Gauhati High Court
Rafique Ahmed & 5 Ors vs Musstt. Jorgina Rahman & Anr on 8 September, 2015
Author: N.Chaudhury
Bench: N.Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RSA No. 59 of 2011
1.On the death of Suraiya Begum, her legal heirs
1(a) Rafique Ahmed
1(b)Safique Ahmed
Both sons of late Arfan Ali
Residents of Machkhowa, Guwahati-1
1(c) Mrs. Nasreen Begum
Wife of Md. Kamrup Haque, resident of Dhubri
District:Dhubri
1(d) Mrs. Parveen Sultana
Wife of Dr.Rozibin Yusuf
Presently residing at Pining, Malayasia
2.Musstt. Jahanara Begum
Daughther of late Ahidul Haque
Residents of Hedayatpur, Guwahati-3
3. Musstt Shamasadara Begum @ Haque
RSA No. 59 of 2011 Page 1 of 43
Wife of Late Tabibur Rahman
Resident of Dr.B.Barooah Road, Guwahati
Assam
.... Appellants/Opposite parties
-Versus-
1. Musstt Jorgina Rahman
Wife of Late (Dr.) Ataur Rahman
Resident of Gandhibasti, Guwahati-3
Dist-Kamrup, Assam
2. Mrs.(Dr.) Farida Begum
Wife of Md. Makibur Rahman
Resident of MS Road, Tokobari, Guwahati-1
Dist-Kamrup, Assam
.......... Respondents/Appellants
PRESENT HON'BLE MR. JUSTICE N.CHAUDHURY For the Appellants : Mr.D Mozumdar, Sr. Adv., Mr. T Baidya,Adv.
For the Respondents : Mr. S Ali, Mr. R Baruah, Advs.
Date of hearing &
RSA No. 59 of 2011 Page 2 of 43
Date of Judgment : 08.09.2015
JUDGMENT AND ORDER(ORAL)
The second appeal has been preferred by the plaintiff of Title Suit No.267 of 2006 of the court of learned Munsiff No.2, Kamrup, at Guwahati. The learned Munsiff by his Judgment and decree dated 25.4.2008 decreed the suit in favour of the plaintiffs but Title Appeal No.15 of 2008 preferred by the defendants in the court of learned Civil Judge No.2, Kamrup, Guwahati was allowed dismissing the suit of the plaintiff in entirety. Aggrieved at the appellate decree dated 20.12.2010, the plaintiff has approached this court preferring the present second appeal.
2. Suraiya Begum and three others as plaintiffs instituted Title Suit No. 204 of 1995 in the Court of learned Assistant District Judge at Guwahati praying for declaration of their right, title and interest and for injunction against the defendants who are three in numbers. The plaintiffs claimed that suit land described in the schedule to the plaint fell in their share and they have joint right, title and interest and possession over the same. It is further stated in the plaint that father of the plaintiffs Late Hafiz Ohidul Haque married Saira Khatoon(mother of the plaintiffs) who on turn is the daughter of one Nur Mohammad. Nur Mohammad had two sons namely, Ghulam Rabbi and Khalilur RSA No. 59 of 2011 Page 3 of 43 Rahman and one daughter Saira Khatoon. Khalilur Rahman died unmarried and so properties left by Nur Mohammad was divided between the predecessor of the defendants, namely, Ghulam Rabbi and the mother of the plaintiffs, Saira Khatoon. The plaintiffs also claimed that they inherited share of Ghulam Rabbi as per provision of Mohemmedan Law. Original owner Late Nur Mohammad is stated to have landed properties at M.S.Road, Tokobari in the city of Guwahati and also at village Kutikuchi, Odalbakara at village-Dakhingaon within the district of Kamrup. After land value of all areas had arisen high and after the family had expanded, dispute arose among them and to resolve the same and to prevent it from going to the uncontrollable position, they decided to go for partition of the properties left by their predecessor in interest. Accordingly with a view to maintaining amity and peace in the family, plaintiffs and defendants partitioned the properties left by their predecessor in interest late Nur Mohammad by a registered deed dated 5.4.1973 vide No. 4246. In the said deed, plaintiffs were shown as one party and the defendants were shown as the other party. At the time of the execution of the deed, neither Saira Khatoon nor Ghulam Rabbi were alive and that the properties were divided as per their respective shares. In the deed, the properties of the share of each of the defendants were shown separately in the schedule -'Ka' to 'Jha'. While schedule 'Ka' land fell in the share of defendant No.1, Mustt. Jinnatnessa, the same in schedule fell in the share of Mustt. Jarjina Rahman, defendant No.2. Similarly, land of schedule 'Ga' fell to the share of Dr. Farida Begum, defendant No. 3 . On the other hand, land described RSA No. 59 of 2011 Page 4 of 43 in schedule 'Gha' 'Unga', 'cha, 'Chha' fell to the shares of plaintiffs No. 1 to 4. However, land described in the schedule 'Ja' to the deed fell to the share of defendants No. 1 to 3 jointly in ejmali and the land of schedule 'Jhha" went to the share of the plaintiffs jointly. It was mentioned in the deed itself that the defendants No. 1, 2 and 3 would enjoy schedule 'Ja' land in equal shares and that of schedule 'Jhha' would be enjoyed by plaintiffs No.1 to 4. Out of total land measuring 3 Bighas 3 Katha covered by dag No.38 of K.P. Patta No.11 of village-Dakhingaon under Mouza Beltola, plaintiffs No. 1 to 4 got 2 katha 5 lechas of land each and the defendants