( 2025:JHHC:29922 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 122 of 2022 1. Pradeep Kumar Singh aged about 62 years son of Late Chandreshwar Prasad Singh 2. Brajesh Kumar Singh aged about 59 years son of Late Chandreshwar Prasad Singh Both residents of village Nagra (Kole Kiyari), P.O. and P.S. Chitra, District Deoghar… Plaintiffs / Respondents / Appellants/ Versus 1. Madhuri Devi wife of Late Sachindra Prasad Singh 2. Shishir Kumar Singh son of Late Sachindra Prasad Singh 3. Hemant Kumar Singh son of Late Sachindra Prasad Singh All residents of Castair's Town, Deoghar, P.O., P.S. Sub-Division and District Deoghar 4. Arti Devi daughter of Late Sachindra Prasad Singh resident of village Nagra, at present Mohalla, Castair's Town, Deoghar, P.O., P.S. Sub-Division and District Deoghar .... Defendants / Appellants / Respondents 5. Pooja Singh alias Sabnum Singh daughter of Late Harikant Singh resident of Barhaiya, Ward No. VIII, P.O. and P.S. Barhaiya, District Lakhisarai ...Defendant No.2 / Respondent / Respondent --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Amar Kumar Sinha, Advocate : Mr. Kundan Kumar Ambastha, Advocate : Mr. Abdul Wahab, Advocate --- 18/24.09.2025 Heard the learned counsel appearing on behalf of the appellants. 2. This appeal has been filed against the judgment and decree dated 03.08.2022 (decree signed on 11.08.2022) passed by the learned District Judge-II, Deoghar whereby Title Appeal No. 19 of 2018 has been allowed and the trial court’s judgment dated 28.02.2018 (decree signed on 09.03.2018) by the Civil Judge, Senior Division, I, Deoghar in Title (Partition) Suit No. 65 of 1989 has been set aside. The suit was decreed by the learned Trial Court and the learned Appellate Court reversed the decree. The plaintiffs are the appellants before this court. 3. The learned counsel for the appellants has submitted that the property was purchased jointly by the plaintiffs and the original ( 2025:JHHC:29922 ) 2 defendant namely Sachindra Prasad Singh, who belong to the same family, vide Sale deed No. 2997 dated 11.11.1977. 4. It was the case of the plaintiffs that the suit property was separate property but the defendant no. 1 transferred the entire suit property by Registered sale deed dated 2355 dated 23.07.1988 in favour of defendant no. 2 and therefore the suit was filed for declaring the registered sale deed No. 2355 dated 23.07.1988 as void, illegal, inoperative and not binding upon the plaintiffs and they are entitled to get back the property from the defendant no. 2 on the half price amounting to Rs. 23,900/- and were also entitled to obtain the possession of the suit property after evicting the defendant no. 1. 5. A prayer was also made for a preliminary decree declaring that the plaintiffs’ have half share in the suit property and for appointment of pleader commissioner for partition of the suit property by metes and bounds and for allotment of plaintiff’s share and cost. 6. The learned counsel has submitted that since the property was in the joint name of plaintiffs and the defendant no. 1, it was their separate property and therefore there was no occasion to implead the daughters of the family in the suit. He submits that before the learned Trial Court, though issue was framed regarding non joinder of necessary parties but the learned trial court recorded that nothing was brought on record by the parties, particularly the defendant, to show that the suit was defective for non-joinder of necessary party and no such evidence was adduced and this issue was not much agitated by the defendants during trial and consequently the issue was decided against the defendants. 7. The learned counsel submits that the learned 1st appellate court has reversed the decree primarily on the ground that the suit was bad for non-joinder of necessary parties. The learned counsel has referred to the Prohibition of Benami Property Transactions Act, 1988 and has submitted that the property standing in the name of two persons are for all purposes to be treated as their own property and such property could not have been treated as joint family property. He submits that the entire approach of the learned 1st appellate court while setting ( 2025:JHHC:29922 ) 3 aside the judgment of the learned Trial Court is not in accordance with law. He submits that the substantial question of law be framed and decided by this court. 