Calcutta High Court (Appellete Side)
Mosammat Salema Khatun Bibi vs Sk. Abdul Matleb & Anr on 19 August, 2021
Author: Arindam Sinha
Bench: Arindam Sinha
19.08.2021 Item No. 30 Ct. No. 04 PG S.A. 411 of 2016 r Mosammat Salema Khatun Bibi Vs. Sk. Abdul Matleb & Anr.
Mr. Sibnarayan Chattopadhyay......for appellant Mr. Chattopadhyay, learned advocate appears on behalf of appellant, who was plaintiff and unsuccessful in both Courts below. His client had sought cancellation of hiba-bil-iwaz dated 31 st May, 1974 executed by defendant no. 1 in favour of his wife, defendant no. 2. Consideration for the execution was deferred payment of dower but appellant's case is that the dowry was paid immediately. Hence, the hiba-bil-iwaz was fraudulently executed to deprive appellant from benefit of the subsequent sale deed executed in his favour on 26 th June, 1974 and registered on 28th June, 1974. To query from Court he submits, the hiba-bil-iwaz was registered. He submits further, by cancellation of hiba-bil-iwaz, his client will then have good title under the sale deed.
We have perused judgments of the lower Courts. There has been clear finding on facts that the hiba-bil-iwaz was executed and registered. Subsequent thereto, appellant without causing search, purchased subject matter of the hiba-bil-iwaz for consideration of Rs. 1999/-.
2Section 31 in Specific Relief Act, 1963 provides for when cancellation may be ordered. Sub- section (1) says-
"Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled."
Appellant, on execution of the hiba-bil-iwaz could not have said that the instrument is void or voidable against him. It is only after he got executed his sale deed and thereafter on lapse of seven years he came to Court to say that the hiba-bil-iwaz is void or voidable and if left outstanding, will cause him injury. Appellant may have, subsequent to the registration and execution of the hiba-bil-iwaz, suffered practice of fraud upon him by defendant no. 1 or both defendants but that does not make the hiba-bil-iwaz void or voidable. The trial Court found, defendant no.1 had admitted to selling a different property to plaintiff and the sale deed was drawn up by a deed writer, who is plaintiff's relative. Plaintiff did not depose though she participated in the negotiation, nor did the attesting witnesses to the sale deed. Further finding was defendant no.2 accepted the hiba-bil-iwaz and took possession of the property. 3 Plaintiff had claimed recovery khas possession in the plaint.
Appellant's case of prior execution of the hiba-bil-iwaz to render invalid the subsequent sale deed executed in her favour was disbelieved by both the Courts below.
No question of law arises in the appeal. S.A. 411 of 2016 is dismissed.
(Arindam Sinha, J.) (Saugata Bhattacharyya, J.)