcenary is transferred to the
different titles of the sharers after allotment of their shares and
putting them in exclusive possession of the same. In this view of
the matter, the learned Appellate Court’s finding that joint family
status of the family had disrupted is not sustainable and is contrary
to the settled law. It is submitted that the prior specific consent of
co-sharers is mandatory to validate the gift. The consent of
coparcener is looked into in correct perspective in the decision of
Hon’ble Apex Court in the case of Thamma Venkata Subbamma
(Dead) by L.R V. Thamma Rattamma and Others (supra).
22. Learned Trial Court relied upon the decision in
Thamma Venkata Subbamma (Dead) by L.R V. Thamma
Rattamma and Others (supra) for the settled principle that gift of
undivided share in the joint family property is void whereas
learned Appellate Court completely mis-applied the facts of that
case to the present case and also misinterpreted that concept of
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‘renunciation’ to reach the erroneous conclusion with consent in
the present case was impliedly given after the present suit was
filed which validates the gift without their being pleading with
respect thereto. In the aforesaid case of the Hon’ble Apex Court,
an issueless coparcener gifted his undivided share to his brother in
a family which consisted only of the donor, his brother (donee)
and donee’s sons and daughters. As such the gift enured to the
benefit of all and nobody’s share got depleted or prejudiced. It was
found that the so-called gift was intact as renunciation and not a
gift as it benefited all members of the family equally and as a
single body compromising joint family. It is further submitted that
renunciation occurs when a person relinquishes his share in a
manner as if it was never his share and accordingly, said share
becomes part of the common pool and each co-sharer is equally
benefited by it. However, learned Appellate Court below failed to
consider that in the present case due to the gift, plaintiff has been
deprived of her lawful share, as a result whereof, one co-sharer has
been prejudiced and others benefited and therefore it cannot be a
renunciation. The full brother of the donor namely, Net Narayan
Prasad Singh was alive and he was admittedly a coparcener but
nowhere it is pleaded in the entire written statement that he
consented to the gift. Further, the full sister Hiramani Devi being
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the interevenor-defendant was also a co-sharer but nowhere her
consent for the gift was either pleaded or proved.
23. The Appellate Court assumed consent from the
subsequent conduct of the parties after the gift and not at the time
of gift. Prior consent is required in view of the aforesaid decision.
The Appellate Court also accepted the said principle but
unsuccessfully tried to assume consent of Net Narayan Prasad
Singh and has failed to even consider existence of consent or
otherwise of mother of donor and sister of donor, who were alive
being Class I heirs and being entitled to succeed in view of Hindu
Succession Act, 1956, especially when the family of branch of
Shiv Nandan Singh admittedly remained in jointness.
24. Reliance has been placed in the case of Thimmaiah
& Ors. v. Ningamma & Anr reported in (2000) 7 SCC 409 in
which a gift deed executed by a person gifting undivided family
share in property was challenged by sons (only coparcener) who
infact had given prior and specific consent to the gift in the gift
deed itself, on the ground that prior consent of donor, Class I heirs
being the second widow and her 3 daughters as well as a daughter
from first pre-deceased wife was not taken before execution of gift
deed. The Hon’ble Apex Court held that in view of proviso to
Section 6 of the Hindu Succession Act, 1956, interest of deceased
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coparcener does not devolve by survivorship rather by succession
and therefore, the interest of survivor coparcener in deceased
coparcener share no longer survives and his consent to depletion of
his interest would not make a gift of coparcenary interest
otherwise invalid, valid. Therefore, the requirement of consent in
such a case would have to be upon from all persons who can claim
a share in the deceased coparcener’s share.
25. Further, the consent of the mother of the donor who
was alive till 1990 as per the case of the intervenor-defendant was
also necessary being Class I heir but the same was not there so
also the consent of intervenor-defendant being daughter of Shiv
Nandan Prasad Singh and full sister of the donor was also required
which was not taken. Mere gift of one of the coparceners does not
bring the coparcenary to an end and the remaining properties
continue to be joint to be partitioned amongst the coparceners on
the date of partition and the Trial Court rightly decreed the suit and
ordered for partition.
