Patna High Court
Mt. Bibi Saleha And Ors. vs Md. Zakariya Khan And Ors. on 21 December, 1949
Equivalent citations: AIR1950PAT247, AIR 1950 PATNA 247
JUDGMENT Reuben, J.
1. This appeal is directed against a decision of the Additional District Judge of Patna reversing a decree of the Additional Subordinate Judge of Patna. The appellants were defendants 1 to 5 in the suit.
2. The appeal arises out of a suit brought by one Zakariya, respondent 1, for the declaration of his eight-anna share in holding no. 124 in mohalla Bakarganj of Patna City consisting of four blocks of residential houses and seventeen Katras (small shop buildings) formerly belonging to one Bibi Amani Jan, and for a declaration that Amiruddin, the husband of defendant 1 and the father of defendants 2 to 5, did not acquire any title to this property under the registered deed of gift dated 2nd of July 1920, executed in his favour by Mt. Amani Jan. There was also a prayer for confirmation of possession and, in the alternative for recovery of possession. Bibi Amani Jan was the sister of Alamgir Khan, the father of plaintiff Zakariya. She had a sister, Mt. Muhamadi Jan, who had three sons, Amiruddin, who has just been mentioned, Zamiruddin (defendant 6) and Bashiruddin, whose widow is defendant 8. Mt. Amani Jan died in 1936. According to the plaintiff, he succeeded to eight annas share in her property, the other eight annas going to Mt. Muhamadi Jan, who transferred two annas share to defendant 8 and the remaining 6 annas share was inherited by Zamiruddin on the death of Muhamadi Jan. The plaintiff's case is that, after the death of Amani Jan's husband Mian Khan in 1917, her affairs were being managed by Amiruddin, and that he fraudulently got the deed of gift executed by her by giving the impression that it was a mukhtarnama in his favour. The validity of the deed of gift was also attacked on the ground that Mt. Amani Jan remained in possession of the property till her death, and that there was no delivery of possession to the donee as required for the validity of a gift under the Muhammadan law.
3. The defence naturally was that the deed of gift was executed knowingly by Amani Jan, and that, as Amani Jan was treating Amiruddin as her son and he was living with her, there was no delivery of possession by actually vacating the premises, but effect was given to the gift by allowing Amiruddin to get himself registered in the municipal papers as the owner of the house. Also, subsequently, Amiruddin executed a hin hevati mokarari deed in favour of Mt. Amani Jan, who continued to occupy the property in this capacity.
4. The Subordinate Judge dismissed the suit on the 6nding that Amanijan knowingly executed the gift and that effect wag given to the deed sufficient to make it valid under the Muhammadan law. In the year 1936, after the death of Amiruddin, his heirs sued to realise rents from the tenants of the katras. In these suits, on the objection of the tenants that Amani Jan was their real landlord Amani Jan was impleaded and filed a written statement repudiating the deed of gift. The Subordinate Judge held on these facts that, as Amani Jan certainly came to know of the effect of this deed of gift in the year 1936, and as she took no steps to get the deed set aside, the present suit is barred under Article 91 of the schedule to the Limitation Act.
5. In appeal the Additional District Judge reversed the decision and decreed the suit on the finding that the defendants had failed to show that Amani Jan executed the deed of gift,, "knowing it to be such and after the contents thereof had been read and fully explained to her," and further that it had not been established that effect was given to the deed of gift by transfer of possession or by any overt act indicating an intention to transfer possession to Amiruddin.
6. The decision of the Additional District Judge is challenged on five grounds: (1) that the question of limitation was not considered by him, (2) that be misdirected himself regarding the requirements of the Muhammadan law as to the validity of gifts, (3) that his decision is marred by vital errors of record, (4) that he failed to consider material documentary evidence and (5) that, while reversing the findings of the Subordinate Judge, he did not consider the reasons relied upon by the Subordinate Judge for those findings.