8. After hearing the learned counsel for the appellants, this court finds that it was the case of the plaintiffs that the suit property was purchased jointly in the name of the plaintiffs and their uncle Sachindra Prasad Singh (original defendant no.1) and it was the separate property of the plaintiffs and the defendant no.1. It was alleged that payment for purchase of the suit property was contributed by the plaintiffs by selling the jewellery of their mother, therefore, the suit property was the separate property of the plaintiffs and the original defendant no.1, but their uncle (original defendant no.1), in garb of being the self-proclaimed Karta of the family, sold the property without the consent and will of the plaintiffs to original defendant no. 2 vide registered sale deed dated 23.07.1988 and original defendant no.1 became a tenant under the original defendant no.2 and therefore, the relief was sought to set-aside the sale-deed dated 23.07.1988 and ½ share in the suit property was claimed and a relief was also prayed that the plaintiffs are entitled to get back the suit property from the defendant no. 2 on the half price amounting to Rs. 23,900/-. 9. The original defendant no. 1 contested the suit stating that no doubt the property was registered in his name along with the plaintiffs, but the same was not their separate property, rather it was the personal property of the original defendant no. 1 as the payment with respect to the property was made by him through bank draft. The original defendant no. 1 further denied any contribution by the plaintiffs at the time of purchase of the suit property. It was further stated that at the time when the suit property was purchased in the name of original defendant no. 1 and the plaintiffs, who were minor at the relevant point of time, the father of the plaintiffs namely, Chandreshwar Prasad Singh had already expired. It was stated that since the father of the original plaintiffs was no more and there was no sufficient source of income to support the joint family, which consisted of the father of the ( 2025:JHHC:29922 ) 4 original defendant no. 1, his own family and the family of his late brother, lot of debts were taken for the purposes of marriages of the sisters of plaintiffs etc. and for subsistence. It was asserted that the original defendant no. 1, being the eldest male member, became the Karta of the family and with his income from advocacy, started to support the family. It was also mentioned in the written statement that the original defendant no. 1, for legal necessity, sold the suit property because of lot of debts on the family and being the Karta of the family for legal necessity he exercised his rights to sell the property. 10. The original defendant no. 2 had also filed his written statement opposing the suit and asserted that he was bonafide purchaser of the suit property for valuable consideration through registered sale deed dated 23.07.1988 from original defendant no. 1 as Karta of the joint family consisting of descendants of Babu Radha Prasad Singh. The original defendant no. 2 asserted that they had made bonafide enquiry about the legal necessity of joint family and after purchase of the property, they had invested huge amount of money for construction and remodeling of the suit property with full knowledge of the plaintiffs and without any objection from the plaintiffs or any member of the joint family. So, the plaintiffs are estopped by their conduct. 11. It was also asserted by the original defendant no. 2 that despite knowledge of transfer, the plaintiffs deliberately did not implead the original defendant no. 2 as party initially, but impleaded him as party after a long time. The original defendant no. 2 also asserted that they had made sufficient enquiry and were satisfied by enquiry that the property was joint family acquisition and was being transferred for legal necessity. It was also asserted that the mother of the original defendant no. 1 and grand-mother of the plaintiffs also joined as co- executant in the registered deed executed by original defendant no. 1 as karta of the joint family and the sale was for the benefit of the family. It was asserted that the suit suffered from non-joinder of the mother of the original defendant no. 1, who died during the pendency of the suit and her daughter who was a necessary party to the suit. It was also asserted that at the relevant time of acquisition of the suit ( 2025:JHHC:29922 ) 5 property, the joint family of late Radha Prasad Singh was existing and he was the Karta of the family and at that point of time the plaintiffs were minor and had no separate funds or source of income. Reference was made to the recital of the deed which declared that 50% share of plaintiffs in the suit property would not have any effect as the suit property was the joint family property and it was being sold by Karta. It was asserted that through various transactions, loans were taken by the original defendant no. 1 for marriage of sisters of the plaintiffs before the sale of the property. It was also asserted that the original defendant no. 1 was allowed to be a tenant in the suit property and the original defendant no. 2 had done substantial improvement over the suit property. 