26. Learned counsel for the appellants further submitted
that the learned lower Appellate Court wrongly held the gift to be
valid. The question of lack of consent before execution of the gift
deed is a pure question of law in view of the law laid down in the
case of Tarini Kamal Pandit and others vs. Prafulla Kumar
Patna High Court SA No.216 of 2013 dt.23-06-2025
21/33
Chatterjee (Dead) by Legal Representatives reported in (1979)
3 SCC 280, Gurucharan Singh vs. Kamla Singh and others
reported in (1976) 2 SCC 152 and Yeswant Deorao Deshmukh
vs. Walchand Ramchand Kothari reported in (1950) SCC 766. It
is also submitted that the burden of proving that prior and specific
consent was obtained before execution of gift deed is on the
defendant which they failed to even plead much less proof.
Learned lower Appellate Court has made out a third case in favour
of the defendants by concluding that Net Narayan Prasad Singh
impliedly given his consent to the gift despite there was absolutely
no pleading by the defendants that there was prior consent of all
the coparceners/co-sharers before the gift including the consent of
Net Narayan Prasad Singh. Reliance has been place in the case of
Union of India vs. Ibrahim Uddin and Another reported in
(2012) 8 SCC 148 and Maqbool Hussain v. State of Bombay
reported in AIR 1953 SC 325.
27. It is further submitted that the question of lack of
consent having not been pleaded could not be accepted in the teeth
of judgment of Hon’ble Apex Court in the case of Gurucharan
Singh vs. Kamala Singh and others reported in AIR 1977 SC 5
wherein it was 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
Patna High Court SA No.216 of 2013 dt.23-06-2025
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common case of the parties could be raised even at the Court of
last resort. In the aforesaid facts and settled principle of law laid
down by the Hon’ble Apex court, the judgment and decree of the
learned lower Appellate Court is not sustainable and liable to be
set aside and the suit is fit to be decreed.
28. Mr. S.N.P. Singh, learned senior counsel appearing
on behalf of the respondents answered the question with regard to
transaction (deed of gift) without the consent of other members of
coparcenary that the deed of gift was executed by Ram Naresh
Prasad Singh in favour of defendant nos. 2 and 3 which is under
challenge in the present appeal cannot be challenged by anyone
other than the coparceners. Obviously, no coparceners, who were
in family at the date of gift i.e. 25.09.1986, has challenged the
present gift. The plaintiff was not a coparcener at the date of gift or
on the date of filing of the suit. Reliance has been placed in the
case of Jagdish Tiwary and others vs. Lalita Kuer and others
reported in 2011(1) BBCJ 633. The question whether the consent
of coparcener was not obtained before the execution of gift deed
dated 25.09.1986 has not been specifically pleaded anywhere in
the plaint and only raised objection at the time of argument. The
learned counsel for the appellants has tried to show that the plea
Patna High Court SA No.216 of 2013 dt.23-06-2025
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was taken and the deed of gift under challenge was void as such
same was obtained by fraud and impersonation.
29. Learned senior counsel further submitted that the
plea has not been taken anywhere in the plaint by the plaintiff that
the deed of gift was not executed after obtaining prior consent of
the coparcener. It is well settled law that no evidence can be given
and considered by the courts with regard to a fact which has not
been pleaded in the plaint. This question was decided in AIR 1953
SC 132. It has been settled in the case of Shivaji Balaram
Haibatti vs. Avinash Maruthi Pawar reported in 2018 (11) SCC
652 by the Hon’ble Apex Court that ‘It is a settled principle that
the parties to the suit cannot travel beyond the pleadings so also
the court cannot record any finding on the issues which are not
part of pleadings. In other words, the court has to record the
findings only on the issues which are part of the pleadings on
which parties are contesting the case. Any finding recorded on an
issue dehors the pleadings is without jurisdiction’.
