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2000 DIGILAW 182 (PAT)

Mahboob Alam v. Khatiza Khatoon

2000-02-02

N.PANDEY, S.K.CHATTOPADHYAYA

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Judgment S.K.Chattopadhyaya, J. 1. This letters patent appeal is directed against the concurrent findings of fact, by reason of which the learned Single Judge dismissed First Appeal No. 138 of 1985(R) filed by the plaintiffs-appellants affirming the judgment and decree of the learned trial Court cased in Title Suit No. 128 of 1982. 2. As the case has a chequered career, some facts are required to be portrayed in details. 3. Md. Mahboob Alam and his two sisters filed the suit for declaration of their title over the suit properties and that Bibi Khatiza Khatoon (defendant No. 1) was the Benamidar of the plaintiffs and, as such, she did not acquire any fight, title and interest by virtue of sale-deed dated 26.7.1968. Further prayer was for declaration that the sale-deed dated 6.8.1973 and the decree in Title Suit No. 7/74 as well as the Execution Case No. 39/76 are illegal, void and unforceable and are not binding upon the plaintiffs, so far the suit property is concerned. The prayer for permanent injunction was prayed in their favour restraining Ishrat Ara (defendnat No. 3) from executing the decree obtained, passed in Title Suit No. 7/74, in Execution Case No. 39/76. Other reliefs such as cost, etc. were also prayed. 4. According to plaintiffs, they were descendants of one Sk. Bhondu Mian, who had two houses at Ranchi and Hazaribagh. Bhondus first wife gave birth to Bhagulwa and Langru alias Koka Bahera and the second wife gave birth to a son Nazir. Bhagulwa died issueless and plaintiffs are son and daughters of Langru. Thus, Nazir (defendant No. 2) is the uncle and his wife is Khatiza Khatoon (defendant No. 1) is their aunt. The genealogical table is appended to the plaint. After Bhondus death his two wives and Bhagulwa inherited the properties of Ranchi and Hazaribagh. Subsequently, these properties were inherited by Langru and Nazir. Langru being deaf and dumb by birth was also of weak minded, incapable of maintaining his share in the property. Nazir and Khatiza used to look after the affairs of Langrus property, plaintiff No. 1, Mahboob, being minor having born on 2.6.1960. Further case is that after disposing of the properties at Ranchi and Hazaribagh the remaining sale proceeds, after satisfying the debts of Langru, was deposited in the Bank in the name of Mahboob by Nazir, however, took his own share of sale amount. Further case is that after disposing of the properties at Ranchi and Hazaribagh the remaining sale proceeds, after satisfying the debts of Langru, was deposited in the Bank in the name of Mahboob by Nazir, however, took his own share of sale amount. For the benefit of Langru and his family members Nazir purchased the suit property from one Shyamapada Bhattacharjee on 26.7.1968 out of the amount deposited in the Bank in the name of Mahboob. However, as Mahboob was minor at that time, Nazir purchased the said property in the name of her wife Khatiza in Benami. In order to prosecute the eviction suit filed by Shyamapada Bhattacharjee against his tenant Jeet Singh Sethi, Nazir purchased the said property in the name of Khatiza. Khatiza got her name substituted in the said eviction suit. On 16.8.68, both Nazir and Khatiza executed an agreement (Ext. 3) in favour of plaintiffs agreeing to hand over possession of the said property to the plaintiffs after evicting the tenant Jeet Singh. Further case is that on 19.1.74 Khatiza Khatoon gave possession to the plaintiffs of the said house and since then they are in occupation of the same as the owner. After attaining majority, the plaintiff, Mahboob, got the properties released by Nazir and Khatiza by virtue of registered deed of release, dated 13.9.1980, which is Ext. 4. The plaintiffs became absolute owner of the suit property after the death of Langru and got their name mutated in the Hazaribagh Municipality. The plaintiffs assert that they came to know on 1.12.1982 that Ishrat Ara (defendant No. 3) in collusion with Khatiza and Nazir obtained a decree in her favour in Title Suit 7/74 with respect to the suit property and threat was given