No. 1, 2 and 3 got 3 kathas of land. The land covered by dag No.38 of K.P. Patta No.11 is the suit land. It is further stated that although there was perfect partition case among the parties but there was no such perfect partition case for land covered by K.P. Patta No.11. The parties were enjoying and possessing their respective shares separately without being interfered by others. The defendants sold the land of other dags of Patta No.11 after increase of the price of the land and plaintiffs also sold some of their land. But land covered by dag No.38 was not sold by either of the parties. Plaintiffs claimed that they constructed boundary fencing covered their share of land and so did the principal defendants in respect of their share in the land. However, land on dag No.38 remained vacant all along and nobody made any construction on the same. Subsequently, the defendants started defying the rights of the plaintiffs arising from the partition deed and other land. Under such circumstances, plaintiffs had instituted another suit being Title Suit No. 23 of RSA No. 59 of 2011 Page 5 of 43 1995 and the same was pending for disposal at that time. In the meantime on or about 10.9.1995 when the plaintiffs decided to erect pacca fencing around their share of the land, the plaintiffs visited the land and found that the original fencing erected by them were broken due to natural wear and tear. They sent one Safique Ahmed , son of plaintiff No. 1 with labourers on 17.9.1995 to construct a permanent fencing around 9 Katha of land jointly held by them but defendants more particularly, defendant No. 3 obstructed the son of the plaintiff No. 1 and did not allow him to demarcate the land. Defendants openly defied the possession of the plaintiffs over the share and there was dispute between the parties. It is under such circumstances, the right, title and interest of the plaintiffs over the suit land became clouded. According to the plaintiffs, they are entitled to half portion of the land in accordance with the deed dated 5.4.1973. They, therefore, by instituting the suit made prayer for decree of declaration of their right, title and interest over the suit land and also for confirmation of possession. In the alternative, it is prayed that if they are found to be out of possession then the suit may be decreed for khas possession by evicting the defendants , their men and employees etc. The plaintiffs also prayed for decree for permanent injunction and other relief.
3. On being summoned defendants appeared and submitted a joint written statement wherein apart from taking the usual objection as to maintainability , lack of cause of action, bar of limitation, non payment of proper court fee and waiver estoppels, acquiescence etc. the defendants raised the objection that the RSA No. 59 of 2011 Page 6 of 43 suit is barred under Order II Rule 2 of the Code of Civil Procedure in view of previously instituted Title Suit No.23 of 1995. The defendants denied the averments of facts made in the plaint and also stated some of their own facts. In paragraph-8 of the written statement, the defendants apart from denying statements made in paragraph-1 of the plaint stated that suit land is self acquired property of the predecessor of the defendants Late Khalilur Rahman and Ghulam Rabbi. These two persons had purchased the suit land from the original owner by registered sale deed bearing No.92/1945 on 17.1.1945. Khalilur Rahman died issueless and his wife had pre-deceased him. He therefore made oral gift of his unpartitioned share in favour of Ghulam Rabbi on 20.8.1945 by making declaration to that effect in presence of witnesses accompanied by delivery of possession. Late Ghulam Rabbi accepted the gift and thus became lawful owner of the suit land. Defendants have all along been possessing the same and the plaintiffs were never in possession of any part of the suit land. Apart from the suit land, Khalilur Rahman and Ghulam Rabbi purchased another plot of land measuring 4B covered by Dag No. 63/64 of Kheraj periodic patta No.17. Out of this land, the defendants sold 4 B of land to different purchasers in the year 1995 and delivered possession to them. Plaintiffs being fully aware of the same did not make any reference in the plaint. Defendants specifically made averments in paragraph-3 of the plaint . Properties left by Nur Mohammad was divided among Khalilur Rahman , Ghulam Rabbi and Saira Khatoon . Coming to the averments made in paragraph-5 of the plaint in regard to execution of the RSA No. 59 of 2011 Page 7 of 43 partition deed on 5.4.1973, the defendants specifically denied the averments made in paragraph-10 of the written statement and described the deed to be a sham one. According to the defendants such partition was never acted upon by either of the parties and that the plaintiffs were in occupation of the land more than they are entitled to. Defendants claimed that they have been jointly possessing the suit land measuring 3 Bigha 3 Katha since the days of their