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2014 DIGILAW 154 (CAL)

Msst. Anowara Bibi v. Sk. Nasiruddin

2014-02-26

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This second appeal is at the instance of the plaintiff/respondent and is directed against the judgment and decree dated August 31, 2009 passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in Title Appeal No.1 of 2007 thereby reversing the judgment and decree dated November 29, 2006 passed by the learned Civil Judge (Junior Division), 1st Additional Court at Alipore in Title Suit No.38 of 2006. The plaintiff instituted the aforesaid suit for declaration of title, permanent injunction and other reliefs against the defendants in respect of the suit property as described in the schedule to the plaint before the learned Trial Judge contending, inter alia, that Sk. Mojahar, husband of the plaintiff was the owner of the suit property. He died leaving the plaintiff, his wife as the sole owner and as such, according to the provisions of Sunni School of Mohammedan Law, she became the absolute owner of the suit property. The defendants are the complete strangers and they have no right, title and interest over the suit property, but, on December 3, 1992 the defendant no.1 along with some men tried to take forceful possession of the suit property by disclosing that Sk. Mojahar gifted the suit property to the defendants by a registered deed of Hebanama dated October 14, 1992. Thereafter, the plaintiff obtained a certified copy of the deed from the office of the Sub-Registrar and came to know that the defendants managed to get a registered deed of Hebanama. In fact, Sk. Mojahar died on October 16, 1992 of cancer and before that, he remained unconscious since October 13, 1992 and as such, the said Hebanama was manufactured. Sk. Mojahar never delivered possession of the suit property. So, the defendants have no right, title, interest and possession over the suit property at all. The suit has been filed for the reliefs already stated. The defendant no.1 is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. It is also the specific case of the defendant no.1 that Khairon Bibi alias Khaironnesha Bibi is the sister of Sk. Mojahar and she has been residing in a portion of the suit property with her husband all along by making a structure thereon for the last 25 years. It is also the specific case of the defendant no.1 that Khairon Bibi alias Khaironnesha Bibi is the sister of Sk. Mojahar and she has been residing in a portion of the suit property with her husband all along by making a structure thereon for the last 25 years. The defendant no.1 has also contended that he has been residing in the suit premises for the last 25 years. He also asserted that Sk. Mojahar was of sound mind on October 14, 1992 when the Hebanama was executed and registered. Upon recording evidence of both the sides, the learned Trial Judge concluded that the plaint case had been proved and accordingly, he decreed the suit. Being aggrieved, the defendant no.1 preferred an appeal being Title Appeal No.1 of 2007 and the said appeal was allowed in part holding that the plaintiff being the wife of Sk. Mojahar acquired right, title and interest in respect of the suit property to the extent of 1/4th share and Khairon Bibi alias Khaironnesha Bibi being the full sister of Sk. Mojahar had acquired 3/4th share. Accordingly, the decree passed by the learned Trial Judge, was modified holding such shares. Being aggrieved by such judgment and decree, the plaintiff preferred this second appeal. At the time of admission of the second appeal the following substantial questions of law were framed for decision :- (i) “Whether the learned Court of appellate below committed substantial error of law in overlooking the fact that the question whether Sk. Mojahar had any sister, can be proved by giving positive evidence of the person who claims the existence of such sister and the plaintiff was not in a position to give any positive evidence, for proving such negative fact; (ii) Whether the learned Court of appellate below committed substantial error of law in reversing the finding of the fact that Sk. Mojahar had no sister even in the absence of any cogent positive evidence adduced by the defendants. Mojahar had no sister even in the absence of any cogent positive evidence adduced by the defendants. (iii) Whether the learned Court of appellate below committed substantial error of law in reversing the finding of facts recorded by the learned Trial Judge, notwithstanding the fact that no reasonable individual having regard to Section 3 of the Evidence Act would consider the evidence adduce on behalf of the defendant, on that point as sufficient basis of such finding.” Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that it is not in dispute that the parties to the suit are governed by the Sunni School of Mohammedan Law. Admittedly, Sk. Mojahar was the recorded owner of the suit property. Admittedly, the plaintiff/appellant herein is the wife of Sk. Mojahar. It is also an admitted fact that Sk. Mojahar had no issue. So, according to Sunni School of Mohammedan Law as per plaint case, the plaintiff is entitled to get the decree of declaration of title as prayed for over the entire suit property provided there is no other heir as residuary. She has denied the contention of the defendants that Sk. Mojahar had one sister named Khairon Bibi alias Khaironnesha Bibi. She has also denied that Sk. Mojahar executed a Hebanama in favour of the defendants on October 14, 1992. Admittedly, the defendant no.1 is the son of Khairon Bibi alias Khaironnesha Bibi. So far as the execution of the deed of Hebanama dated October 14, 1992 is concerned, I find from the concurrent findings of both the Courts below that the said Hebanama (certified copy of which has been marked ‘Exhibit-5’ on behalf of the plaintiff) had not been executed by Sk. Mojahar at all, based on the evidence on record and such findings, in my view, are not perverse at all. Therefore, in my view, both the Courts below have rightly rejected the contention of the defendants that Sk. Mojahar executed a Hebanama dated October 14, 1992. It is an admitted position that Sk. Mojahar died on October 16, 1992 from liver cancer and as per admission of the D.W.2, Khairon Bibi alias Khaironnesha Bibi, he was unconscious in the last part of his life. Mojahar executed a Hebanama dated October 14, 1992. It is an admitted position that Sk. Mojahar died on October 16, 1992 from liver cancer and as per admission of the D.W.2, Khairon Bibi alias Khaironnesha Bibi, he was unconscious in the last part of his life. There are total anomalies as to the place and time of the execution of the deed of Hebanama and the defendant no.1 has failed to produce the original Hebanama deed to prove his contention that Sk. Mojahar had ever executed the said deed of Hebanama. Above all, when the defendant no.1 has claimed that her mother had got 3/4th share by inheritance, being the sister of Sk. Mojahar, in my view, there was no need at all to execute the Hebanama over the 50% of the suit property. So, from the direct and the circumstantial evidence, in my view, so far as the Hebanama is concerned, both the Courts below have rightly concluded that in view of such findings and the fact that, the possession of the suit property had not been delivered, as per materials on record, at the time of execution of the Hebanama, as per paragraph no.149 read with 152 of the Mohammedan Law, the contention of the defendants as to the execution of the Hebanama shall not be considered at all. I fully agree with such findings being not perverse at all, but, based on evidence. Now, the question which is left for decision is over the contention of the defendant if Khairon Bibi alias Khaironnesha Bibi, D.W.2 is the sister of Sk. Mojahar. If it is proved that Khairon Bibi alias Khaironnesha Bibi is the full sister of Sk. Mojahar, Sk. Mojahar having died issueless, his wife is entitled to get a decree of 1/4th share and Khairon Bibi alias Khaironnesha Bibi being the sister of Sk. Mojahar is entitled to get 3/4th share of the suit property as residuary as per Mohammedan Law. So, this issue is very much vital in coming to the conclusion in respect of the dispute now. The plaintiff having denied the contention of the defendants that Sk. Mojahar had no sister named hairon Bibi alias Khaironnesha Bibi, according to Section 101 read with Section 103 of the Indian Evidence Act, the burden of proof lies upon the defendant who asserts and not upon the plaintiff who has denied the same. The plaintiff having denied the contention of the defendants that Sk. Mojahar had no sister named hairon Bibi alias Khaironnesha Bibi, according to Section 101 read with Section 103 of the Indian Evidence Act, the burden of proof lies upon the defendant who asserts and not upon the plaintiff who has denied the same. In this regard, both the Courts below have made concurrent findings that the defendant is required to prove that Khairon Bibi alias Khaironnesha Bibi is the sister of Sk. Mojahar and in my view, correctly. Upon scanning the evidence, the learned Trial Judge has concluded that the plaintiff is not required to prove the negative factor as per Section 101 of the Indian Evidence Act and the burden of proof lies upon the defendants. It is also observed by both the Courts below that when both the parties have adduced evidence in respect of a particular matter, then it is not of much importance as to upon whom the burden of proof lies and the Court is to analyse the evidence on record to come to a conclusion over the matter in issue. This proposition is also correct when there are enough evidence in this regard. While coming to the conclusion on the issue, the learned Trial Judge has held that the evidence tendered by the defendants in conformity with Section 101 of the Indian Evidence Act is not at all sufficient to come to the conclusion that Khairon Bibi alias Khaironnesha Bibi, D.W.2 is the sister of Sk. Mojahar. The plaintiff has adduced negative