12. This court finds that it is not in dispute that vide registered sale deed No. 2977 dated 11.11.1977 the suit property was purchased in the name of the plaintiffs and original defendant no.1 and the plaintiffs are the nephews of the original defendant no.1. However, the cause of action arose when the suit property was sold by the original defendant no. 1 in favour of original defendant no. 2 vide sale deed no. 2355 dated 23.07.1988. Ultimately the suit was filed for the reliefs as under: - “ Plaintiffs have brought this suit in hand for decree declaring that the registered sale deed no. 2355 dated 23.07.1988 executed by the defendant no. 1 in favour of defendant no. 2 is void, illegal, inoperative and not binding upon the plaintiffs and they are entitled to buy off the defendant no. 2 on payment of the half price amounting to rupees 23,900/- and to obtain possession over the suit premises after evicting defendant no. 1 or any one or any body on his behalf and also pray for preliminary decree declaring the plaintiff's half share in the suit property described in schedule of the plaint and appointment of pleader commissioner for partition of the suit properties by metes and bounds and also for allotment of the plaintiffs separate share and also for the cost of the suit.” 13. Thus, the suit was filed not only for setting aside the aforesaid registered sale deed dated 23.07.1988 executed by the original ( 2025:JHHC:29922 ) 6 defendant no. 1 in favour of original defendant no. 2 but was also filed seeking partition of the suit property by metes and bounds. 14. The specific case of the plaintiffs was that they are Hindus governed by Mitakshara School of Hindu Law and the plaintiffs are the nephews of the original defendant no.1. It was their further case that though they were members of coparcenary of the joint family but the suit property was a separate property which was purchased by the plaintiffs and the original defendant no.1 vide registered sale deed No. 2997 dated 11.11.1977. Consequently, the plaintiffs claimed ½ share of the property. It was further asserted in the plaint itself that the defendant no. 1 was not the Karta of the joint family. 15. So far as the written statement is concerned, the defendant 1st party gave a genealogy as recorded in the trial court’s judgment and raised a plea of non-joinder of necessary parties. It was asserted that the original defendant no.1 had enrolled himself as lawyer and he had paid the entire consideration money through bank draft. 16. It was further case of the original defendant no.1 that his father had assured that consideration amount of Rs. 20,000/- will be paid out of joint family property, so the names of the minor plaintiffs were also included in the sale deed. According to the original defendant no.1, the plaintiffs had nothing to do with the suit property. 17. It was further asserted that the sale of the suit property by the original defendant no.1 was as karta of the joint family and was for meeting out of the legal necessity such as payment of antecedent debts incurred by the father of the original defendant no.1 and grandfather of the plaintiffs and also for discharging joint liabilities of the family. Another written statement was filed by defendant no. 1 asserting that during the life time of father of the defendant namely Radha Prasad Singh joint family was burdened with heavy loan and Chandreshwar Prasad Singh- father of the plaintiffs was a patient of cancer and he was taken to Vellore for treatment and incurred heavy cost. This was followed by expenses for the marriage of the daughters of Chandradeshwar Prasad Singh and the original defendant no.1 had paid the entire amount at the time of purchase of the suit property and ( 2025:JHHC:29922 ) 7 it was agreed that amount of Rs. 20,000/- will be reimbursed by the joint family. It was also asserted that the suit property was sold to meet the legal necessity of the family and therefore the plea of cancellation of the sale deed of the year 1988 was not in accordance with law. 18. The original defendant no. 2 also filed a written statement stating that he was the bonafide purchaser for consideration. He stated that the original defendant no. 1, being the karta of the joint family consisting of descendants of Babu Radha Prasad Singh, sold the suit property for legal necessity of the joint family. The original defendant no.2 also stated that he invested about six lacs over construction and remodeling of the