predecessors-in-interest to the exclusion of others. Defendants also denied the statements that land covered by Dag No38 was lying vacant and that neither of the parties have raised structure except putting boundary fencing etc. Defendants claimed that they had constructed house which are in existence since 1973. In paragraph-15 of the written statement, defendants claimed that neither of the parties acted upon the terms of purported deed of partition and the plaintiffs themselves repudiated the terms of the deed. The averments made in paragraph-11 of the plaint in regard to admission by plaintiffs to raise pucca fencing around the suit land, and of offering resistance by defendant No. 3 were also denied by the defendants. They asserted that plaintiffs are not entitled to any share of the suit land and that they had no manner of possession at any time over the same. With these averments on facts, defendants prayed that the suit of the plaintiffs be dismissed with compensatory cost under Section-35 A of the Code of Civil Procedure.
4. The court of learned Munsiff No.2, Kamrup, at Guwahati in whose court case was pending framed the following issues:
RSA No. 59 of 2011 Page 8 of 43
(i) Whether the suit is maintainable in its present form?
(ii) Whether there is cause of action for the suit?
(iii) Whether the suit is barred by limitation?
(iv) Whether the plaintiff has right title and interest over the suit land?
(v) To what relief the plaintiffs are entitled to?
5. In the meantime, because of amendment of The Bengal, Bihar, Agra & Assam Civil Courts Act, 1887, pecuniary jurisdiction of Munsiff was enhanced and consequently the suit stood transferred to the court of learned Munsiff No. 2 at Guwahati. Upon such transfer, suit was re-numbered as Title Suit No.267 of 2006.
6. Plaintiffs examined three witnesses, namely, Rafiqul Ahmed as PW-1, Md. Sahzahan Ali Talukdar as PW-2 and Pabitra Kr. Das as PW-3. They adduced Exhbiit-1 to 7 documents. Defendants examined as many as five witnesses and adduced documents Exhibits-'Ka' to 'Cha'. Upon consideration of these materials , learned trial court by his judgment dated 25.4.2008 decreed the suit of the plaintiffs in entirety. The learned trial court held that the suit of the plaintiffs is maintainable, that it has cause of action , that it is not barred by limitation. Coming to Issue No. 4 which is the crux of the dispute, learned trial court held that plaintiffs inherited suit property from their mother by virtue of partition deed RSA No. 59 of 2011 Page 9 of 43 Exhibit-1 and that their possession of the suit is ejmali which is evident from Exhibit-3. Learned Munssiff noted that the names of the plaintiffs were mutated in jamabandi vide Exhibit-Gha (ii), PW-3 proved Exhibit-1 and it was admitted into records without objection. But certified copy of a deed has been proved by examining PW-3 , the official of the concerned Sub-Registry. PW-2 deposed as to how the suit land was mutated and that the defendants did not raise any objection. Considering the written statement and the evidence of PW-1, learned trial court also noted that vide Exhibit'Gha' sale deed, Ghulam Rabbi and Khalilur Rahman had purchased the suit land. Khalilur Rahman is stated to have made oral gift on 20.8.1945 in respect of his share to the husband of DW-1 and delivered possession. But DW-1 in course of cross-examination stated that she was not aware of the recital of her examination-in-chief and that the same was written at the instance of her son-in-law DW-4. Similarly, DW-1 could not give the date of execution of gift or as to whether any other witness was present when the gift was made. The learned trial court held that written statement is silent about names of witnesses in whose presence the alleged oral gift was made. One Abu Bakar Siddique was examined as a witness of the gift who could not say the day, time and year of making the gift. On the other hand, PW-4 merely stated that he heard about the gift from his mother-in-law . With these observations, the learned trial court held that gift was not believable. The learned trial court considered the averments made in Exhibit-1 partition deed and held that defendants are parties to it and that DW-1 in her cross-examination RSA No. 59 of 2011 Page 10 of 43 admitted to have put her signature in the partition deed to show that it was done by perpetrating fraud. Defendants' side did not adduce any evidence to prove fraud and even did not pray for cancellation of the partition deed which was signed by them. These defendants are graduate and one of them is a doctor. Besides, Exhibit-2 deed was signed by DW-1. Considering all these aspects of the matter, the learned trial court arrived at the opinion that the allegation of fraud made by defendants is not believable and so held that the plaintiffs got right, title and interest over the suit land. With these findings, Issue No. 5 was decided in favour of the plaintiff and thereupon suit of the plaintiff was decreed in entirety with cost.
