Calcutta High Court (Appellete Side)
Mahasena Khatoon @ Masina Khatun vs Chabi Begam on 7 May, 2025
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Supratim Bhattacharya
SA 407 of 2016
Mahasena Khatoon @ Masina Khatun
Vs
Chabi Begam
For the Appellants : Mr. Amal Krishna Saha
Ms. Sulekha Mitra
For the Respondents : Ms. Somoshree Saha
Judgement Delivered On : 07.05.2025
Supratim Bhattacharya, J.:
1. The appellant has assailed the judgment and decree, passed by the Ld. Civil Judge Senior Divn. 2nd Court Burdwan dated 24.02.2016 passed in Title Appeal No. 38 of 2014, whereby dismissing the said appeal.
2. Factual Matrix As per the plaintiff/respondent According to the respondent/plaintiff the property mentioned in schedule 'A' (the entire property) of the plaint of which schedule 'B' is a portion, previously belonged to the grand-father of the respondent/plaintiff namely Sk. Karim who while in possession of 2 the said property transferred the same through a registered deed of Hiba dated 21.05.1982 and the same was accepted by his wife namely Asia Bibi.
While the said Asia Bibi being the owner and in possession of the said property, transferred four cents out of the said entire property through a registered deed of Hiba dated 23.05.1984 and the remaining two cents by virtue of a registered deed of hiba-bil-iwaz dated 05.11.1986, in favour of the plaintiff and delivered possession to the plaintiff. At the time of registration of the deeds the plaintiff was minor as such the father of the plaintiff represented the plaintiff and acted on his behalf. Since attaining majority the plaintiff is in possession of the same. The defendant No. 1 is the Jathima (Aunt) of the plaintiff who is the appellant herein.
The appellant along with her sons who were residing at village Krishnapur wanted to raise a pucca building and during the end of the year 2005 the appellant approached the respondent to permit her along with her sons to reside in one room that is the suit property so that they can supervise the said construction. The appellant had also expressed that she would leave the said room after completion of the new construction.
The respondent/plaintiff in good faith agreed to the proposal and granted license without any license fee to the appellant 3 /defendant on and from 01.01.2006 in respect of one room which is mentioned in the schedule 'B' of the plaint. As such the appellant/defendant along with her sons are residing in the said room.
It has further been stated that on 24.08.2008 Sk. Md. Rajesh revoked the license and since revocation of the license the said Sk. Md. Rajesh on several occasions requested the defendant to handover possession of the suit property but the defendant did not pay heed to his requests.
According to the defendant/appellant The suit plot being no. 474 of mouja Bahirsarbomongala was owned and possessed as co-sharers by Samina Bibi, the first wife of Sk. Ansar Ali and Sk. Anarul , Sk. Sajahan and Sk. Manirul the sons of Sk. Ansar Ali and Masina Khatun the second wife of Sk. Ansar Ali and Sk. Samser and Nurjan Bibi. According to the defendant Sk. Ansar Ali and Sk. Samser the sons of Asia Bibi had inherited the suit property in equal share and after the demise of Ansar Ali his three sons Sk. Anarul Sk. Sajahan and Sk. Manirul and the two wives namely Masina Khatun and Samina Bibi became the co-sharers of the suit property along with Nurjan Bibi, Samina Bibi and the original plaintiff namely Sk. Md. Rajesh. 4
The defendant has denied the fact that Asia Bibi through a hiba-bil-iwaz dated 05.11.1986 gave some property in favour of Sk. Muhammad Rajesh. It has also been denied that she was granted license by the plaintiff. It has also been denied that the license was revoked by the plaintiff on 24.08.2008.
The defendant has stated that he along with her sons were/are facing enormous difficulties as such requested Samina Bibi and Sk. Samser to make partition of the property but her co- sharers refused to do the same as such the defendant has instituted a suit for partition being Title Suit No. 229/2008.
On behalf of the defendant it has also been stated that the transfer of 4 Sataks (decimal) of land by Asia Bibi in favour of the plaintiff has never been acted upon and Asia Bibi never intended to transfer the said 4 Sataks of land and the said Sk. Md. Rajesh has filed this suit in collusion with his father, scribe and witnesses of the said deed and the said document is forged.
3. Facts before the Trial Court On the basis of the amended plaint and the additional written statement six issues were framed which are as follows:
"1. Whether the suit is maintainable in its present form?