7. In order to determine the applicability of Article 91 of the schedule to the Limitation Act, it is necessary to see exactly what the case of the plaintiff is. It is now well established that this article applies to suits in which it is sought to cancel or set aside an instrument which is voidable, and has no application where the instrument which is challenged is void ab initio. The relevant pleadings are in paras. 14 and 15 of the plaint, which I reproduce below :
"That the plaintiff respectfully begs to submit that the said Amiruddin Khan, the ancestor of defendants 1 to 6 was a very cunning, litigious and foresighted person. He had capacity to understand legal matters. He took much undue advantage of his being a near relation of the said Mt. Amani Jan, deceased, and of the confidence she had in him and also of being the manager of the said Musammat and also of her physical and mental weakness and of her being a lady, secretly brought into existence a tamliknama, dated 2nd July 1920, in his own name and secretly making wrong statement before the said Musammat that it was necessary for her to execute a mukhtarnama for the management (of her property) and defrauding her and giving no information to her of the real state of affairs....
That the said deed is by no means valid and legal. The said deed was not read over and explained to the said Mt. Amani Jan nor did she receive any advice with respect to the same. The said Musammat was simpleton and an illiterate pardanashin lady. She had no capacity to understand transaction and she did not understand the effect of the transaction of the gift and mukarrari with life interest etc., nor had she any capacity to understand the same. She did not ask any body to sign for her on the document nor did she ask any one to attest the same as witness nor did she purchase the stamp paper nor she got it purchased by others nor did she ask any one to fair copy the document on the stamp paper nor did any relation of the said Musammat sign and attest the said deed as a witness although the near relations of the said Musammat viz. Ahmad Ali Khan, Mukarram Ali Khan, Ismail Khan, Nazir Hasan Khan, Bashir. Khan and Abdul Karim Khan, own brothers of Mian Khan, deceased, were alive at that time and some of them are alive at this time also. Amiruddin Khan quite falsely defrauded Mt, Amani Jan and fraudulently asked the said Musammat to execute a Mukhtarnama in his favour as it was necessary and without it the work suffered. Amiruddin Khan brought into existence the said tamliknama by practising fraud and by making wrong statement."
According to this pleading, the case is that Bibi Amani Jan, when she executed the document, did not know that it purported to be a deed of gift and did not intend to execute auch a deed, and that, therefore, her mind did not go with the deed and it was not, in fact, her deed. It is a clear pleading that the deed was void ab initio and the relief claimed is expressly confined to a declaration to this effect. It is as follows :
"That it may be determined by the Court that Mt. Bibi Amani Jan did not execute a tamliknama in favour of Amiruddin Khan in respect of the property in suit, that Amiruddin Khan did not acquire any title thereto, and that the principal defendants have not acquired any title to the same by virtue of inheritance of Amiruddin Khan."
8. In support of his contention that Article 91 applies to the suit, the learned counsel for the appellants has referred to several decisions of the Privy Council and one of this Court. Some support is afforded by Gyan Prakash v. Mt. Dukhan Kuar, A. I. R. (25) 1938 Pat. 69 : (173 I. C. 479), where the impugned deed of relinquishment was said to have been executed under the impression that it was a deed handing over the management of the property. It was held in that case that the deed was voidable and not void ab initio and the suit was barred under Article 91. The full facts of the case do not appear from the report, and, in view of the several decisions of high authority bearing on the point, I do not consider it necessary to make any attempt by consulting the original records of the case to ascertain these facts. Atmaram Maneklal v. Bai Hira, 75 I. A. 108 : (A. I. R. (35) 1948 P. C. 111) and Janki Kunwar v. Ajit Singh, 14 I. A. 148 : (15 Cal. 58 P. C.), relied upon by the learned counsel, are cases where the deed in question was found to be a voidable deed. In the former, the findings of the Court were that the respondent signed the document while under the appellants' influence and protection and without independent advice when she was suffering great distress and was unfit to understand how adversely her rights were affected by it, and that in fact she did not understand its meaning and legal consequences. The distinction between this case and the one before us appears clearly from tae following passage, which I cite from Hem Chandra v. Suradhani Debya, A. I. R. (27) 1940 P. C. 134 : (I. L. R. (1940) Kar. P. C. 271) :
"Though there may not be 'a clear understanding of each detail of a matter which may be greatly involved in technicalities'--to use Lord Buckmaster's words--there may still be an intelligent comprehension of the bargain on the part of the lady. In such a case the bargain is good and is good as a whole. But if a feature of the transaction attesting in a high degree the expediency of her entering into it is not understood by the lady, the bargain cannot be divided into parts or otherwise reformed by the Courts as to uphold certain portions of it while rejecting others. Her answer to a suit upon the deed is not that she has an equitable defence to the enforcement of a certain stipulation but that it is not her deed. The protection extended to a person in her situation is protection against being held bound by a transaction which never had her free and intelligent consent."