7. This judgment dated 25.4.2008 passed by the learned trial court decreeing the suit of the plaintiff was brought under challenge before the learned first appellate court vide Title Appeal No.15 of 2008. The learned first appellate court proceeded to decide the issues afresh without framing any point for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. Since, Issue No. 4 is the crux of the dispute between the parties as it relates to claim of right, title and interest of the plaintiffs, same was taken up for decision before any other issue. The learned first appellate court considered the law of gift under the Mohemmadan Law and considered the evidence of DW-1. PW-1 being aged about 78 years of age supported the case of appellant saying that Khalilur Rahman and Ghulam Rabbi had purchased the suit land in the year 1945. Khalilur Rahman died in the year 1946 and that after his death Ghulam RSA No. 59 of 2011 Page 11 of 43 Rabbi and Saira Khatoon became the owner of the land. But Khalilur had gifted away his share of the land to Ghulam Rabbi orally. She however, could not remember as to whether any other person was present at the time of making oral gift. The learned first appellate court laid emphasis on the deposition of Abu Bakar Siddique who was 75 years of age. At the time of deposition he claimed that in the month of Shravana / Bhadra in English calendar year 1945, late Khalilur Rahman had gifted 3 ½ B of land to Ghulam Rabbi and that late Babulal , late Abu Sarif and Jinnatunnessa were present at the time of making gift and Ghulam Rabbi accepted the gift and took over possession of the land from Khalilur Rahman. Although Abu Bakkar Siddique could not state the date, month and time of the gift but he claimed that after the gift was made he and other witnesses were taken to the gifted suit land . According to the learned first appellate court, other witnesses of the plaintiffs is irrelevant for the present matter. But it was held by the learned first appellate court that the discrepancies arising from the evidence of PW-1 have no bearing in the case so far as merit is concerned. It is absolutely natural that a witness cannot depict a photocopy of an incident that took place 59 years ago. The learned first appellate court did not find favour with the learned trial court. Jinnatunnessa had stated in course of cross examination that she had no knowledge about the contents of examination in chief but according to the learned first appellate court, cross examination is an unequal duel between an astute lawyer and a rustic. With these observations, it was held that trial court erroneously oriented itself while interpreting the RSA No. 59 of 2011 Page 12 of 43 evidence on record pertaining to the factum of gift. The learned first appellate court was of the view that evidence of Jinnatunnessa and Abu Bakkar Siddique inspired confidence and there was nothing in their evidence to hold that they deposed falsely and so it was proved that Khalilur Rahman indeed made an oral gift in favour of Ghulam Rabbi.
8. Vide paragraph-20 of the appellate judgment, the learned first appellate court proceeded to construe Exhibit-1 deed a family settlement and felt that the real question was whether Exhibit-1 family settlement is a forged one. It is held that respondents are signatory to Exhibit-1 and that it was executed in the year 1973. After so many years, the appellant claimed that self acquired property of Khalilur Rahman and Ghulam Rabbi was illegally inherited into Exhibit-1. But without going to decide as to whether the deed was a forged and fraudulent one as proposed at the threshold , learned first appellate court thereafter shifted to proposition that Mohammedan Law of inheritance is applicable to both parties and even if it is presumed that there was no gift in favour of Khalilur Rahman even then a brother is entitled to donate the amount what his sister would inherit. So Exhibit-1 is illegal one because admittedly it is done contrary to the tenets of Mohammadan Law. By so holding the learned first appellate court arrived at the finding that by making partition of the properties through Exhibit- 1, fraud was perpetrated. There is no evidence that land is ancestral property left behind by Nur Mohammad. Although respondents claimed that Suraiya Khatoon also inherited share on death of Khalilur Rahman but it was not acceptable. By RSA No. 59 of 2011 Page 13 of 43 making calculation in regard to partition from Exhibit-1, the learned first appellate court held that it was against Mohammedan law and therefore illegal and not enforceable in law. Consequently, respondents cannot take right, title and interest over the suit land on the basis of Exhibit-1. After deciding Issue No. 4 in favour of the appellants/defendants and against the plaintiffs, the learned trial court held that the suit of the plaintiffs is not maintainable and that there is no cause of action . Of course the suit was not barred by limitation and that the plaintiffs are not entitled to any relief. Consequently, the appeal was allowed and the judgment and decree passed by the learned Munsiff No. 2 on 25.4.2008 was set aside dismissing the suit of the plaintiffs in entirety. This appellate judgment dated 20.12.2010 has been called in question in the present second appeal.