30. It is further submitted that the coparcenary between
the family of Basudev Singh had broken in September, 1943 by
way of partition between Ram Lakhan Singh on the one hand (8
aana share) and sons of Shivnandan Singh i.e. Ram Naresh Prasad
Singh and Net Narayan Prasad Singh (defendant no. 1) on the
Patna High Court SA No.216 of 2013 dt.23-06-2025
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other hand therefore, the share of Ram Naresh Prasad Singh and
Net Narayan Prasad Singh was also separated on that very date.
Hence, it was a complete partition between Ram Naresh Prasad
Singh and Net Narayan Prasad Singh.
31. Learned senior counsel further submitted that Ram
Naresh Prasad Singh and Net Narayan Prasad Singh were not
members of joint family they were at best tenants in common.
Reliance has been placed in the case of Kalyani (Dead) by LRS.
V. Narayanan and others reported in 1980 Supp SCC 298. It is
further submitted that statements of P.W. 1 and P.W. 2 in their
evidence have been relied by the learned counsel for the appellants
stating that the family was joint. In fact, they were living jointly as
tenants in common.
32. Learned senior counsel for the respondents
submitted that the daughter, who got a right of coparcenary by
Hindu Succession (Amendment) Act, 2005, cannot challenge deed
of gift executed before 20.12.2004. The question of law as framed
is not at all applicable in the present case hence, it does not help
the appellant in anyway. The learned Appellate Court has rightly
interpreted the decision of the Hon’ble Apex court in the case of
Thamma Venkata Subbamma (Dead) by L.R V. Thamma
Rattamma and Others (supra). Learned senior counsel for the
Patna High Court SA No.216 of 2013 dt.23-06-2025
25/33
respondent admitted the genealogical table. Shiv Nandan Prasad
Singh died in the year 1930. In any case, before September 1943
which is an admitted date of partition between Ram Lakhan Singh
(son of Basudev Singh) on one hand and Ram Naresh Prasad
Singh and Net Narayan Prasad Singh (both sons of Shiv Nandan
Singh) on the other hand. This fact has been asserted by the
plaintiff-appellant in her plaint. It is also stated in paragraph 7 and
8 that 8 Anna share was allotted to Ram Naresh Prasad Singh and
Net Narayan Prasad Singh (both sons of Shiv Nandan Singh). It is
admitted fact that no share was allotted in the said partition of
September, 1943 to Hiramani Devi, daughter of Shiv Nandan
Prasad Singh. The plaintiff has never stated in plaint that Hiramani
Devi was entitled to get any share in the property. The partition
was held in September 1943 and Shiv Nandan Singh, father of
Hiramani Devi had died in the year 1930 i.e. long before the
enactment of Hindu Succession Act, 1956 therefore she was
neither entitled to any share nor she was coparcener of the family.
So far the question of consent of Net Narayan Prasad Singh (father
of donee) is concerned, the learned Appellate Court has rightly
held that Net Narayan Prasad Singh (defendant no. 1) has filed his
written statement and has never objected any such gift rather he
has admitted the same. Hence, his consent was already there.
Patna High Court SA No.216 of 2013 dt.23-06-2025
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33. Learned senior counsel further submitted that
plaintiff had no birth right on the said date to gift and she was not a
coparcener even on the date of filing of the suit. She has attained
the status of coparcener only after enactment of Hindu Succession
(Amendment) Act, 2005. According to Section 6 proviso, plaintiff
cannot challenge any gift executed in 1986 by her father on the
ground that she was a coparcener.
34. According to Section 6(1) proviso of Hindu
Succession Act, transaction before 20.12.2004 has no effect. The
suit is not maintainable therefore no case of coparcenary arises. At
best, both are tenants in common. The first question of law is not
at all applicable in the present case. So far the second substantial
question of law is concerned, the law has been rightly interpreted
by the learned Appellate Court.
