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2019 DIGILAW 444 (ORI)

Sk Karan @ Karam Mohammad v. Sk Nur

2019-07-10

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. The legal heirs of defendant no.1 are the appellants against an affirming judgment. 2. Hamida Bibi, the predecessor-in-interest of respondents 1 and 2 as plaintiffs instituted the suit for partition. Plaintiff's case in nutshell is that Danis Mohammed was the common ancestor of the parties. The suit property was recorded in his name. He died on 14.10.1947 leaving behind his widow Surma Bibi and five daughters, namely, Hamida, plaintiff, Rasida, defendant no.1, Hanifa, defendant no.2, Daulat Bibi and Jalikha Bibi. Defendant no.3 is the only son of Daulat Bibi. Jalikha died issueless. After death of Danis Mohammed, the plaintiff and defendants 1 to 3 succeeded to the property. The plaintiff has 1/5th share. After death of Jalikha, her share devolved on her survivors and, as such the plaintiff has 4/15th share. The defendants 1 and 2 have 4/15th share each, whereas defendant no.3 has 1/5th share. But then, her name was not recorded in the M.S.R.O.R.. She filed a Mutation Case No. 928 of 1989 before the Tahasildar, Bhadrak. The appeal was allowed. Against the said order, defendants 1 to 3 filed appeal. The same was allowed. In the appeal memo, it was disclosed that on 13.10.1947, vide Ext.A, Danis Mohammed had gifted the suit property to his wife Surma Bibi. It was further disclosed that Surma Bibi had executed a registered gift deed on 31.10.1947 in favour of Rasida, Jalikha and Daulat Bibi. Danis was in the death bed on 13.10.1947. He died on the next day i.e., on 14.10.1947 and, as such it was not possible on his part to execute the gift deed. After obtaining a certified copy of the gift deed, she came to know that the gift deed was registered on 17.10.1947, vide Ext.B. Danis Mohammed was unconscious on 13.10.1947. He had not executed the gift deed. The deed had not been acted upon. Surma Bibi did not acquire any interest over the suit land. As per the prevalent practice in Muslim community, obsequies (Fatiha) are observed for forty days. Surma Bibi was a pardanashin woman. She did not know how to read and write. Both the deeds are void. Defendant no.4 is a stranger to the family. 3. Defendants 1 to 3 in their written statement resisted the suit on the ground that Danis Mohammed had executed a gift deed in favour of his wife Surma Bibi on 13.10.1947. Surma Bibi was a pardanashin woman. She did not know how to read and write. Both the deeds are void. Defendant no.4 is a stranger to the family. 3. Defendants 1 to 3 in their written statement resisted the suit on the ground that Danis Mohammed had executed a gift deed in favour of his wife Surma Bibi on 13.10.1947. The deed was registered on 17.10.1947. All the daughters of Danis Mohammed including the plaintiff admitted the execution of gift deed. Thereafter, Surma Bibi executed a gift deed on 31.10.1947 in favour of Daulat, Jalikha and Rasida. They are the owners of the suit property. The suit property was recorded in their names. 4. Stemming on the pleadings of the parties, learned trial court framed ten issues. Parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the gift deeds dated 13.10.1947 and 31.10.1947 are not genuine and not acted upon. The plaintiff and defendants have unity of title and possession over the suit land. Unsuccessful defendant no.1 filed Title Appeal No.9 of 1997 before the learned Additional District Judge (Fast Track Court-I), Bhadrak, which was eventually dismissed. It is apt to state here that during pendency of this appeal, respondent nos.2 and 3 died, whereafter the legal heirs of respondent no.2 have been substituted and the name of respondent no.3 has been deleted. 5. The appeal was admitted on the following substantial questions of law:- "1. Whether in view of the admitted fact that scribe and attesting witnesses are dead and the son of the scribe was examined as D.W.3 and had proved Exts. A and B and the documents were produced from proper custody and the deeds are more than thirty years old documents, if the forums below have misdirected themselves in observing that Ext.A was not duly proved ? 2. Whether the forums below have committed error of record in observing that Danish Mohammad was illiterate and had put L.T.I on the document the real fact being that he had put his signature and from the very inception commission of such error of record has led to passing a wrong judgment ? 3. 2. Whether the forums below have committed error of record in observing that Danish Mohammad was illiterate and had put L.T.I on the document the real fact being that he had put his signature and from the very inception commission of such error of record has led to passing a wrong judgment ? 3. Whether in view of the admitted fact that the suit land was recorded in the names of the donees and they have been paying rent of the suit land, paying the Municipal tax in respect of the holding on the suit if such materials on record prove possession and use of the gifted properties prove valid acceptance of the gift by the done and if the forums below have erred in law observing that Ext.A had not been acted upon ? 4. Whether in view of the admitted fact that the plaintiffs had fought before the Settlement authority and in the mutation case, which took place fifteen years prior to filing of the suit and suit was filed in 1991 for declaration that Ext.A was fraudulent if the suit was barred under Section 59 of the Limitation Act ? 5. Whether the factual aspect of the matter to the effect that Danish Mahammad had died before registration of the gift deed dated 13.10.1947 and as per provision of Rule 65 of the Registration Act with consent of the plaintiff and other daughters of Danish Mahammad the said deed was registered on 17.10.1947 and if the forums below misread and misconstrued Ext.A and the plaintiff having given consent for registration of the gift deed dated 13.10.1947 if she is estopped to contend that the deed is fraudulent and such material aspect of matter having not been considered by the forums below if the judgments are sustainable ? 