9. This court while admitting the appeal on 25.2.2011 framed the following substantial question of law:-
"Whether a partition deed executed in violation of Mohemmedan Law is enforceable and whether the executants of the said deed could be permitted to challenge its validity after expiry of more than 30 years of the execution."
It appears that the appeal was subsequently heard on various dates and on one such occasion, this court framed another substantial question of law on 9.4.2015 and the same is quoted below:-
RSA No. 59 of 2011 Page 14 of 43
" Whether the first appellate court had properly interpreted the Exhibit-1 document in accordance with law"
Thus, this appeal is based on the aforesaid two substantial question of law framed by this court on two different dates and accordingly, the learned counsel for the parties have put forward their respective arguments.
10. I have heard Mr. D Mozumdar, learned senior counsel assisted by Mr. T Baidya for the appellant and Mr. S Ali learned counsel assisted by Mr. R Baruah for the respondents. I have perused the pleadings of the parties and the respective evidence adduced by them both oral and documentary.
11. Mr. D Mozumdar, learned senior counsel appearing for the appellants submit that defendants having admitted execution of Exhibit-1 are estopped from challenging its validity and so there is no question of holding the same deed as illegal or fraud. According to Mr. Mozumdar, the learned first appellate court went beyond the pleadings of the parties in holding the deed to be fraudulent inasmuch as there was neither any issue before the court to that effect nor did the defendants challenge the validity of Exhibit-1 in their written statement. The defendants did neither deny execution of Exhibit-1 nor did they institute the counter claim for adjudging Exhibit-1 illegal, fraudulent or inoperative. Once such an allegation would have been there, the burden would have been on the defendants to establish such fraud or illegality. But in the absence of any averments in the written statement to that effect, the learned first appellate RSA No. 59 of 2011 Page 15 of 43 court was not at liberty to decide the same adjudging Exhibit-1 as illegal and fraudulent . Mr. Mozumdar, learned senior counsel further argued that oral gift is a subsequent plea and is after thought, as never before the defendants had made any reference to the same. Even by their own saying defendants have proved that after the death of Khalilur Rahman, names of plaintiffs predecessor as well as Ghulam Rabbi were brought on the records of rights vide Exhibit-Gha. In Exhibit-Kha , it is merely stated that name of Khalilur Rahman is deleted. In the year 1973 itself, plaintiff got her name mutated in the records of rights but defendants did not raise any objection in regard thereto . Rather, it is stated in the cross examination of DW-1 that no challenge was made against the mutation of Suraiya Khatoon in the records of rights. According to Mr. Mozumdar, there being no averment in the Exhibit-1 as to oral gift and Exhibit-1 having been admittedly executed by the defendants, it is to be noted that no such oral gift was there in any point of time. Even in the written statement, defendants have failed to give any explanation as to why they did not make any mention of oral gift in Exhibit-1 deed. Mr. Mozumdar further argued that Exhibit-1 is a deed of family settlement and it does not require to be made as per entitlement of the parties under Mohemmedan law. A deed of family settlement is prepared as per convenience of the parties and having executed the same, the defendants are not entitled to resile from the same. He further argued that Abu Bakar Siddique DW-3 was the only witness present at the time of alleged oral gift. Admittedly he was hardly 16/17 years of age at that time and in reply to a specific question put RSA No. 59 of 2011 Page 16 of 43 to him, he stated that incidents of that period are not in his memory. This itself is indicative of the fact that DW-3 was not believable in so far as it relates to the plea of oral gift.