suit property. According to this defendant, the mother of the original defendant no. 1 / grandmother of the plaintiffs also joined as co-executant in the sale deed executed by defendant no. 1 as karta of the family and according to this defendant, the suit property was purchased by Radha Prasad Singh vide registered deed dated 11.11.1977 and Radha Prasad Singh was the grandfather of the plaintiffs. The following issues were framed by the learned trial court which are as under: - “(i) Is the suit as framed maintainable? (ii) Have plaintiffs got any valid cause of action for the suit? (iii) Is the suit defective of the necessary parties? (iv) Is there any unity of title and possession of the parties over the suit property? (v) Is the suit property joint family property or a separate property and self-acquired property of the defendants? (vi) Has the defendant sold the suit property clear of debts incurred by the father Radha Pd. Singh on 23.07.1988 and legal necessity of the family? (vii) What relief or reliefs plaintiffs are entitled to? (viii) Whether plaintiffs are entitled for decree of declaration that the registered sale deed no. 2355 dated 23.07.1988 executed by defendant no. 1 in favour of defendant no. 2 is void, illegal and not binding on plaintiffs?” ( 2025:JHHC:29922 ) 8 19. The issue nos. (iv), (v), (vi) and (viii) were taken up together. The learned Trial Court has come to a finding in paragraph no. 21 as under: - “From survey of all the documents and examination of all the evidences including going through pleading of the parties I find no support for sustaining that sale deed whereas property has been sold for rupees 47, 800/- cannot be said to have for any family necessity, there is want of legal necessity for sale. Plaintiff and defendant first party were admittedly coparcener. Purchaser defendant second party has failed to prove the necessity. I am of the view that plaintiffs have right, title over the suit property. The suit property is joint family property. There is nothing to show that defendant Sachindra Pd. Singh has sold the suit property to clear the debt incur by father Radha Pd. Singh as binding legal necessity. So, registered sale deed no. 2355 dated 23.07.1988 i.e. Exhibit 1/a is void, illegal and not binding on the plaintiff and required to be cancelled and hereby cancelled. This Court has no option except to cancel the sale deed no. 2355. Plaintiffs are entitled for ½ share in the suit property. Plaintiffs shall have right of recovery of the ½ share of the property from the respective purchaser. Thus, issue nos. IV, V, VI and VIII are accordingly decided in favour of plaintiffs and against the defendants.” 20. The learned Trial Court held that the suit property was joint family property and partitioned the property ½ and ½ and also held that the plaintiffs are entitled to recover half share of the property from the purchaser (original defendant no.2) and decreed the suit. The learned court also held that there was nothing to show that original defendant no.1 had sold the suit property to clear the debt incurred by his father as binding legal necessity. So far as non-joinder of necessary parties is concerned, not much was argued and ultimately no finding was recorded. 21. The 1st appeal was filed by the defendant no.1 / their legal representatives. Before the learned 1st appellate court, plea was again raised regarding non joinder of necessary party which has been recorded in paragraph 2.2 and a plea was also raised that the property was a joint family acquisition and was transferred for legal necessity. The appellants before the 1st appellate court had also exhibited certain documents by way of additional evidence. The appellants before the ( 2025:JHHC:29922 ) 9 learned 1st appellate court had also argued that the learned trial court has erroneously held that the plaintiffs are the co-sharers of the suit property, rather the suit property belongs to the family and it was joint family property. 22. The point for determination framed by the learned 1st appellate court as under: - “ The POINT OF DETERMINATION in the present case is whether the trial court has correctly allowed the suit of the plaintiff and granted him share by partition of the suit property or not ?? and whether there was any legal necessity as alleged ?? and whether the trial court has not considered the joinder of necessary parties while adjudicating the matter.” 