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2001 DIGILAW 383 (CAL)

AMENA BEWA v. TAHIR SK.

2001-07-03

SUBHRO KAMAL MUKHERJEE

body2001
S. K. MUKHERJEE, J. ( 1 ) THIS second appeal arises out of a suit for partition. ( 2 ) PARTITION Suit No. 128 of 1976 was instituted in the Court of the learned Subordinate Judge, Malda by the predecessor-in-interest of this appellants, Kasur Ali Shaikh, alleging, inter alia, that 'ka' schedule property originally belong to Amru Seikh. Amru Seikh died in 1973 leaving behind two sons, that is, the plaintiff and the defendant No. 2 and three daughters, that is, defendant No. I, defendant No. 3 and defendant No. 4. The heirs and legal representatives of Amru Seikh were in joint possession of the properties left by Amru Seikh. As amicable possession was no longer possible, the plaintiff demanded partition, but the defendants avoided. Moreover, the wife of defendant No. 2 gave out that there has been a deed in respect of the entire property and upon search in the registry office the plaintiff came to learn that Amru Sheikh executed an alleged heba-bil-ewaj in respect of 'ka' schedule property in favour of the defendant No. 1, Afron Bibi. Afron Bibi executed a kobala in favour of defendant No. 2. It is contended that the aforesaid deeds were fraudulent and void documents. Amru Sheikh never delivered possession of 'ka' schedule property to the defendant No. 1, the said alleged heba-bil-ewaj was never acted upon and Amru Seikh possessed the suit property till his death. The plaintiff claimed 2/7th share in the 'ka' schedule property by way of inheritance. ( 3 ) IN respect of 'kha' schedule property it was alleged by the plaintiff that, in good faith, he advanced a sum of Rs. 1,575/- (Rupees one thousand five hundred seventy five) only, in two instalments, to his elder brother, that is, defendant No. 2 and the defendant No. 2 gave him an impression that the property was purchased jointly in the names of the plaintiff and the defendant No. 2. It is contended that both the plaintiff and the defendant No. 2 were in ejmali possession of the 'kha' schedule property. On September 2, 1976, on enquiry, the plaintiff has come to learn that the defendant No. 2 fraudulently got the kobala in his name in order to deprive the plaintiff of his legitimate share. The plaintiff, therefore, claimed moiety share in respect of 'kha' schedule property. ( 4 ) THE defendant Nos. On September 2, 1976, on enquiry, the plaintiff has come to learn that the defendant No. 2 fraudulently got the kobala in his name in order to deprive the plaintiff of his legitimate share. The plaintiff, therefore, claimed moiety share in respect of 'kha' schedule property. ( 4 ) THE defendant Nos. 1, 3 and 4 have filed a joint written statement, but they did not come forward to contest the suit. However, in the said written statement the defendant Nos. 1, 3 and 4 contended that the heba-bil-ewaj in favour of the defendant No. 1 is a fraudulent document and that the defendant No. 1 never gave Koran sharif to his father and the heba-bil-ewaj was never acted upon. The defendant No. 2 took the defendant No. 1 to the registry office and got the kobala in his favour. It is alleged that the kobala was never read over to the defendant No. 1. They asserted their shares in the 'ka' schedule property and, also, prayed for partition. ( 5 ) THE defendant Nos. 2 and 5 to 8 filed a joint written statement. They alleged that Amru Sheikh, long before his death, on March 13, 1960, executed one registered deed of heba-bil-ewaj in favour of the defendant No. 1 and while the defendant No. 1 was in possession, she executed a registered kobala dated March 29, 1965 and thereby conveyed the property described in 'ka' schedule to the defendant No. 2 at a consideration of Rs. 1,000/- (Rupees one thousand) only. The defendant No. 2, thereafter, transferred 'ka' schedule property to defendant Nos. 5 to 8 by a registered deed of heba-bill-ewaj on January 15, 1976 and since then they are in possession of the same. ( 6 ) THE defendant No. 2 and 5 to 8 alleged that by a registered kobala dated October 8, 1976 the defendant No. 2 purchased a portion of 'kha' schedule property on payment of Rs. 2,000/- (Rupees two thousand) only from Kabiruddin Sheikh. It was, further, alleged that earlier by a kobala dated March 22, 1973 the other portion of the 'kha' schedule property was purchased by the defendant No. 2 from Mokbul Sheikh at a consideration of Rs. 1,000/- (Rupees one thousand) only. The defendant No. 2 is in possession of the 'kha' schedule property and that the plaintiff has no share in respect thereof. 