12. Per contra, Mr. S Ali, learned counsel appearing for the respondents would argue that the Exhibit-1 being basic document of title on behalf of the plaintiffs, the validity of the same is a relevant question arising in this appeal. The learned first appellate court being the last court of fact and law considered Exhibit-1 and noticed that the partition made by Exhibit-1 is contrary to the tenets of Mohammedan Law. Independent of whether there is oral gift or not, a female heir is entitled to half of the male sibling but in Exhbit-1 the legal heirs of Saira Khatoon are shown to have inherited 50% of the property and so this is in clear violation of the tenets of Mohemmedan Law. Parties merely by signing a document cannot go contrary to the provision of law and so Exhibit-1 is vitiated for violation of Mohemmedan Law as well as by dictate of Section 23 of the Indian Contract Act. Defendants having described Exhibit-1 as sham document were not required to describe the same as illegal or forged and there was no requirement for making any prayer for adjudging the same as illegal and fraudulent. The plaintiffs on their own saying described the suit property to be an ancestral property left behind by Nur Mohammad and led evidence on the basis of such proposal only. Even after Exhibit-Gha sale deed was brought into record to show that suit land was purchased by Khalilur Rahman and Ghulam Rabbi jointly even thereafter plaintiffs did not amend their plaint but without doing so RSA No. 59 of 2011 Page 17 of 43 shifted their version and started claiming inheritance from Khalilur Rahman merely by denying the oral gift., According to Mr. Ali, Exhibit-1 had neither been proved in accordance with law nor are the contents thereof proved by plaintiffs. Exhibit-1 is a photocopy of a certified copy and so the plaintiffs were duty bound to prove the contents . According to him, merely by obtaining mutation in the record of rights, the plaintiffs cannot acquire any title to the suit property and so Exhibit-1 is prima facie illegal, violative of the tenets of Mohemmedan Law. Plaintiffs did not acquire any right, title and interest over the suit land . The learned first appellate court has not committed any error in dismissing the suit of the plaintiffs by allowing the first appeal.
With these arguments Mr. Ali claimed that substantial questions of law are liable to be decided in favour of the respondents and the appeal preferred by plaintiffs is liable to be dismissed.
13. It needs to be mentioned here that in paragraph-20 of the impugned appellate judgment, the learned appellate court has expressed the view that a question does arise as to whether Exhibit-1 is a forged document. It has been held in the same paragraph that by making partition of properties through Exhibit-1 fraud was perpetrated. The learned first appellate court also held that Exhibit-1 is against the Mohemmedan Law and it is therefore illegal and not enforceable in law. The first appellate court has basically dwelt on the question as to whether Exhibit-1 was forged or fraudulent. It is not clear as to why such a question did arise in the present case more particularly when neither of the RSA No. 59 of 2011 Page 18 of 43 parties made any pleading to that effect. The plaintiffs made mention of this document as partition deed in paragraphgraph-5 of the plaint. It is the case of the plaintiffs that after the increase in value of land in an around Guwahati and after expansion of the families of the plaintiffs and the defendants, a family dispute did arise between them which went to uncontrollable position in some respects. This is why the parties decided to partition the properties left by their predecessor in interest. Accordingly with a view to maintaining amity and peace in the family, they partitioned the properties left by their original predecessor in interest by a registered deed of partition being No.4246 dated 5.4.1973. The properties were divided as per their respective shares and entitlement of each of the parties to the document were shown under Schedule 'ka' to 'jha'. In paragraphgraph-6 of the plaint, the plaintiffs pleaded that as per recital of the partition deed referred to above, the plaintiffs No.1 to 4 got 2 k 5 L of land in Dag No.38 of K.P. Patta No.11 of village Dakhingaon and each of the defendants No. 1, 2, and 3 got 3K of land. The defendants have replied to these averments in paragraph-10 and 11 of the written statement. By denying the averments made in paragraphgraph-5 of the plaint, it was stated at the last part of paragraphgraph-10 of the written statement that the aforesaid partition deed was a sham deed and such partition was never acted upon by any of the plaintiffs or the defendants and that the same was evident from the fact that the plaintiffs themselves are in occupation of more lands than their entitlement. The plaintiffs should surrender the excess land before claiming any share under the RSA No. 59 of 2011 Page 19 of 43 partition deed dated 5.4.1973. Similarly, in paragraphgraph-11 of the written statement , the defendants initially denied the averments made in paragraphgraph-6 of the plaint and then pleaded that they are jointly possessing the suit land measuring 3B 3K since the time of their predecessors in interest to the exclusion of all others. Thus, the defendants neither denied to have executed the Exhibit-1 partition deed dated 5.4.1973 nor did they make any allegation of forgery or fraud in connection with this deed. Even in course of cross examination DW-1 stated that there was a controversy in regard to family property and to prevent the same from further escalation a partition deed was executed . This deed was signed by her daughter Jorjina , Farida Khatoon, Suraiya, Fazinutlaa Nessa , Jahanara and Samsedarra Begum. This deed was registered before the Sub-Registrar and all the properties were thereby partitioned. Except this witness, no other witness of the defendants has made any statement in regard to the Exhibit-1 deed and thus neither in the pleading nor in the evidence of the defendants there is any allegation of fraud or forgery in regard to Exhibit-1 deed. In the absence of any pleading and evidence suggesting an allegation of forgery or fraud in regard to Exhibit-1 deed , the learned first appellate court committed error in entering into such a question vide paragraph -20 of the appellate judgment.