to them to take possession of the house in execution of the said decree. The plaintiffs came to know that on the basis of a sale-deed dated 26.7.68 by Khatiza in her name, she further executed a deed of agreement to sell the suit property in favour of one Sugan Chand Jain. According to the plaintiffs trouble started since then. When delivery was not given to said Sugan Chand, he filed a money suit being Money Suit No. 39/72 for realisation of the earnest money for the breach of terms. According to the plaintiffs trouble started since then. When delivery was not given to said Sugan Chand, he filed a money suit being Money Suit No. 39/72 for realisation of the earnest money for the breach of terms. It is the case of the plaintiffs that to defeat the claim made by Sugan Chand Jain, Khatiza made another agreement to sell the suit property on 29.7.79 during the pendency of the attachment proceeding brought by said Sugan Chand. This agreement, according to the plaintiffs, is without consideration in favour of Ishrat Ara, who was a set-up lady. Not only that, the plaintiffs assert that on 6.8.73 Khatiza executed a sale-deed in favour of Ishrat Ara without any consideration and this deed was void being of colourable transaction. Ishrat Ara filed Title Suit 7/74 against Khatiza and Nazir for declaration of title and recovery of possession. The money suit filed by Sugan Chand and title suit field by Ishrat Ara were decreed against Khatiza and Nazir. The execution case filed by Sugan Chand was fully satisfied but Execution case No. 39 of 1976 Hied by Ishrat Area was still sub judice. According to them they are not bound by the decree passed in Title Suit 7/74 and similarly the said decree was not executable against, them. 5. Defendant No. 1, Khatiza Khatoon, filed written statement supporting the case of the plaintiffs but her husband Nazir Alam (defendant No. 2) did not contest the suit even after his knowledge and thus, the suit proceeded ex-parte against him. While supporting the case of the plaintiffs Khatiza Khatoon took the plea that the plaintiffs had no cause of action against her. Giving a complete different genealogical table in her written statement, she asserted that genealogical table given in the plaint was incomplete. According to her, affairs of plaintiff No. 1, Mahboob, was being managed by her husband, Nazir, and taking advantage of Mahboobs minority this Nazir got his name entered in the Pass Book as his father with a bad intention to grab the money of Mahboob. It was Nazir. her husband, with bad intention wanted to purchase the suit house out of the said amount, which was deposited in the name of Mahboob. She admitted the ownership of Mahboob in respect of the suit property. It was Nazir. her husband, with bad intention wanted to purchase the suit house out of the said amount, which was deposited in the name of Mahboob. She admitted the ownership of Mahboob in respect of the suit property. It is her case that being an illiterate lady she could not understand or detect the malicious activity of her husband. She disowned her ownership by asserting that Nazir never invested a single farthing either for acquiring the suit property or in getting the said house vacated from Sugan Chand in the said eviction suit. Without understanding the implication, she executed may documents at the instance of her husband. She was a Pardanashin lady and. as such, she was unaware of any affairs which the plaintiffs could learn on or after 1.12.1982 Thus, according to this defendant, the master mind of the entire collusive and clandestine affairs was her husband Nazir. According to this defendant Ansarul Haque was a bossom friend of Nazir and, as such, Nazir got title suit. 7/74 filed by Ishrat Ara in collusion with each other. This defendant never asserted her right over the suit property. In a nutshell, the stand of defendant Khatiza Khatoon was that she never acquired any right, title or interest in the suit property by virtue of any sale-deed and she supported the case of the plaintiffs. 