6. Whether in view of the fact that the plaintiff had consented for registration of the gift deed dated 13.10.1947 which was registered on 17.10.1947 and in the M.S.R.O.R. the donees were recorded in respect of the suit properties if the suit filed in 1991 was maintainable and if the right to sue had been extinguished by elapse of 12 years under Section 27 of Limitation Act which aspect of the matter has not been considered by the forums below resulting thereby miscarriage of justice ? 7. 7. Whether the observation of the learned lower appellate Court to the effect that subsequent conduct of the parties cannot validate the deed is erroneous and unacceptable." 6. Heard Mr.Alok Kumar Mohanty, learned Advocate for the appellants, Mr.Ramakanta Mohanty, learned Senior Advocate for respondent nos.1 and 2 and Mr.Dwarika Prasad Mohanty, learned Advocate for respondent no.5. 7. Mr.Mohanty, learned Advocate for the appellants submitted that Danis Mohammed had executed a gift deed on 13.10.1947, Ext.A, in favour of his wife Surma Bibi. Danis Mohammed put his L.T.I. The said deed was registered on 17.10.1947. The plaintiff and other daughters of Danis Mohammed were witnesses to the said deed. The plaintiff is estopped to challenge the deed. If Danis Mohammed was unconscious, then it is highly inconceivable that he would put his L.T.I. in Ext.A. He further submitted that Surma Bibi became the absolute owner of the suit property. She executed a registered gift deed on 13.10.1947 in favour of three daughters, namely, Daulat, Jalikha and Rasida. The gift deeds are genuine and acted upon. There is no unity of title or possession. No fraud has been played on registration. The statement made by D.W.1 in his cross-examination that Danis Mohammed was unconscious at the time of execution of the gift deed, cannot be relied upon in view of the impeccable evidence on record that Danis Mohammed had executed a gift deed after fully understanding the same. Exts.A and B being the documents of more than 30 years, no formal proof is necessary. 8. Conversely, Mr.Mohanty, learned Senior Advocate for respondents 1 and 2 submitted that defendant no.3 had been examined as D.W.1. In his cross-examination, he has admitted that Danis Mohammed was bed-ridden and died on 14.10.1947. Ten to fifteen days prior to the execution of the gift deed, he was bed-ridden and unconscious. The evidence of D.W.1 belies the story of execution of the gift deed. He further submitted that the Muslim obsequies are observed for forty days (Fatiha). During that period, the plaintiff did not come. Ext.A is a fraudulent one. Both the courts below came to the conclusion that Ext.A was vitiated by fraud. The conclusion is irresistible that Danis Mohammed had not executed the gift deed on 13.10.1947. Surma Bibi had not acquired any title over the suit property. During that period, the plaintiff did not come. Ext.A is a fraudulent one. Both the courts below came to the conclusion that Ext.A was vitiated by fraud. The conclusion is irresistible that Danis Mohammed had not executed the gift deed on 13.10.1947. Surma Bibi had not acquired any title over the suit property. Thus, Ext.B, the registered gift deed dated 31.10.1947 alleged to have been executed by Surma Bibi, is of no value. Learned Advocate for respondent no.5 has supported the judgments. 9. The principle governing the execution of deed by an illiterate woman is well known. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, (1963) AIR SC 1203, the apex Court held thus: "In India paradahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as by the pardah system they are practically excluded from social intercourse and communion with the outside world. XXX XXX XXX It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not. XXX XXX XXX In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, (1870) 13 MooIndApp 419 (PC) the Privy Council held that as regards documents taken from pardahnashin women the court has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a paradahnashin woman. XXX XXX XXX The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial." 10. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial." 10. The principles which govern the proof of execution of documents taken from pardahnashin woman equally apply to the documents taken from an illiterate woman as has been held by this Court in Agadhei Malikani and another v. Abhimanyu Mallik and others,1968 ILR(Cut) 576. 11. Reverting to the facts and keeping in view of the law laid down by the apex Court in the decisions cited supra, this Court finds that D.W.1 in his cross-examination had stated that Danis Mohammed was bed-ridden and died on 14.10.1947. Ten to fifteen days prior to execution of the gift deed, he was bed-ridden and unconscious. Mr. Mohanty, learned Senior Advocate for respondents 1 and 2 rightly submitted that the evidence of D.W.1 belies the story of execution of gift deed by Danis Mohammed. Further, Muslim obsequies are observed for forty days (Fatiha). It is highly inconceivable that the plaintiff would go to the office of the Sub-Register to be a witness to the said deed which will ultimately deprive her from the suit property. Both the courts concurrently held that Ext.A was vitiated by fraud. There is no perversity in the said finding. Thus, Surma Bibi had no title over the land. In view of the same, the registered gift deed dated 31.10.1947 said to have been executed by Surma Bibi cannot confer title. 12. In the mutation appeal, the plaintiff came to know that execution of the alleged gift deed by Danis Mohammed and Surma Bibi, vide Exts.A and B. Thus, the suit was within the prescribed period of limitation. The R.O.R. neither creates title nor extinguishes title. The substantial questions of law are answered accordingly. 13. In the result, the appeal fails and is dismissed. There shall be no order as to costs.