14. The first substantial question of law framed by this court on 28.2.2011 has three components. While the first component is in regard to enforceability of the partition deed on the question of violation of Mohemmedan Law, the second RSA No. 59 of 2011 Page 20 of 43 component is in regard to bar of estoppel against the defendants from questioning the validity of the deed 30 years after execution of the same by them. From the first substantial question of law, therefore, the following components would arise:-
(i) Whether Exhibit-1 is in violation of Mohemmedan Law?
If so,
(ii) Whether Exhibit-1 would be enforceable ?
(iii)Whether the defendants are estopped from challenging the validity of the deed 30 years after they had executed the same?
15. The second substantial question of law framed by this court on 9.4.2015 is based on the reasons recorded in the order dated 9.4.2015. This is because the learned counsel for the respondents must have vehemently submitted that Exhibit-1 is not a deed of family arrangement but it is a partition deed. On the other hand, this deed is void under Section -23 of the Contract Act inasmuch as it is not in accordance with the apportionment of shares under the Mohemmedan Law. The learned counsel for the appellants appears to have argued that the Exhibit-1 deed was really a deed of family settlement and so there was no violation of tenets of Mohemmadan Law. Having perused the texts of the order dated 9.4.2015 passed by this court while framing the second substantial RSA No. 59 of 2011 Page 21 of 43 question of law, it appears that in view of the arguments put forward by the parties, the real question before the court was whether Exhibit-1 is in violation of Mohemmadan Law. Under such circumstances, if the first component of the first substantial question of law referred to above is decided the same would take care of the second substantial question of law framed on 9.4.2015. Rather, it can be said that the second substantial question of law framed on 9.4.2015 is inherent in the first substantial question of law itself. Accordingly, I propose to decide the three components of the first substantial question of law mentioned in the preceding paragraph on the basis of materials on record and the argument put forward by the learned counsel for the parties.
Whether Exhibit-1 is in violation of Mohemmedan Law?
16. The learned first appellate court has held in paragraph-20 of the judgment that Exhibit-1 is against Mohemmedan Law. The reason is that as per Mohemmedan Law , a son gets double than what his sister would get. The learned first appellate court has accordingly held that Exhibit-1 is illegal because settlement was not made as per Mohemmedan Law and that human conduct cannot override the law. The learned first appellate court has not stated in this paragraph as to how Exhibit-1 is in violation of Mohemmedan law. He by the next sentence expressed that by making the partition of properties through Exhibit-1 fraud has been perpetrated. The judgment is silent as to what was the fraud perpetrated and by whom. As pointed out in the preceding paragraph, the defendants themselves did not make any allegation as to perpetration of fraud or RSA No. 59 of 2011 Page 22 of 43 forgery. Under such circumstances, it is not clear as to what did the learned first appellate court mean by describing Exhibit-1 as illegal and fraudulent. On the basis of these two propositions that Exhibit-1 is contrary to Mohemmedan Law and that the same is fraudulent, the learned first appellate court has held that the Exhibit-1 is not enforceable in law.
17. Mr. S Ali, learned counsel for the respondents has strenuously urged to show that Exhibit-1 is in violation of Mohemmedan Law. Exhibit-1 is on record and I have perused the same. It was brought into evidence without any objection. Although it is shown to have been proved in original, but a recital of the deed does not show as to whether the original deed was produced . The Exhibit-1 is a photocopy of e certified copy of deed no.4246. Of course, the records do not show that it was proved under objection . Since, the photocopy has been admitted into evidence without objection and the same has been described to have been proved in original, the admissibility on manner of proof of document would not arise at appellate stage. There is nothing on record to suggest that the defendants had raised objection as to admissibility or manner of proof of this document in appropriate time or during pendency of the suit.