2. Whether the plaintiff has any cause of action to file the instant suit?5
3. Whether the suit is barred by laws of limitation?
4. Whether the suit is bad due to defect of parties?
5. Whether the plaintif is entitled to get a decree as prayed for?
6. Whether the plaintiff is entitled to get any other relief and/or reliefs?"
On behalf of the plaintiff the following persons have deposed-
PW1, Sk. Najimuddin (constituted attorney) PW2, Rasoba Bibi PW3, Sk. Lal Mahammad PW4, Sk. Mansur Ali On behalf of the plaintiff the following documents have been exhibited -
Exhibit-1, Power of Attorney executed by the plaintiff. Exhibit-2, LR Record of rights .
Exhibit-3 Hiba-bil-iwaz dated 05.11.1986 executed by Asia Bibi in favour of Sk. Md. Rajesh in the year 1986 . Exhibit-4 Hiba dated 21.05.1982 executed by Sk. Karim in favour of Asia Bibi.
On behalf of the defendant the following persons deposed - 6
DW1, Masina Khatoon DW2, Ananda Chandra Das, DW3 Hasima Begam.
On behalf of the defendant following documents have been exhibited -
Exhibit-A and A/1, Two original death certificates of Asia Bibi and Sk. Ansar.
Exhibit B series, Quotation issued by WBSEB along with three receipts.
Exhibit -C series, seven electric bills.
Exhibit-D series, seven money receipts of electric bills Exhibit -E series, nine panchayat tax receipts Exhibit -F Certified copy of deed being no. 3621 of 1984 Exhibit -G Certified copy of deed being no. 4437 of 2010 Exhibit -H, Hiba being no. 3620 of 1984.
On consideration of the oral and documentary evidence the Ld. Trial Court has decreed the said suit by passing the following order:
" Hence,
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It is ordered,
that the instant suit be and the same is decreed on contest but without any cost.
The plaintiff do hereby get a decree of khas possession on eviction of the defendant and his family in respect of B- schedule room.
The defendant is directed to hand over the peaceful possession of B-schedule room in favour of the plaintiff within 90 days from the date of this order, failing which the plaintiff shall be at liberty to put the decree in execution."
4. Facts before the First Appellate Court Being aggrieved by and dissatisfied with the judgment of the Trial Court the defendant namely Mahasena Khatoon @ Masina Khatun preferred an appeal being Title Appeal no. 38 of 2014 before the court of the Ld. District Judge Burdwan. Ultimately the said appeal was disposed of by the Ld. Civil Judge Sr. Divn, 2nd Additional Court Burdwan. The said title appeal has been dismissed on contest but without cost by the said judge by passing the following order:
" Hence it is
ORDERED
the title appeal be and the same is dismissed on contest but without costs. The judgment and decree passed in T.S 171/2008 by the Ld. Civil Judge (Junior Division) 2nd Court Burdwan are hereby affirmed. The appellant is directed to vacate the suit property immediately and deliver the possession in favour of the respondent/plaintiff; failing 8 which the plaintiff is at liberty to execute the decree in accordance with law."
Being dissatisfied with the judgement of the First Appellate Court the present appeal has been preferred by the appellant.
5. At the time of admission of the present appeal the following substantial questions of law has been framed which are as follows:
"I. Whether the learned Judge of the Court of Appeal below committed substantial error of law in affirming the findings of the learned Judge of the Trial Court when it is a legal proposition that the power of attorney holder being PW1 cannot depose in place of the principal being plaintiff/respondent in respect of matter on which the principal only have personal knowledge and in respect of which the principal is entitled to be cross-examined or not?
II. Whether the learned Judges of both the Courts below committed substantial error of law in not holding that the "Power of Attorney" was executed after filing of the said suit and consequently the evidence of PW1 is vitiated by law and no reliance can be given on the evidence of PW1 for adjudication of the said suit, or not?
III. Whether the learned Judges of both the Courts below committed substantial error of law in holding with ambiguity that the Heba Deed being Exhibit 3 has not been challenged by the defendant/appellant and the defendant /appellant has no locus standi to challenge the deed as he is barred under Privity of Contract or not?"