evidence in respect of such relationship as contended by the defendant by way of denial statement. This is, in my view, enough for the plaintiff over the matter in issue. But, in order to prove the positive relationship, the defendant has examined three witnesses, i.e., D.W.1, the defendant no.1 himself, D.W.2, the mother of the defendant no.1 being Khairon Bibi alias Khaironnesha Bibi and the D.W.3 another village person to prove the relationship between the Sk. Mojahar and the D.W.2. The D.W.4 is the deed writer of the Hebanama and his evidence appears to be doubtful in view of the fact that he could not state properly when and where the deed of Hebanama was executed. Mojahar and the D.W.2. The D.W.4 is the deed writer of the Hebanama and his evidence appears to be doubtful in view of the fact that he could not state properly when and where the deed of Hebanama was executed. Moreover, he is not at all an attesting witness and so far as the deed of Hebanama is concerned, according to Section 68 of the Evidence Act, the Hebanama requires attestation and as per evidence on record since one attesting witness, namely Sk. Ibrahim being alive and there being no contrary evidence that he cannot be produced and examined in Court, having not been examined and the original deed having not been produced, and it has been alleged that the said deed had been executed by the executant by putting his LTIs, the learned Trial Judge has rightly disbelieved in the contention of the defendants as to the execution of the Hebanama by Sk. Mojahar. It has also revealed from the statement of Khairon Bibi alias Khaironnesha Bibi that Sk. Mojahar died in cancer on October 16, 1992 and he was unconscious at the last part of his life and so, it is difficult to believe that on October 14, 1992 he was able to understand the contents of the deed. The entire burden of proof of the execution of the deed lies upon the defendant no.1. But, he neither produced the deed nor did he examine the alive attesting witness. So, both the Courts below have rightly disbelieved in the matter of execution of the Hebanama under the circumstances stated earlier. The learned Trial Judge, in my view, has rightly held that the D.W.1 & 2 being the interested person, it is difficult to accept their statements to prove the relationship. It may be noted herein that the defendant has failed to produce any convincing document, deed, etc. to prove that his mother, D.W.2 is the sister of Sk. Mojahar. So far as the D.W.3 is concerned, the learned Trial Judge discarded the evidence of the D.W.3 by holding that the D.W.3 did not fulfil the conditions as laid down in Section 50 of the Indian Evidence Act and so, the evidence of the D.W.3 cannot be accepted. to prove that his mother, D.W.2 is the sister of Sk. Mojahar. So far as the D.W.3 is concerned, the learned Trial Judge discarded the evidence of the D.W.3 by holding that the D.W.3 did not fulfil the conditions as laid down in Section 50 of the Indian Evidence Act and so, the evidence of the D.W.3 cannot be accepted. The learned Trial Judge has rightly held in order to make the acceptability of the evidence of the D.W.3 that he had the special means of knowledge to the relationship and he must place before the Court. The conduct of those persons about the relationship on which he has deposed, the evidence of the D.W.3, in my view, has, therefore, been rightly rejected. The D.W.1 & 2 are the son and the mother, who are very much interested to show the relationship but, unless their evidence is corroborated by any independent witness in compliance with Section 50 of the Indian Evidence Act, in my view, the evidence tendered by the defendant no.1 has been rightly discarded by the learned Trial Judge. Above all, had Khairon Bibi alias Khaironnesha Bibi been the sister of Sk. Mojahar, Sk. Mojahar having died issueless leaving the wife and a sister, certainly the distribution of the property of Sk. Mojahar between the plaintiff and the D.W.2 would have been in the ratio of 1:3 as per Sunni School of Mohammedan Law and in that situation, the defendants were not required at all to take steps for execution of a Hebanama to obtain ½ portion of the land by the Hebanama from Sk. Mojahar. So, the circumstantial evidence also does not support the contention of the D.W.1 & 2. The defendant no.1 has deposed that since Sk. Mojahar has no child of his own, he loved the defendant as his own child and on attaining the majority, he provided Sk. Mojahar with food, medicine and other necessity of life. According to him, he bore all the medical expenses of Sk. Mojahar. While the plaintiff has contended that because of suffering forliver cancer, Sk. Mojahar was unconscious of the worldly affairs at the last part of end of his life, the defendant no.1 has contended that on October 14, 1992 when the so-called deed was executed, Sk. Mojahar was of sound mind. Mojahar. While the plaintiff has contended that because of suffering forliver cancer, Sk. Mojahar was unconscious of the worldly affairs at the last part