35. Considering the submissions made on behalf of the
parties and upon perusal of the impugned judgement as well as
substantial questions of law having been framed by this Court in
this appeal, it appears that it is admitted case of the parties that one
son of Basudev Singh namely, Ram Lakhan Singh separated in the
year 1943 from two sons and a daughter of Shiv Nandan Singh
(full brother of Ram Lakhan Singh). The two sons and a daughter
of Shiv Nandan Singh remained joint. There is a general
Patna High Court SA No.216 of 2013 dt.23-06-2025
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presumption that a Mitakshara family is presumed in law to be a
joint family until it is proved that the members have separated. A
member of such a joint family can separate himself from the other
members of the joint family and is on separation entitled to have
his share in the property of the joint family ascertained and
partitioned off for him; and that the remaining coparceners,
without any special agreement amongst themselves, may continue
to be coparceners and to enjoy as members of a joint family what
remained after such a partition of the family property. This
principle has been settled in the case of Palani Ammal vs.
Muthuvenkatachala Moniagar reported in AIR 1925 PC 49. In
the present case, one son of Basudev Singh separated in the year
1943 and two grand sons of Basudev Singh remained joint i.e.
Ram Naresh Prasad Singh and Net Narayan Prasad Singh (both
sons of Shiv Nandan Singh son of Basudev Singh). The stand
taken in written statement of defendant nos. 1, 2 & 3 and also
D.W. 1 (defendant no. 3/donee) has admitted in his cross-
examination that no partition was effected in the family. It is
apparent from the evidence of D.W. 7 that he has admitted that the
family of Ram Naresh Prasad Singh and Net Narayan Prasad
Singh was joint and continued as such, till death of Ram Naresh
Prasad Singh. D.W. 5 also admitted that family was joint till 1994.
Patna High Court SA No.216 of 2013 dt.23-06-2025
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Defendant nos. 1, 2 and 3 have admitted in para 8 of their joint
written statement that Ram Naresh Prasad Singh looked after the
entire affairs of the family and its properties and he remained
Karta of the family. This pleading is an admission that family was
joint at the time of execution of gift deed. It is specifically
admitted by the defendant that the family had a Karta in as much
as the plaintiff-appellant alleged that Net Narayan Prasad Singh to
be the Karta whereas defendant alleged Ram Naresh Prasad Singh
to be karta.
36. On a careful consideration of the facts and
circumstances and the law discussed hereinabove, this Court finds
that Ram Lakhan Singh separated in the year 1943 and two sons
and a daughter of Shiv Nandan Singh remained joint till the death
of Ram Naresh Prasad Singh. Therefore, after separation of Ram
Lakhan Singh, the remaining property of the family remained joint
between both the sons of Shiv Nandan Singh and a daughter,
Hiramani Devi. There is no material on record to show that both
the sons separated, partitioned before execution of alleged deed of
gift, which is under challenge.
37. So far question whether a gift by a coparcener of his
undivided interest in the joint family property is valid or not, it is
settled law that a coparcener can make a gift of his undivided
Patna High Court SA No.216 of 2013 dt.23-06-2025
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interest in the coparcenary property to other coparcener or to a
stranger with the consent of all other coparceners. Such a gift
would be quite legal and valid but in the present case there is no
case of the defendants that the prior consent of other coparcener
was taken while the learned lower Appellate Court made out a
third case that the family got partitioned in the year 1943 itself
when Ram Naresh Prasad Singh separated from the family which
has neither been pleaded by the defendants nor has come in
evidence. The learned Appellate Court has also made out a third
case in favour of the defendants by concluding that Net Narayan
Prasad Singh filed written statement in the suit and stated therein
that Ram Naresh Prasad Singh executed a gift deed in favour of his
sons. The learned Appellate Court presumed that implied consent
was given by Net Narayan Prasad Singh to Ram Naresh Prasad
Singh for execution of alleged deed of gift in favour of his sons.
There was absolutely no pleading by the defendants that there was
prior consent of all the coparceners/co-sharers before the gift
including the consent of Net Narayan Prasad Singh. Consent factor
was not pleaded in their written statement. No party can be
permitted to travel beyond its pleading and that all necessary and
material facts should be pleaded by the parties in support of the
case set up by it. A decision of a case cannot be passed beside the
Patna High Court SA No.216 of 2013 dt.23-06-2025
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pleadings of the parties. This view has been taken in the case of
Union of India vs. Ibrahim Uddin and Another (supra).