Here, not merely is it the case that Bibi Amani Jan did not understand an important feature of the transaction, but that she was unaware of the nature of the transaction itself, The transaction, therefore, was ab initio void as against her. In Janki Kunwar's case, (14 I. A. 148 : 15 Cal. 58 P. C.), the deed in question was impugned, on the ground of mental imcompetence, unconscionable bargain and undue influence, and it was found that all the facts relied upon were known to the executant from the date of the deed and he was not shown to be incapable of having that knowledge and of allowing it to operate upon hia mind. The case is obviously entirely different from the one before us.
9. With reference to the finding of the Additional District Judge that Amani Jan had no independent advice, it is urged that the absence of independent advice merely makes the transaction voidable. In support the cases of Gyan Prakash v. Mt. Dukhan Kuar, (A. I. R. (25) 1938 Pat. 69 : 173 I. C. 479) and Atmaram Maneklal v. Bai Hira, (76 I. A. 108 : A. I. R. (35) 1948 P. C. 111), are cited. I have already made my comments on these decisions, and would only cite the following passage from Kalyan Mal v. Ahmad Uddin Khan, A. I. R. (21) 1934 P. C. 208 ; (151 I. C. 45), showing the nature of protection which the Courts give to a pardanashin woman :
"The mere fact that the woman lives in seclusion or sits behind a purdah does not necessarily show that she is weak-minded, ignorant or incapable of understanding her affairs. Any general proposition ascribing to her such incapacity would be at variance with actual facts. It is, however, clear that the Courts, in their anxiety to protect pardanashin ladies, have repeatedly affirmed the doctrine that a person, who is interested in upholding a transaction with pardanashin woman, has to prove, not only that the deed was executed by her, but also that it was explained to, and was really understood by her,"
Here, the Additional District Judge has found that the lady had no independent advice, and, taking all the circumstances into account was not satisfied that she understood the nature of the document which she was executing. In the circumstances, she could not be bound by the document and it is void ab initio against her.
10. This brings me to the second point. Our attention has been drawn to Mt. Naurozi v. Najaf Ali, A. I. R. (26) 1939 Pat. 321 : (184 I.C. 508) and various passages in Amir Ali's and Roland Wilson's books on Muhammadan Law as authorities that, where the donor and the donee are cloaely related and the donee is living with the donor, a physical departure of the donor from the premises affected is not necessary in order to complete a gift. This is exactly the position as it was understood by the learned Additional District Judge. He observed at page 48 of the paper book :
"Exception has, however, been made for cases in which the donor and donee both reside in the same property and have close affinity of blood relationship. All the same, even in a case like this some 'overt act by the donor indicating a fair intention on his or her part to transfer possession and to divest himself or herself of all control over the subject-matter of the gift' is essential for completion of a deed of gift."