6. The Ld. Counsel Mr. Amal Krishna Saha being assisted by Ms. Sulekha Mitra representing the appellant/defendant during his elaborate argument has stated the following:
i) The instant suit is barred by limitation.9
ii) He has further submitted that the alleged hiba-bil-iwaz is a manufactured, collusive, fraudulent document and is a paper transaction.
iii) He has denied the grant of license and has submitted that the appellant is residing in the suit property as a family member of Asia Bibi and on the death of Asia Bibi the appellant inherited the suit property as a co-sharer.
iv) He has further submitted that the plaintiff has not deposed in the suit. A constituted attorney has deposed.
v) The learned counsel has further submitted that the plaintiff has not been able to prove that he has acquired 4 decimal of land in dag No. 474 by virtue of the hiba-bil-iwaz as because the said hiba-bil-iwaz is silent about the area of land transferred through the said hiba.
vi) The iwaz was taken not from the donee instead it was taken from Sk. Samser.
vii) The learned counsel has further submitted that in the hiba-
bil-iwaz executed on 05.11.1986 it has been stated to be given to a minor that is Sk. Md. Rajesh while in the hiba dated 23.05.1984 the said donee namely Sk. Md. Rajesh has been described as major.
viii) The learned counsel has further submitted that Asia Bibi the donor was an old Muslim illiterate woman who is said to 10 have executed the alleged hiba-bil-iwaz. As the donor was an old Muslim illiterate woman so the onus lies entirely upon the plaintiff to prove by cogent evidence that the donor exucetued the siad deed fully understanidng the contents and meaning of the deed.
ix) In support of his contention the learned counsel has relied upon AIR 1963 SC 1203.
x) He has further submitted that the donee has not deposed in this case while his constituted attorney has deposed who has not even been authorized to depose.
xi) The learned counsel has further submitted that the grant of license has not been proved more so the grant of license from the year 2006 is proved to be false in view of the evidence of the defendant that she is residing in the suit property sicne her marriage and paying taxes and other payment since 1999 after the death of Asia Bibi. In support of his contention the ld. counsel has relied upon Paragraphs 14 and 15 of the judgment published in (2010) 10 SCC 512.
Banking upon the aforementioned facts and circumstances the learned counsel has prayed for allowing the instant appeal.
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7. Ms. Somashree Saha, the learned counsel representing the respondent during her argument has submitted that:
i) As per the provision of muslim law hiba-bil-iwaz is in reality an agreement of contract for sale and the same becomes a sale as and when the consideration that is iwaz is paid and thereafter it becomes irrevocable in nature.
ii) She has further submitted that hiba-bil-iwaz was executed by Asia Bibi in the year 1986 and during her entire lifetime she never challenged the said hiba-bil-iwaz.
iii) She has further submitted that the said transaction being a transaction for sale can only be challenged by the parties to the deed and by none other as being the settled principle of law.
iv) The said hiba-bil-iwaz has never been challenged nor a declaration has ever been sought for seeking nullity of the same.
v) She has stressed upon the point that the written statement filed by the defendant is silent in this regard.
vi) She has also submitted that the appellant even after knowledge is silent regarding the genuinety of the same and no evidence has been given in support of the same.12
vii) She has further submitted that this being a question of fact cannot be challenged in this appeal as it does not raise any substantial question of law.
viii) She has further submitted that mere technical error in a registered document does not make a deed invalid which has already been acted upon and presumption in favour of the registered deed cannot be rebutted without cogent evidence against it.
ix) She has further submitted that the said deed (hiba-bil-
iwaz) has been proved by an attesting witness to the said deed.
x) She has further submitted that the DW1 that is the defendant herself has stated during her evidence that she is only guessing that the said deed is manufactured by Md. Rajesh.
xi) She has further submitted a constituted attorney cannot depose on behalf of the principal only when the constituted attorney has no personal knowledge about the act of the principal in that circumstance he cannot ratify the act of the principal however in the present case the power of attorney holder has deposed that he has seen the plaintiff to give license as such he has personal knowledge 13 of the same as such the contention of the appellant does not hold good.
xii) The ld. Counsel has relied upon a judgment of this Hon'ble Court published in (2001) 2 CLJ 475.
Banking upon the aforesaid facts and circumstance the learned counsel has prayed for dismissal of the present appeal.
8. This Court delves into the substantial questions of law framed at the time of admission of the present appeal. As regards to the power of a constituted attorney to depose on behalf of the principal it is fact that if the constituted attorney has the knowledge of the facts in respect of which he is deposing, the said constituted attorney can depose on behalf of the principal. In this present case the constituted attorney namely Sk. Najimuddin has stated during his cross-examination that he was present when permission was given to the defendant orally in the month of January, 2005. Though the year has been wrongly stated to be 2005.