23. The learned 1st appellate court recorded a clear finding in paragraph no. 8.2 which are as under:- “ Further, from the pleadings, this Court can cull out that the grandfather of the plaintiff Late Sri Radha Pd. Singh was a Ghatwal and the parties were owning joint family property in their native village which are not made part of the present suit. What astonishes this Court is that when most of the properties belonging to the parties are joint family properties, why this particular property was stand alone left to be the separate property of defendant no. 1 and plaintiffs. No explanation has been given by the plaintiffs as to why the suit property was the separate property of the joint family and why the other properties were jointly owned by them. This prima facie reflects that the properties owned by the family were joint family properties. Further, it is on record and has been admitted by the plaintiff in para 25 of the cross-examination of PW 2 that the payment of the suit property was made by the bankers’ draft. Further, nothing has been mentioned in the plaint as to who made the payment of the suit property and by which mode it was being made. Further, nothing has been denied by the plaintiff in his evidence that suit property was purchased from the bank account of the defendant no. 1. Even if it is presumed that the suit property was purchased from the sole funds of the defendant no. 1 then also by the doctrine of Blending and by way of clear admission by defendant no. 1 that to honour the words of his father he has inserted the names of plaintiffs as the co-owners of the property. It was ( 2025:JHHC:29922 ) 10 further admitted by the defendant No. 1 that he being the Karta of the family after the death of his father Radha Prasad Singh had full rights and control over the suit property and exercising that rights as a Karta he sold the suit property for legal necessity. Therefore, from the aforesaid admissions and indications about the purchase and uses of the suit property it is very much clear and this Court convincingly holds that the suit property is the joint family property of the parties i.e. plaintiffs and defendant no. 1. Therefore, the contention of the plaintiffs that the suit property is their separate property along with defendant no. 1 is negated and rejected.” 24. Upon reading of paragraph 8.2, this court finds that the learned 1st appellate court has recorded a finding that it was admitted by defendant no. 1 that he being the karta of the family after the death of his father Radha Prasad Singh had full right and control over the property and exercising the right as karta, sold the suit property for legal necessity. The learned court held that the property was joint family property, and at the same time negated the contention of the plaintiffs that the suit property was the separate property of the plaintiffs along with defendant no. 1. The 1st appellate court examined as to whether the suit property was sold for legal necessity or not and the court also rejected the plea based on benami transaction by referring to the exception under Section 2 (9) of the Prohibition of Benami Property Transactions Act, 1988. Then in paragraph 8.4 the learned 1st appellate court held that the suit property was joint family property and there was no legal necessity to sell the property and then considered as to whether the suit would fail on account of non-joinder of necessary parties. While considering the point of non-joinder of necessary parties vide paragraph 8.5 onwards the learned 1st appellate court recorded at 8.7 that as per law, those parties from whom no relief has been claimed may also be added since they may be affected as a consequence of the decree. Paragraph 8.7 of the 1st appellate court’s judgement reveals that the 1st appellate court had also granted opportunity to the plaintiffs to implead their sisters and also legal representatives of their grandmother [who died during the pendency of ( 2025:JHHC:29922 ) 11 the suit] as party to the proceedings, but the plaintiffs declined and ultimately the 1st appellate court held that the sisters of plaintiffs as well as grandmother of the plaintiffs were necessary party to the suit as the nature of the suit property was joint family property. 25. This court finds that once it was held that the property was a joint family property, the daughters and also the legal heirs of the grandmother were necessary party to the suit. The learned 1st appellate court has rightly held that the suit was bad for non-joinder of necessary parties. Opportunity was also given to the plaintiffs for addition of party, but they did not avail the same before the learned 1st appellate court. 26. This court finds no substantial question of law involved in this case. Accordingly, this appeal is dismissed. 27. Pending I.A., if any, is closed. 28. Let this order be communicated to the court concerned through FAX. (Anubha Rawat Choudhary, J.) Dated: 24/09/2025 Uploaded on: 12/01/2026 Binit