38. In view of the above, this court is of the considered
opinion that the lower Appellate Court dealt with the case in an
unwarranted manner giving go bye to the settled principle of law.
So far question of interpretation of the decision of the Hon’ble
Apex Court in the case of Thamma Venkata Subbamma (Dead)
by L.R V. Thamma Rattamma and Others (supra) is concerned,
the settled principle is that a gift by a coparcener of his undivided
interest in the coparcener property is void whereas the learned
Appellate Court misapplied the facts of that case to the present
case. The fact of the case of Thamma Venkata Subbamma
(Dead) by L.R V. Thamma Rattamma and Others (supra) is that
two brother & sons and daughters of one of them constituted a
joint Hindu family governed by Mitakshara School in Hindu law,
one of the brothers executed deed of settlement in favour of his
brother, conveying his entire undivided interest in the coparcenary
but reserving a life interest to himself and also providing that after
his death the other coparcener should maintain his wife. In that
case the Apex Court has held that although the gift is ostensibly in
favour of brother, but really the donor meant to relinquish his
interest in the coparcenany in favour of brother and his sons.
Patna High Court SA No.216 of 2013 dt.23-06-2025
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Assuming that it is a renunciation in favour of one of the
coparceners, namely, brother, such renunciation enures for the
benefit of all other coparceners and not for the sole benefit of the
coparcener in whose favour the renunciation was made. The gift
should be construed as renunciation of his undivided interest in the
coparcenary in favour of the brother and his sons who were the
remaining coparceners. The gift was, therefore, valid construing
the same as renunciation or relinquishment by donor of his interest
in the coparcenary and, accordingly, the consent of other
coparceners was immaterial. The Appellate Court completely
misapplied the facts of that case to the present case.
39. In the aforesaid case, an issueless coparcener gifted
his undivided share to his brother in a family which consisted only
of the donor, his brother (donee) and donee’s sons and daughters,
as such, the gift enured to the benefit of all and nobody’s share got
depleted or prejudice. It was found that the so-called gift was
infact a renunciation and not a gift as it benefited all members of
the family equally. The learned Appellate Court below failed to
consider that in the present case, the plaintiff has been deprived of
her lawful share due to the gift. Therefore, one co-sharer has been
prejudiced and others benefited. It cannot be said to be a
renunciation. At the time of gift, full brother of the donor namely,
Patna High Court SA No.216 of 2013 dt.23-06-2025
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Net Narayan Prasad Singh was alive and he was admittedly a
coparcener but nowhere it is pleaded in the entire written statement
that he consented to the gift. Further, intervenor-defendant was
also a co-sharer but nowhere her consent was either pleaded or
proved. Therefore, the learned Appellate Court wrongly interpreted
or applied the principle whereas the fact of both the cases are
different. There is a catena of decision of the Hon’ble Apex Court
holding that a gift by coparcener of his undivided interest in the
coparcenary property is void.
40. In the light of the narrative and discussion made
hereinabove, there can be no doubt that the learned lower
Appellate Court erred and was not justified in dismissing the suit
of the plaintiff.
41. In the facts and circumstances of the case, the
substantial questions of law formulated are answered in favour of
the appellants.
42. Thus, this Second Appeal has got merit and
accordingly it is being allowed.
43. Consequently, the judgement of the learned lower
Appellate Court dated 29.04.2013 passed by the learned Additional
District Judge, II, Danapur, Patna in Title Appeal No. 17 of 2009 is
set aside and the suit of the plaintiff-appellant is decreed and the
Patna High Court SA No.216 of 2013 dt.23-06-2025
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judgement and decree of the Trial Court dated 20.01.2009 passed
in Title Partition Suit No 143 of 1989 is hereby affirmed.
44. Pending interlocutory applications, if any, shall stand
disposed of.
45. There shall be no order as to costs.
(Khatim Reza, J)
Sankalp/-
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