6. Ishrat Ara (defendant No. 3) is the main contestant in the suit, who asserts that she became the absolute owner of the suit property by virtue of the sale-deed executed in her favour on 6.8.73 and the decree passed in Title Suit 7/74. Denying the genealogy given by the plaintiffs this defendant asserts that plaintiffs No. 1, Mahboob Alam, was the son of Nazir and Khatiza and this fact is revealed from the account of Mahboob in the Bank in which Nazir got his name entered as father of Mahboob. The money, which was deposited in the name of minor Mahboob in the Bank was the money of Nazir and the consideration money of the suit house was paid by Nazir out of the money which was deposited in the name of Mahboob. According to this, defendant Bhondu Mian had no sons named Bhagulwa and Langru and except two daughters he had no male issue. According to this, defendant Bhondu Mian had no sons named Bhagulwa and Langru and except two daughters he had no male issue. The daughters of Langru (plaintiffs No. 2 and 3 were married-and were living in their respective in-laws houses and they were nothing to do with Khatiza and Nazir. She has asserted that Nazir is the second son of Bhondu and Mahboob (Plaintiff No. 1) and Nizam Alam are sons of Khatiza and Nazir. She categorically denied the statement that Khatiza and Nazir purchased the suit property in Benami for the benefit of Mahboob and Langru. It was Nazir Alam, who entered into the said agreement to purchase the suit property for himself and not for the benefit of Langru and his family members. By sale-deed dated 26.7.68, the suit property was purchased by Khatiza, who is the nominee of Nazir and fund out of which the said suit property was purchased from one Shyamapada Bhattacharjee was turning in the name of Mahboob Alam, which was deposited by Nazir as his father. Only to deprive these defendants from the fruits of the decree obtained in Title Suit No. 7/74, the present suit was instituted by Mahboob Alam in collusion with Nazir and Khatiza. Thus, according to this defendant, all the subsequent alleged Agreements, i.e. deed of re-conveyance and the deed of release were not only fabricated and bogus but were after-thoughts. It was Mahboob Alam with his elder brother Nizam Alam used to look after the proceeding of Title Suit 7/74, and, as such, this defendant asserts that Mahboob Alam came to know about the decree only on 1.12.1982. This defendant or her husband had no knowledge of any agreement between Nazir and one Sugan Chand Jain and thus they had no information about institution of Money Suit No. 39/72. Only when she was noticed by the Court for attachment of Rs. 10,000.00 deposited in Title Suit No. 7/74 she could know about the same. It was Nazir on behalf of his wife entered into an agreement for sale with the husband of this defendant, for which earnest money was paid to him against the deed of agreement to sale dated 24.7.73. The sale-deed was executed subsequently on 6.8.73 after payment of Rs. It was Nazir on behalf of his wife entered into an agreement for sale with the husband of this defendant, for which earnest money was paid to him against the deed of agreement to sale dated 24.7.73. The sale-deed was executed subsequently on 6.8.73 after payment of Rs. 5,000.00 and it was stipulated in the sale-deed that after getting the possession of the suit land Khatiza Khatoon will hand over possession to this defendant on receipt of balance consideration amount. As even after getting possession of the suit property Khatiza and Nazir did not hand over the same to this defendant, she along with her husband filed Title Suit 7/74. Defendant No. 2 though kept himself behind the screen, plaintiff No. 1 and his elder brother Nizam made pairvees in the said suit and ultimately when the suit was decreed in favour of this defendant and was put in execution Khatiza and Nazir (defendants No. 1 and 2) appeared in execution and prayed for time for bringing the stay order. They attempted subsequently in the High Court but without, any success. On several occasions, Khatiza and Nazir repeatedly moved the High Court against some interlocutory orders passed by the Executing Court but failed. When all attempts of Nazir and Khatiza failed right up to the High Court, one Ram Prasad Gope was set up by defendants No. 1 and 2 by filing an application under Order XXI, Rule 58 of the Code of Civil Procedure in the execution case instituted by this defendant. The petitioner of Ram Prasad Gope was also dismissed by the Executing Court, which was affirmed by the High Court in Civil Revision No. 130/80(R). 