In the power of attorney that is Exhibit-1 it has been stated that "to do all other lawful acts and things relating to the suit ..." this includes deposition by a constituted attorney.
In this context this Court refers to Paragraph No. 28 of the judgment passed by the Hon'ble Apex Court in the case between 14 Manisha Mahendra Gala Vs. Shalini Bhagwan Avatramani published in (2024) 6 SCC 130, which states as follows:
"28. The law as understood earlier was that a general power-of-attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217] , this Court held that the power-of-attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the power-of-attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the general power-of-attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217] in A.C. Narayanan v. State of Maharashtra [A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343] concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217] and clarified that power-of- attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The power-of-attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. ..."15
9. As regards to the hiba-bil-iwaz being exhibit-3 and the hiba being exhibit-H, it is fact that the hiba executed by Asia Bibi in favour of Sk. Md. Rajesh has been exhibited on behalf of the defendant. As the defendant has relied upon the said exhibit as such she had prior knowledge about the same executed on 23.05.1984. There has not been any specific challenge earlier raised by the appellant /defendant as regard to the registered Hiba dated 23.05.1984 (Exhibit-H) though the said Asia Bibi was alive till 06.04.1999. The hiba dated 23.05.1984 bears the thumb impression of Asia Bibi and the hba-bil-iwaz executed on 05.11.1986 also bears thumb impression of Asia Bibi.
The issue of minority of Sk. Md. Rajesh at the time of execution of hiba that is on 23.05.1984 cannot be denied at all keeping in mind that in the hiba bil iwaz executed on 05.11.1986 it has been specifically mentioned that Sk. Md. Rajesh is minor and on his behalf his father Sk. Samser is representing him. In this context this Court relies upon Section 156 of the Mohammaden Law which lays down as follows:
"156. Gift to a minor by a person other than his father or guardian.- A gift to a minor or to a lunatic by a person other than his father or guardian may be completed by delivery of possession to the father or guardian. A gift will also be complete when a minor, who has attained discretion, himself takes possession. "16
So from the aforementioned section it is evident that a gift will also be complete when a minor, who has attained discretion himself takes possession.
This Court relies upon the judgment passed in the case of Mt. Fatma w/o Faiz Mahomed Vs. Mt. Autun w/o Taj Mahomed 1943 SCC Online Sind CC 11: AIR 1944 Sind 195. In Paragraphs 16 and 17 the Hon'ble Court has held as follows:
"16. There is nothing in Mahomedan law or outside it which prevents a minor from accepting a gift or taking possession of property. The principle of Mahomedan law which requires a gift to be completed by a transfer of possession applies equally to moveable and immovable property. No one would contend that a gift of a book or a jewel delivered by the donor to a minor and accepted by the minor was not completed and not valid because it was not taken and accepted by the minor's guardian. There is no reason for holding that the case is different when the property gifted is a piece of land or a house of which a minor has in fact taken possession. It is true that Section 11 of the Contract Act, prevents a minor from effecting a binding contract, and it is settled law, after the decision in 30 I.A. 114, [('03) 30 I.A. 114 (P.C.), Mohori Bibee v. Dharmodas Ghose.] that a contract made with a minor was wholly void. While this disability renders a minor incompetent to act as a transferor, by reason of Section 7 of the Transfer of Property Act, a minor is not incapable of receiving benefits and being a transferee, as he is not "a person legally disqualified to be a transferee" within the meaning of sub-s. (h) of S. 6 of the Act. This is now well settled law and I need 17 only refer to 38 All. 62 [('15) 2 A.I.R. 1915 All. 478 :
38 All. 62, Munni Koer v. Madan Gopal.] and to the very full discussion of the entire subject in the Madras Full Bench case, 40 Mad. 308. [('17) 4 A.I.R. 1917 Mad. 630 : 40 Mad. 308 (F.B.), Raghava Chariar v. Srinivasa Raghava Chariar.] In this case, which was a case of a mortgage executed in favour of a minor who had advanced the whole of the mortgage money, Wallis, C.J. stated:
"It is, I think, clear that before the passing of these connected Acts, the Contract Act and the Transfer of Property Act, transfers by way of sale and mortgage in favour of minors were not void, and I think that if it had been intended to make them absolutely void and of no effect, this would have been done by clear and unambiguous words. On the contrary, the general scheme of the Transfer of Property Act, as appears from the definition, is that minors may be transferees but not transferors, and I do not think the intention of the Legislature to except from this rule the most important classes of transfers by way of sale and mortgage is sufficiently made out."
