Research › Browse › Judgment

Allahabad High Court · body

1980 DIGILAW 908 (ALL)

Haji Mohammad Siddique v. Nanhey

1980-10-03

S.D.AGARWAL

body1980
JUDGMENT S.D. Agarwal, J. - These are four connected second appeals arising out of a suit filed by Nanhey and Abdul Saeed for partition and separation of their 2 / 5 th share in the house in question. The house in dispute is no. 144 old, present no. 234, Mohalla Atala, Allahabad. The suit for partition was decreed by the trial court on 22nd August 1975 only in respect of ?th share amounting to 18 sihams out of 96 sihams in the disputed house. The shares of other co-sharers were also determined by the trial court. Against the said judgment five appeals were filed before the lower appellate court. Civil Appeal No. 651 of 1975 was filed by Nanhey and others. Civil appeal no. 689 of 1979 by Azizur Rahman and others, Civil appeal no. 722 of 1975 by Abdul Hakim and Civil appeal no 74 of 1975 by Mohd. Illyas. The four appeals were disposed of by a common judgment by the lower appellate court on 16th January 1976. Against the said judgment second appeal no. 2500 of 1976 has been filed by Saleem son of Azeemullah, second appeal no. 1399 of 1976 by Haji Mohd. Siddique, second appeal no 118 of 1976 by Abdul Hakim and second appeal no. 267 of 1977 by Haji Mohd. Siddique. All the four appeals, which have been filed in this Court, arise out of the same suit and raise common questions of fact and law and as such are being disposed of by a common judgment. Learned counsel for the parties also have argued all the four appeals together. 2. I have heard Sri. S.S. Khan, learned counsel for the plaintiff respondent, Sri Dhurub Narain on behalf of Abdul Hakim in second appeal no. 118 of 976, Sri. M.P. Singh on behalf of Mohd. Siddique in second appeals nos. 1396 and 267 of 1977 and Sri. N.A. Kazrni on behalf of Saleem in second appeal no. 2500 of 1976. 3. Sri. Dhurub Narain learned counsel for the appellant has urged that the finding recorded by the lower appellate court that the sale deeds dated 30th October 1965 and 14th February 1966 were validly executed in favour of the plaintiffs respondents is vitiated in law as the lower appellate Court has wrongly placed the burden of proof on the appellant. 3. Sri. Dhurub Narain learned counsel for the appellant has urged that the finding recorded by the lower appellate court that the sale deeds dated 30th October 1965 and 14th February 1966 were validly executed in favour of the plaintiffs respondents is vitiated in law as the lower appellate Court has wrongly placed the burden of proof on the appellant. The argument is that the burden of proof should have been placed on the plaintiffs respondents. Sri. M.P. Singh learned counsel on behalf of Mohd. Siddique has also supported the argument in regard to the validity of the sale deems as urged by Sri Dhurub Narain on behalf of Abdul Hakim and he has further urged that the finding recorded by the lower appellate court that there was no oral gift in favour of Mobd. Siddique is a finding vitiated in law. Sri N.A. Kazmi learned counsel for Saleem has further urged that he is a bona fide transferee for value from Ahmad Kareem and the finding recorded by the lower appellate Court that there was no valid will in favour of Abdul Kareem is a finding vitiated in law. In reply Sri. S.A. Khan has supported the judgment of the lower appellate court on all the three contentions raised by the learned counsel on behalf of the appellants. 4. The lower appellate Court in its judgment dated 16th January 1966 has considered the question of the validity of the sale deed under point no. 7. The lower appellate court framed the following question : "Whether Hajra Bibi executed the two sale deeds in favour of the plaintiffs and whether it was conscious execution by the lady after understanding the contents of the two deeds." 5. Smt. Hajra Bibi had executed the two sale deeds on 30th October 1965 and 14th February 1966 in favour of the plaintiffs respondents Nanhey and Abdul Saeed. It is admitted that they are registered documents. The arguments of the learned counsel for the appellants is that Smt. Hajra Bibi without understanding the contents of the same has executed the said sale deeds in favour of the plaintiffs respondents. It is admitted that they are registered documents. The arguments of the learned counsel for the appellants is that Smt. Hajra Bibi without understanding the contents of the same has executed the said sale deeds in favour of the plaintiffs respondents. The lower appellate court, after examining the various authorities of this Court as well as of other High