7. From the aforesaid averments made by the contesting parties the picture, which emerges, is that whereas Ishrat Ara being a decree-holder in Title Suit No. 7/74 asserted her right, title and interest over the suit property on the basis of a duly-executed registered sale-deed made in her favour by Khatiza Khatoon, on the other hand Mahboob Alam, the plaintiff of the instant suit, has set up a title over the suit property on the ground that Khatiza Khatoon and Nazir Alam in collusion with Ishrat Ara was trying to dispossess him from the suit property, over which he and his two sisters (plaintiffs No. 2 and 3) had absolute right, title and interest. 8. 8. Noticing the pleadings the trial Court framed as many as six issues, out of which issues No. 1 and 3 were not pressed by the parties. Issues No. 4 and 5 were considered together and after scrutinising the evidence on record the trial Court dismissed the suit finding, inter alia, that the plaintiffs could not prove that the suit property was purchased from the fund of Langru alias Koka Bahera. It also found that Mahboob Alam is the son of Nazir Alam and Khatiza Khatoon and Nazir opened the Bank Account in the name of Mahboob Alam describing himself as the father of Mahboob Alam. Moreover, the said money in the Bank in the name of Mahboob Alam was the money of Nazir Alam. 9. The plaintiffs aggrieved by the judgment and decree filed First Appeal 138 of 1985(R) in this Court and the same was also dismissed by a learned Single Judge on 2nd May, 1991. Against the said dismissal, the plaintiffs have preferred the instant letters patent appeal. 10. Mr. N.K. Prasad, learned Senior Counsel appearing for the plaintiffs-appellants contended that the judgment and decree of the learned Single Judge is vitiated in law inasmuch as he has failed to discuss the evidences on record and merely repeated the Principles of Mahomedan Law and that too is incorrect. His argument is that even under Mahomedan Law purchase in the name of a minor or on his behalf is always good and cannot be void as has been held by the learned Single Judge. Criticising the findings of the trial Court learned, Counsel urged that though the documents exhibited by the plaintiffs have been enumerated by the trial Court but it has not considered most of the said exhibits. Referring to the findings of the learned Single Judge in Para-graph-25 of the judgment, Mr. Prasad contends that when this Court found that Nazir Alam withdrawn the money of Mahboob Alam from the Bank of purchased the suit property out of that amount in the name of-his wife Khatiza Khatoon and not of the plaintiff, Mahboob Alam, it is crystal clear that the said property was purchased by Nazir Alam in the name of her wife only for the benefit of the minor Mahboob Alam. His argument is that any statement made by Khatiza and Nazir in Title Suit No. 7/74 will not bind the plaintiff, Mahboob Alam, in the suit filed by him because in that suit admittedly Mahboob Alam was not a party. 11. The learned Single Judge, according to Mr. Prasad, As a first Appellate Court should have discussed the evidence on record at least to find out as to whether the appreciation of evidence by the trial Court were correct or not. Lastly, Referring to Sec. 82 of the Trusts Act learned Counsel has urged that the property, which was purchased by Nazir in the name of Khatiza Khatoon was actually entrusted to the real owner, which was plaintiff, Mahboob Alam, because the money was withdrawn from the account of the plaintiff. In this connection, he has referred to the decision in the case of A. Rangaswami Pillai V/s. A. Subramarda Pilled and Ors. . 