And proceeded to consider whether the facts of the case before him brought it within this exception. He found on a consideration of the evidence that the allegation that Amiruddin lived with Bibi Amani Jan was not made out and that, in fact he lived in another house. As regards the transaction of mokarari, he found it to be entirely fictitious and an act of Amiruddin alone without the knowledge of Amani Jan. Amani Jan, he pointed out, was by then an old lady and Amiruddin, as her sole manager, could easily get his name mutated in the Municipal registers and prepare papers by way of rent receipts and so on, indicating that Amani Jan was holding the property as mokararidar under him. The finding being one of fact, it is not competent for us to go into the merits of the matter.
11. Our attention has been drawn to three items as being serious errors of record. First of all, it is said, the Additional District Judge is wrong in stating at page 43 of the paper-book that defendants' witness No. 5 does not say any thing about the document having been read out by the scribe to Amani Jan. We have been taken through the relevant portions of the evidence of the witness. There is no direct statement to the effect that the scribe read the document to Amani Jan, and it was open to the learned Additional District Judge to put his own interpretation on the evidence. I am not prepared to say that the interpretation which he put upon it was incorrect. Besides, as is clear from the passage which I have cited from Kalyan Mal's case, (A. I. R. (21) 1934 P. C. 208 : 151 I. C. 46) the mere reading of the document is not sufficient; the Court must be satisfied that it was understood by her, and no attempt has been made in the evidence to prove this. All that is stated is that the document was read to her. It does not appear that she was a woman of special intelligence or education. The mere reading of the document, therefore, could not be sufficient, For instance, the mere reading of the document was held to be insufficient in Hem Chandra v. Suradhani Debya, (A. I. R. (27) 1940 P. C. 134 : I. L. R. (1940) Kar. P. C. 271), although, in that particular case, both the Courts in India had held that the lady in question had considerable capacity for business.
12. Secondly, it is pointed out that, with reference to Money Suit No. 12 of 1936 instituted by the heirs of Amiruddin for recovery of rent from the tenants of the katras in the suit property, the Additional District Judge was under a misapprehension that the tenants pleaded that Amani Jan was the owner of the property, whereas, in fact, they set her up as the mokararidar in possession and, therefore, entitled to realize the rents as against the plaintiffs in that case who were claiming to be the owners of the property. The point is not of much importance as the defence taken by these tenants has no evidentiary value on the question as to whether the transactions of gift and mokarari were genuine and were given effect to. None of the tenants whose written statement this purports to be appears to have been examined as a witness. It is further clear from a perusal of the judgment of the Additional District Judge that the nature of the pleading was recited in describing the course of events, and that no reliance was placed on it by the Additional District Judge for coming to a decision on the point at issue before him.
13. Thirdly, it is urged that the Additional District Judge wrongly described the rent receipts Exs. C (65) to C (85) granted on behalf of Amanijan as mokararidar to the tenants holding the katras as having been granted by Amiruddin, whereas, in fact, Exs. C (83) to C (85) were granted by one Nokram Ali after the death of Amiruddin. Here, again, the mistake is not one of any consequence. The receipts in question were granted in the years 1934 and 1935 long after the two transactions, namely, the gift and the mokarari, the genuineness of which we are concerned with. The fact that, in granting these receipts, printed forms describing Amani Jan as mokararidar were used does not necessarily prove that she was in fact, a mokararidar. On the plaintiff's case, in her capacity as owner of the property, she was entitled to the rent and the person granting the receipts may not have noticed, or attached importance to, the misdescription in the printed form. As I have already said, these receipts were granted long after the transactions in question and have very little bearing on the genuineness of those transactions.