1,000/- (Rupees one thousand) only. The defendant No. 2 is in possession of the 'kha' schedule property and that the plaintiff has no share in respect thereof. ( 7 ) THE learned trial judge by the judgment and decree dated August 19, 1981 decreed the suit in part. Although the claim of the plaintiff in respect of 'kha' schedule property was rejected, but the claim of the plaintiff in respect of 'ka' schedule property was upheld and it was declared that the plaintiff had 2/7th share in the 'ka' schedule property. The learned Subordinate Judge held that the heba-bill-ewaj allegedly executed by the admitted owner in favour of the defendant No. 1 was a fraudulent and void document. The defendant No. 1 was, admittedly, an illiterate lady and the defendant No. 2 and 5 to 8 have failed to establish that the defendant No. 1 executed the Kobala in favour of the defendant No. 2 consciously. Accordingly, it was held both the deeds of heba-bil-ewai and the kobala in respect of 'ka' schedule property are void documents. The share of the plaintiff was upheld. There was no dispute about the share of the plaintiff by inheritance. ( 8 ) O. C. Appeal No. 56 of 1981, was preferred by the defendant Nos. 5 to 8, who were, also, the heirs and legal representatives of the defendant No. 2, in the Court of the learned District Judge, Malda, The learned District Judge did not entertain the claim of the plaintiff in respect of the 'kha' schedule property in the absence of any cross objection. However, the learned District Judge allowed the appeal and set aside the judgment and decree passed by the learned trial judge and held that plaintiff has no right, title, interest or possession in respect of the 'ka' schedule property. ( 9 ) IN this appeal the learned Advocate for the plaintiffs/appellants did not press the claim in respect of the 'kha' schedule property and as such I am only concerned in respect of 'ka' schedule property. ( 9 ) IN this appeal the learned Advocate for the plaintiffs/appellants did not press the claim in respect of the 'kha' schedule property and as such I am only concerned in respect of 'ka' schedule property. ( 10 ) ALTHOUGH no substantial question of law was framed at the time of hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure, the learned Advocate appearing for the appellants formulated the following substantial questions of law at the time of hearing of the appeal: (1) Whether the learned District Judge substantially erred in law in proceeding erroneously on the basis that as the defendant No. 1 deposed as plaintiff's witness No. 3, it has to be presumed that the written statement filed by her has been abandoned and that it was incumbent on her behalf to depose as witness for the defendant No. 1, 3 and 4, although there was no conflict of interest between the plaintiff and the defendant No. 1 in the suit. (2) Whether the learned District Judge substantially erred in law in failing to apply the settle principles of law governing the case of an illiterate lady making a disposition and whether the learned District Judge erroneously shifted the burden on the plaintiff while it was for the defendant No. 2 and 5 to 8 to prove that the defendant No. 1 voluntarily executed the deed of sale in favour of the defendant No. 2 out of her free will and with full knowledge of the contents of the deed. ( 11 ) THE defendant No. 1 along with defendant Nos. 3 and 4 filed a joint written statement, inter alia, supporting the claim of the plaintiff. The defendant No. 1 deposed in this case as plaintiff's witness No. 3 and she categorically stated that she did neither give any Koran sharif to her father nor her father gave the 'ka' schedule property to her by virtue of the alleged heba-bill-ewaj. She categorically stated that she never exclusively possessed 'ka' schedule property. She, further, categorically stated that she never sold away the property described in 'ka' schedule to defendant No. 2 on accepting money. She was cross-examined on behalf of the contesting defendants, but nothing contrary could be brought out from her. Her husband corroborated her. She categorically stated that she never exclusively possessed 'ka' schedule property. She, further, categorically stated that she never sold away the property described in 'ka' schedule to defendant No. 2 on accepting money. She was cross-examined on behalf of the contesting defendants, but nothing contrary could be brought out from her. Her husband corroborated her. One of the witnesses