of end of his life, the defendant no.1 has contended that on October 14, 1992 when the so-called deed was executed, Sk. Mojahar was of sound mind. As noted above, it was contended by the defendant no.1 that the deed was executed on October 14, 1992, the P.W.1 has proved the medical papers marked ‘Exhibit-8’ series to show that Sk. Mojahar was suffering from malignant disease. When the D.W.1 was cross-examined about the illness of Sk. Mojahar prior to death, the D.W.1 has replied that he was ignorant about the illness. Sk. Mojahar was suffering from liver cancer. The D.W.3 has stated during the cross-examination that he last saw Sk. Mojahar about one year before his death. Khairon Bibi alias Khaironnesha Bibi, D.W.2 has also admitted that Sk. Mojahar was suffering from cancer and he was unconscious for the last two days before he died and thus, I find that the so-called sister of Sk. Mojahar has admitted the contention of the plaintiff that the Sk. Mojahar was unconscious for two days before he died. So, the contention of execution and registration of the Hebanama before the concerned Sub-Registrar by Sk. Mojahar on October 14, 1992 does not arise and it cannot be believed at all. So, the circumstantial evidence proves that the D.W.1 did not come to Court with clean hands and his claim is based on false statement, deeds, etc. The learned 1st Appellate Court was also in agreement with the learned Trial Court to the effect that the evidence of the D.W.3 as to relationship is inadmissible. In spite of that, the learned Appellate Court has relied on the statement of the D.W.1 & 2 who are none but, the interested persons in support of their defence stand as to the relationship and thus, the learned 1st Appellate Court has misdirected himself in recording that if the plaintiff wants to get a decree, he is to prove his own case and he cannot claim any decree relying upon the defendant’s weakness if any. Such an observation has been made for determination of the relationship, but, in my view, the learned 1st Appellate Court has misdirected himself in applying the general principle in this particular case ignoring the fact that assertion of the fact lies upon the defendant to prove the relationship and not on the plaintiff. When the evidence on behalf of the defendant is scanty for the reasons recorded above, in my view, the evidence of the interested persons, i.e., the D.W.1 & 2 should not have been accepted by the learned 1st Appellate Court. The plaintiff is not required to examine any witness having special means of knowledge by the family members or otherwise to establish that Sk. Mojahar had no sister at all. The negative fact need not be proved by the plaintiff and so, the question of corroboration of the statement of the P.W.1 as to the relationship does not and cannot arise at all. The burden of proof of assertion lies upon the defendant no.1 and not upon the plaintiff to prove the negative factor. The evidence tendered by the defendant no.1 is not sufficient to come to the conclusion that Khairon Bibi alias Khaironnesha Bibi is the sister of Sk. Mojahar. So, in my view, the defendant no.1 has failed to establish that the D.W.2 is the sister of Sk. Mojahar. In that view of the matter, in my view, the learned 1st Appellate Court has committed substantial error of law in coming to the conclusion by declaring the share of Khairon Bibi alias Khaironnesha Bibi by holding that Sk. Mojahar had a sister named Khairon Bibi alias haironnesha Bibi. The learned 1st Appellate Court has committed a substantial error of law in reversing the finding of the learned Trial Judge that the defendant has failed to prove that Sk. Mojahar had a sister. So, the shares declared by the learned 1st Appellate Court cannot be sustained. In that view of the matter, I am of the opinion that the learned 1st Appellate Court has committed substantial errors of law in deciding the issues framed by the learned Trial Judge, by reversing the finding of the learned Trial Judge and the D.W.2 is not the sister of Sk. In that view of the matter, I am of the opinion that the learned 1st Appellate Court has committed substantial errors of law in deciding the issues framed by the learned Trial Judge, by reversing the finding of the learned Trial Judge and the D.W.2 is not the sister of Sk. Mojahar in absence of any positive evidence on behalf of the defendant no.1 and that he has wrongly placed the burden of proof of the negative factor on the plaintiff by ignoring the provisions of Section 101 read with Section 103 of the Indian Evidence Act. Accordingly, in my view, the judgment and decree passed by the learned 1st Appellate Court should be set aside and that of the learned Trial Judge should be affirmed. The appeal is, therefore, allowed. The judgment and decree dated August 31, 2009 passed by the learned 1st Appellate Court stands set aside and the judgment and decree dated September 29, 2006 passed by the learned Trial Judge stands affirmed. Considering the circumstances, there will be no order to as costs.