12. Mr. Shamim Akhtar, learned Counsel appearing on behalf of respondent No. 3, Ishrat Ara, on the other hand has contended that the trial Court as well as the learned Single Judge have correctly come to a conclusion on appreciating the evidence on record that the, plaintiff, Mahboob Alam, was the son of Khatiza and Nazir. In this regard, he has drawn our attention to the statement of Khatiza in paragraph-9 of her written statement and the admission register produced on behalf of Ishrat Ara, which is Ext. 1. Similarly referring to item Nos. 5 and 6 in Ext, J which is printed cash memo, learned Counsel contends that this cashmemo standing in the name of Mahboob Alam, son of Khatiza Khatoon showing his businesses in the local market and printed letter form indicating the business of the son of Khatiza Khatoon (Sk. Mahboob Alam). On the basis of various decisions, learned Counsel contends that when the parentage of Mahboob Alam was found to be incorrect as alleged by the plaintiff in his plaint and when both the trial Court and the first Appellate Court have come to a positive conclusion that Mahboob Alam was not the son of Langru alias Koka Baherabut was the son of Nazir Alam and Khatiza Khatoon, the Letters Patent Court will not disturb the said finding, which is based on appreciation of evidence. He submits that if the fact that Mahboob Alam was the son of Nazir and Khatiza and the money deposited in the Bank in the name of Mahboob was the money of Nazir Alam, there was no question of any title or interest of Mahboob Alam over the suit property because admittedly the suit property was purchased by Nazir Alam out of that amount in the name of Mahboobs mother, namely, Khatiza Khatoon. 13. It is true that the learned Single Judge as First. Appellate Court has not minutely scrutinised the evidence relied by the parties but it is not correct to suggest that the First Appellate Court has not dealt with the said evidence. From perusal of his findings in paragraphs 21 to 26 this Court is of the view that the learned Single Judge has agreed with the findings of the learned trial Court after noticing the relevant exhibits, namely, Ext. 15, Ext. 0, Ext. 3, Ext. 4 and Ext. 14, which were the crucial aspects for deciding the issue in controversy. 14. However, in order to satisfy the grievances of the appellants, this Court in the instant appeal has perused the evidence, which have been exhibited, minutely. There is no denial of the fact that respondent No. 3. Ishrat Ara, failed Title Suit No. 7/74 against Khatiza Khatoon and others for declaring her right, title? and interest over the suit property, which was purchased by her from Khatiza, Surprisingly, Nazir Alam after putting his appearance subsequently left prosecuting the suit and actually Khatiza Khatoon contested the same. It was specific case of Khatiza Khatoon that she had absolute right over the suit property and he was not Benamidar of her husband Nazir Alam. Moreover, in paragraph-9 of her written statement Khatiza Khatoon has categorically asserted that her husband Nazir Alam was managing the affairs of Mahboob Alam and since plaintiff No. 1 was a minor then the defendant No. 2, taking advantage of the minority of the plaintiff No. 1 got his name entered in the Pass Book as father of the plaintiff No. 1 because he wanted to have the authority of operating the account of the plaintiff No. 1. Now, it appears that the defendant No, 2 did that with bad intention to grab the money of the plaintiff No. 1. Now, it appears that the defendant No, 2 did that with bad intention to grab the money of the plaintiff No. 1. Even having lost Title Suit 7/74 Nazir Alam and Khatiza Khatoon did not leave to contest the title of Ishrat Ara and, as such, in Execution Case No. 39/76 one Ram Prasad Gope was set up as a claimant, who made out a case that on 26.2.69 an agreement was executed by him and Nazir in respect of the sit property and he advanced Rs. 12,000.00 at the time of purchase of the suit property from Shyamapada Bhattacharjee in the name of wife of Nazir. It was agreed that after eviction of tenant Jeet Singh Sethi, Ram Prasad Gope would be given possession and would remain in possession for the suit house for a period of 12 years. Amount would be liquidated after expiry of the said period. A miscellaneous case was registered, namely, Misc. 37/79. Nazir Alam appeared as witness No. 1 and supported the claim of Ram Prasad Gope. The petition of Ram Prasad Gope was rejected right up to this Court. The learned trial Court has found that title suit 7/74 filed by Ishrat Ara was not a collusive one and in that case Khatizas son, Nizam Alam, as D.W. 4 vised to make pairvi on behalf of his mother. On the question of parentage of Mahboob Alam, the trial Court has discussed