for the defendant, on the contrary, in the cross examination, had to admit that Amru Seikh died in his bastu situated in his 'ka' schedule property and Amru Seikh was in possession of the 'ka' schedule property so long he was alive. ( 12 ) THE learned District Judge was very critical as to why the defendant No. 1 deposed as plaintiff's witness No. 3 and not as a witness on behalf of defendant Nos. 1, 3 and 4. The learned District Judge was of the opinion that as the defendant No. 1 did not appear as the witness on behalf of defendant Nos. 1, 3 and 4, it should be treated that their written statement was abandoned and the plaintiff was not entitled to take advantage of the statements made in the written statement of the defendant Nos. 1, 3 and 4 as they did not appear as contesting parties. ( 13 ) THE aforesaid approach of the learned District Judge was wholly erroneous. The learned District Judge totally misdirected himself in rejecting the evidence of the defendant No. 1. There was no conflict of interest between the plaintiff and the defendant Nos. 1, 3 and 4. The plaintiff in his plaint alleged that the heba-bil-ewaj was never executed by Amru Seikh in favour of the defendant No. 1 nor the defendant No. 1 executed a kobala in favour of the defendant No. 2 in respect of the 'ka' schedule property. The defendant Nos. 1, 3 and 4, after receiving the summons of the suit, entered appearance in the suit and filed their written statement accepting the plaint case. Whether the defendant No. 1 appeared as a witness for the plaintiff or for the defendant Nos. 1,3 and 4 is wholly immaterial. She appeared as a witness in the case and supported the case of the plaintiff, which was, also, her case. She was cross-examined by the contesting defendants. Whether the defendant No. 1 appeared as a witness for the plaintiff or for the defendant Nos. 1,3 and 4 is wholly immaterial. She appeared as a witness in the case and supported the case of the plaintiff, which was, also, her case. She was cross-examined by the contesting defendants. The learned District Judge nurtured completely under a mistaken notion that, in the aforesaid situation, the evidence of the defendant No. 1 has to be rejected or that it was to be presumed that the defendant Nos. 1, 3 and 4 did abandon their written statement. The procedure suggested by the learned District Judge is unknown in law. The material and relevant evidence of the defendant No. 1 was not considered by the learned District Judge which, if considered, would have led to an opposite conclusion. ( 14 ) THE defendant No. 1 is admittedly an illiterate woman. She has, in her written statement, categorically asserted that the kobala allegedly executed by her in favour of the defendant No. 2 was obtained by the defendant No. 2 by misrepresentation. ( 15 ) THE principles governing a pardanashin lady govern an illiterate lady also. Law throws a special cloak of protection around her. The Court has to be satisfied that the illiterate lady executing a document had independent advice, that she had sufficient intelligence to understand the relevant and important matters, that she understood the contents of the document and that there was no undue influence or misrepresentation. The Court has to ascertain that an illiterate lady executing a deed of sale has been a free agent and duly informed of what she was doing. In our country pardanashin and illiterate ladies have been given a special protection in view of the social condition. They are presumed to have an imperfect knowledge of the world as they are practically excluded from social interaction and communion with outside world. Under the circumstances, it was for the defendant Nos. 2 and 5 to 8 to prove that defendant No. 1 voluntarily executed the deed of sale out of her free will and with full knowledge of the contents of the deed. In my view, the defendant Nos. 2 and 5 to 8 have miserably failed to discharge the onus thrown upon them under law. 2 and 5 to 8 to prove that defendant No. 1 voluntarily executed the deed of sale out of her free will and with full knowledge of the contents of the deed. In my view, the defendant Nos. 2 and 5 to 8 have miserably failed to discharge the onus thrown upon them under law. Accordingly, the appeal is allowed and the judgment and decree passed by the lower appellate Court are set aside and those of the learned trial judge are restored. There will be no order as to costs. Let xerox certified copy of the judgment and decree, if applied for, be supplied to the applicants on urgent basis. Appeal allowed