17. The following extract from the judgment of Abdur Rahim, J., in the same case is particularly in point in the present case:
"It may be that if an infant is of an age when he is unable to understand the meaning of a proposal made to him, the law will not regard his assent to it as a valid acceptance. But I am not aware of any general proposition that an infant is incapable of performing any juristic act whatever, even if he is of sufficient age to understand the meaning and scope of the act. An infant is capable of acquiring property by gift which the law requires must be accepted. It was indeed contended by Mr. Ganapati Ayyar that acceptance of a gift by a minor is not 18 valid. There is, however, no warrant for such a proposition. Section 127 of the Transfer of Property Act, shows that a donee who is not competent to contract--an infant is within that category--can accept a gift even of property burdened with an obligation though he will not be bound by the acceptance, and can repudiate it when he becomes competent to contract: 20 Mad. 147. [('97) 20 Mad. 147, Subramania Ayyar v. Sitha Lakshmi.] "
Thus, when the Said Sk. Md. Rajesh attained majority he obviously took possession of the property gifted to him. Thus, the question of acceptance of the gift is decided.
As regards to onus lying upon the plaintiff to prove by cogent evidence in respect of execution of the deeds in question being executed by Asia Bibi, this Court relies upon the fact that the hiba has been exhibited on behalf of the defendant and the genuinity of the hiba has not been challenged specifically during the lifetime of Asia Bibi who was alive till 06.04.1999. Relying upon the same it cannot be taken otherwise that the hiba-bil-iwaz executed later on by the said Asia Bibi could not have been executed by her. This Court relies upon the evidence of Sk. Lal Mohammad PW3 who has stated during his cross-examination the following:
"I was the witness to this deed. The deed was drafted ar per direction of Asia Bibi. Ali Hossain Middya 19 was the scribe. Md. Mohasen read out and explained the contents of the deed to Asia Bibi. Then Asia Bibi put her L.T.I on the deed. Md. Mahasen identified her . Md. Mahasen also signed the deed as witness. I have seen Asia Bibi put her L.T.I on the deed and Asia Bibi has seen me putting my signature as a witness. This is the said deed. This is my signature as No.2 witness."
The aforementioned evidence of PW3 that is Sk. Lal Mohammad has proved the hiba-bil-iwaz executed by Asia Bibi in favour of Sk. Md. Rajesh on 05.11.1986 beyond doubt.
As regards to non-mentioning of the area of the property gifted by the donor in the hiba-bil-iwaz. It does not effect much as because the boundaries/demarcations have been mentioned in the said deed.
So the hiba-bil-iwaz adduced on behalf of the plaintiff being proved and the hiba being filed by the defendant herself and being exhibited on the prayer of the defendant and not being specifically challenged earlier, puts at rest as regards to both the said two deeds.
In this regard this Court refers to Section 150 of the Mohameddan law. Once the donee accepts the gift and stood by it, a stranger cannot question its validity on the ground of want of 20 delivery of possession. A stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession.
10. The judgment cited on behalf of the appellant published in AIR 1963 SC 1203 is of no help to the appellant as because in the present case the hiba has been exhibited on behalf of the appellant, so the said deed was within the knowledge of the appellant and in spite of having the knowledge the appellant did not challenge the same earlier during the presence of the donor and the donor herself also did not challenge the same in spite of her being alive for more than 12 years since the execution of the deeds.
The other judgment referred to by the appellant being reported in (2010) 10 SCC 512 is not in favour of the appellant as because in the said case there was specific knowledge required, which was not within the knowledge of the constituted attorney but in the present case the constituted attorney has the knowledge of the license, so he is competent to depose.
11. Thus, from the aforementioned discussion it transpires that Sk. Md. Rajesh obtained the suit property through hiba and hiba- bil-iwaz being executed by his grand-mother namely Asia Bibi and license having been proved, this Court is of the view that the judgment passed by the First Appellate Court needs no interference.
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12. Thus, the present appeal being No. SA 407 of 2016 is dismissed.
13. Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court.
14. Urgent certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Supratim Bhattacharya, J.)