in detail both oral as well as documentary evidence and Mr. Prasad has failed to point out that any of the evidence has been mis-interpreted by the trial Court, Ext. 4 is the certified copy of the statement of Nasim Akhtar (P.W. 19), which was made in Title Suit No. 7/74. This exhibit shows that P.W. 19 categorically stated in his cross-examination in Title Suit No. 7/74 that Nazir Alam has two sons Nizam Alam and Mahboob. Similarly, documents filed by Ishrat Ara, which are Ext. 1, Ext. I (corresponds to Ext. 15), Ext. C (corresponds to Ext. P) clearly establish that Mahboob Alam is the son of Nazir Alam and Khatiza Khatoon. The criticism of Mr. N.K. Prasad that the trial Court has merely catalogued the exhibits but has not discussed, the same, in my view, is uncharitable. In paragraph-15 of its judgment, the trial Court has given the description of all the exhibits and also noticed the contents thereof. 15. The criticism of Mr. N.K. Prasad that the trial Court has merely catalogued the exhibits but has not discussed, the same, in my view, is uncharitable. In paragraph-15 of its judgment, the trial Court has given the description of all the exhibits and also noticed the contents thereof. 15. As noticed above, Mr. Prasad is not in a position to refer to any of the exhibits, which was not considered by the trial Court. Thus, in my view, the finding of the trial Court that Mahboob Alain was not the son of Langru alias Koka Bahera, rather he was the son of Nazir and Khatiza is absolutely correct. 16. Now, the question remains that if being father of Mahboob Alam Nazir Alam withdrew the amount so deposited by him in the name of his son Mahboob and purchased the suit property out of that amount in the name of his wife, who will be the real owner of that property. 17. As noticed above, in Title Suit No. 7/74 Khatiza Khatoon asserted her absolute right, title and possession over the suit property but her claim was negatived by the Court below. Having lost in their game even in execution case filed by Ishrat Ara, Ram Prasad Gope was set up by Nazir and Khatiza to frustrate the decree obtained by Ishrat Ara. The plaintiff, Mahboob Alam, has failed to prove that the decree obtained by Ishrat Ara in Title Suit No. 7/74 was void in the eye of law. His mother Khatiza Khatoon herself demolished his case in the instant suit when she asserted he absolute right, title and interest over the suit property in Title Suit No. 7/74. 18. Having considered the evidence on record, it is absolutely clear that alter disposing of the property in question to Ishrat Ara by a valid registered deed of sale, Nazir Alam and Khatiza Khatoon collusively set up the present plaintiff No. 1, Mahboob Alam, to get rightful ownership of Ishrat Ara frustrated. This Court is of the view that the present suit filed by Mahboob Alam and two other plaintiffs was in collusion with Nazir Alam and Khatiza Khatoon. Having reached this conclusion, this Court is of the view that the alleged agreement (Ext. 3) and the deed of release (Ext. This Court is of the view that the present suit filed by Mahboob Alam and two other plaintiffs was in collusion with Nazir Alam and Khatiza Khatoon. Having reached this conclusion, this Court is of the view that the alleged agreement (Ext. 3) and the deed of release (Ext. 4) are all forged and manufactured documents, which have, been brought into existence by Nazir Alam and Khatiza Khatoon in collusion with Mahboob Alam for the purpose of the suit and, as such, they have no binding effect on Ishrat Ara, respondent No. 3, in this case. 19. Considering the above facts, this Court is not required to go into the interpretation of Mahomedan Law as sought to be interpreted by the learned Single Judge. This interpretation would have arisen if it would have been found that Mahboob Alam was the son of Langru and not of Nazir and Khatiza. On similar consideration, I am of the view, that the decision it the case of A. Rangaswami Pillai (supra) relied by Mr. Prasad has no application. 20. For the reasons stated above, I find that the findings arrived at by the trial Court as well as the learned Single Judge do not call for any interference. 21. I find no merit in this appeal, which is, accordingly, dismissed. N. Pandey, J. I agree.