Courts, came to the correct conclusion in law that the burden of proof that the documents were executed by the lady after understanding the contents of the same was on the plaintiffs respondents. The approach of the lower appellate court, therefore, on this question is in accordance with law. In accordance with this principle the lower appellate court thereafter examined the evidence of the parties and ultimately recorded a categorical finding of fact to the effect that the two sale deeds were read and explained to the lady who after fully understanding the contents of the same signed on the same. She had both physical and mental capacity to understand the contents. This clearly is a finding of fact. As I have already stated above the approach of the lower appellate court is strictly in accordance with law on the settled principle of law laid down by various High Courts in regard to documents executed by Purdahnaship ladies. The only question which the lower appellate court examined was whether on the appreciation of oral and documentary evidence the burden has been sufficiently discharged by the plaintiff appellant or not. The lower appellate court came to the conclusion that the said burden had been discharged, by the plaintiffs respondents and thereafter concluded that the said documents were executed by the lady after fully understanding the contents of the same. This finding is a finding of fact and I do not find any legal error in the same. In the circumstances so far as the first submission of the learned counsel is concerned it has no substance. The second submission which has been made by the learned counsel in regard to point no. 6 which was framed by the lower appellate court as follows : "Whether Hajra Bibi gave an oral gift to defendant no. 6 ?" 6. In regard to point no. 6 the case set up was that Smt. Hajra Bibi had transferred the whole property by oral gift to Mohd. Siddique, who was defendant no. 6 which was framed by the lower appellate court as follows : "Whether Hajra Bibi gave an oral gift to defendant no. 6 ?" 6. In regard to point no. 6 the case set up was that Smt. Hajra Bibi had transferred the whole property by oral gift to Mohd. Siddique, who was defendant no. 6 in the suit and, therefore, he became the sole owner of the property in suit. The lower appellate court has observed that Mohd. Siddique did not even give the date of oral gift in his favour. Under order 10 Rule 2 C.P.C. statement it was only stated that the oral gift took place in July 1965. No. specific date was given in July also. Thereafter the lower appellate court examined the oral evidence and found that the statement of Mohd. Siddique setting up a oral gift cannot possibly be believed and as such the lower appellate court found that the oral gift was not established. This in my opinion is also clearly a finding of fact. It does not suffer from any error of law. This submission of the learned counsel is also, therefore, not well founded. 7. In regard to the last submission made on behalf of Saleem, it was urged that even though the will may not have been found established but since Saleem was a bona fide transferee for value the suit could not have been decreed in respect of his share. I do not agree with the submission made by the learned counsel. If the vendor who sold the property to Saleem himself did not have any right to sell the property the transferee cannot acquire, any title in respect of the property as a transferee can only acquire such title which the transferor has. If the transferor does not have any title to the property the transfer would not be valid in respect of the property sought to be transferred. The only remedy open to Saleem is to claim compensation from his transferor who had transferred the property to him though he had no title to the same. On the basis of this submission it cannot be held that so far as the plaintiffs respondents are concerned, who are the transferees for valid consideration are not entitled to a decree for partition of their share which they had purchased from Smt. Hajra Bibi. 8. On the basis of this submission it cannot be held that so far as the plaintiffs respondents are concerned, who are the transferees for valid consideration are not entitled to a decree for partition of their share which they had purchased from Smt. Hajra Bibi. 8. In the circumstances all the three submissions made by the learned counsel for the appellants fail and I do not find any force in the appeals. 9. In the result all the four appeals are dismissed but in the circumstances of the case parties are directed to bear their own costs in all the four appeals.