14. This brings me to the fourth point, non-consideration of material documentary evidence. It is pointed out that there was much documentary evidence on record to show that effect was given to the gift in favour of Amiruddin Khan, that Amiruddin Khan got himself registered in the municipal papers, that there are papers to show that the municipal dues were paid in his name, and further that there are rent receipts purporting to have been granted on behalf of Amani Jan as mokararidar to the tenants of the katras and by Amiruddin Khan to Amani Jan as mokararidar [EXS. C (58) to C (64)]. Stress is particularly laid on the fact that the Additional District Judge does not refer in his judgment to Exs. C (58) to C (64). I do not think that, in view of the finding which was arrived at by the Additional District Judge, the omission to refer expressly to Exs. C (58) to C (64) is of any importance. He has found that, after the death of her husband, Amani Jan's affairs were completely in the hands of Amiruddin Khan. Regarding the payment of municipal dues, he has found that, although the payment was made in his name, the money was actually obtained from Amani Jan, so that she was left with the impression that the money was being paid in her name. As regards the receipts to the tenants of the katras, he has said that Amiruddin "could very easily get the receipts printed in the name of Amani Jan as his mokararidar and grant them to tenants without the knowledge of the illiterate old woman Amani Jan."
Surely, in these circumstances, the failure of the Additional District Judge to give a similar explanation in respect of the rent receipts Exs. C (58) to C (64) is of no consequence.
15. Finally, there is the objection that the reasons relied upon by the Subordinate Judge for his findings have not been considered. The main question for decision before the Subordinate Judge was whether Amani Jan executed the deed of gift knowing it to be such and intending to execute it as such. He commenced by correctly laying down the onus of proof, that it is not sufficient to show that the document was read out to the executant, but it must be proved that she understood its nature and effect, that it is incumbent on the Court when dealing with the disposition of property by a pardanashin woman to be satisfied that the transaction was explained to her, and so on. But, in considering the point, he seems to have lost sight of the weight of onus thrown upon persons who claim under an instrument executed by a pardanashin woman. On a perusal of his decision, it is clear that he has come to his conclusion largely on circumstantial evidence which is quite consistent with the possibility that Amani Jan did not, in fact, understand the nature of the deed that she was executing. He considers, first of all, the age of Amani Jan and concludes that she was about forty four years old, and not sixty three as was suggested on behalf of the plaintiff. Next, he says that Amani Jan was "by no means a (sic) novice in execution of registered documents." Thirdly, he points out that the person who signed on her behalf was her khalera cousin (mother's sister's son) and he also acted as one of the identifiers before the Sub-Registrar. He takes into account that the other identifiers before the Sub-Registrar and attesting witnesses are one of them the son of a neighbour, another a tenant in the suit property and the other two persons who lived a short distance away. Also, another identifying witness is the brother of the pir of Amani Jan's mother. Only one of these persons is alive. He has not been examined as witness. Although he had asserted at the commencement of his judgment that the onus of proof was on the defendants, he accepted without question the explanation of defendant 6 that this person is in collusion with the plaintiff and considers it to be a matter for remark that the plaintiff had not the courage to examine this man. It is on such considerations that the Subordinate Judge felt himself justified in accepting as proving the fact at issue the direct evidence given by defendant 6 and two other witnesses whose names do not appear on the document as having been present at the time of its execution. The evidence of these witnesses has been considered by the learned Additional District Judge and he has further pointed out certain important considerations on which he has based his findings against the defendants. These considerations were entirely lost sight of by the Subordinate Judge, and, to my mind, they form a sufficient answer to the weak reasoning of the Subordinate Judge, and a specific reference to the reasoning of the Subordinate Judge was not necessary. Besides this, I have already referred to the remarks of the Privy Council in Kalyan Mal's case, (A.I.R. (21) 1934 P. C. 208 : 151 I. C. 45) as to whether the mere reading of a document to a pardanashin woman is sufficient, even where she is a woman of special intelligence and education. Here the evidence, even if it is entirely accepted does not go beyond the mere reading of the document. The finding of the learned Additional District Judge, therefore, appears to be entirely justified.
16. For the reasons which I have given above, I consider that this appeal has no merit and must be dismissed with costs.
Sinha, J.
I agree.