18. Exhibit-1 shows that the executants No. 1 to 6 are daughters of Late Hafiz Ahmed Sheikh and executants No. 4, 5, 6 and 7 are daughters of Saira Khatoon. It is further disclosed that Executants No. 1, 2 and 3 namely, Zinathunessa, Farida Begum and Suraiya Begum are legal heirs of Late Ghulam Rabbi and executants No., 4, 5, 6 and 7 i.e. Suraiya Begum , Fazilutannessa , RSA No. 59 of 2011 Page 23 of 43 Jahanara Begum and Samsadara Begum are daughters of late Saira Khatoon. As per recital of this deed, Khalilur Rahman was brother of Ghulam Rabbi and Saira Khatoon and he died issueless and thus the executants became his legal heirs. The executants claimed to have been jointly possessing and enjoying the properties left behind by said Khalilur Rahman and to obviate any future dispute with regard to this property they got the same partition among themselves as per schedule 'Ka' to 'Jha'. By such partition, Jinathunessa got the properties described in schedule 'ka', Jarjina got the properties described in schedule 'kha', Farida Begum got the properties described in schedule 'ga', Suraiya Begum got the properties described in schedule 'gha', Faizilatanessa got the properties described in schedule 'unga', Zahanara Begum got the properties described in schedule 'cha' and Samsadara Begum got the properties described in schedule 'chha'. Besides, the aforesaid executants No.1, 2 and 3 jointly got schedule 'ja' property and executants No. 4, 5, 6 and 7 jointly got schedule 'jha' property which they are entitled to equally divide among themselves. The deed discloses that executants No.1, 2 and 3 will get half of the properties left behind by Khalilur Rahman, Ghulam Rabbi and Saira Khatoon and the remaining half would be shared by executants No., 4, 5 6 and 7 and they would be entitled to make division among themselves respectively. They would be entitled to divide the houses among themselves and if need be they would be entitled to make necessary adjustments. Mr. Ali submits that the executants No. 1, 2 and 3 being legal heirs of the male descendant of Nur Mohammad are entitled to two third of RSA No. 59 of 2011 Page 24 of 43 the property and so there was illegality in giving half of the property to them while remaining half has been given to the descendant of female descendant of Nur Mohammad. This is how the tenets of Mohammedan Law have been violated.
19. The learned first appellate court held that even if the story of oral gift by Khalilur is excluded for the time being in that event after death of Khalilur his property was inherited by his brother and sister, namely, Ghulam Rabbi and Saira Khatoon as per Mohemmedan Law. Under such circumstances, Saira Khatoon would have inherited one third of the total property left by Khalilur while Ghulam Rabbi (predecessor of the defendants) inherited two third. But since recital of Exhibit-1 shows that descendants of Saira Khatoon who are plaintiffs herein got 9K of land out of 3B 3K, this means that they got exactly half of the total property in the Dag and so there was violation of Mohemmedan Law according to which the predecessor of the plaintiffs could have inherited only one third of 9B 9K.
20. PW-1 Rafique Ahmed deposed that Saira Khatoon the mother of the plaintiffs was daughter of Nur Mohammad. Nur Mohammad had two other sons. Khalilur Rahman died unmarried and so his share of the property devolved on the mother of the plaintiffs and the father of the defendant No.3. After value of land in Guwahati city became high and there was expansion in the family of the plaintiffs and the defendants, dispute in regard to property arose between them. When this dispute reached its climax both the parties decided to get the land left RSA No. 59 of 2011 Page 25 of 43 behind by predecessor in interest amicably partitioned and accordingly by executing a registered deed No.4249 /1973, the land was partitioned. In this document, members of plaintiffs' side are shown as one party and the defendants are shown as another party. After the deed was executed , there was a perfect partition case in regard to some of the properties described in this deed. But there was no such proceeding in regard to Patta No.11. Accordingly, the plaintiffs and defendants side enjoyed their respective shares separately. However, after dispute arose in regard to some land of this deed, plaintiffs instituted Title Suit No. 23 of 1995 which is still pending. During this time on 17.9.1975, son of plaintiffs No.1 engaged workers for construction of pucca boundary wall when the defendants objected and this is how the cause of action of the suit had arisen. He claimed that plaintiffs are entitled to declaration of their right, title and interest with respect to the suit land covering 9K of land out of 38 B 3 K covered by dag No.38 of Patta No.11 of village Dakhingaon under Beltola Mouza. He has proved the partition deed No.4246 dated 5.4.1973 as Exhibit-1 and deed No.3381 as Exhibit-2 which is rectification deed. Exhibit-3 is an agreement between the plaintiffs and the defendants wherein there are signatures of both the sides. He has also proved concerned jamabandi as Exhibit- 4 and the mutation order dated 30.5.2001 passed by the Assistant Settlement Officer as Exhibit-5. This witness was cross examined at length by the defendants. In course of his cross examination he stated that plaintiffs side had sold some land in the suit patta. He also disclosed that defendants also sold RSA No. 59 of 2011 Page 26 of 43 some land but how much land was sold by the defendant, she could not specifically disclosed. She stated that vide Exhibit-Kha names of Khalilur Rahman and Ghulam Rabbi was shown in the record of rights on the basis of purchase whereas in Exhbit-kha name of Khalilur Rahman was deleted and so the name of Ghulam Rabbi remained in the records of rights. Thus, in course of cross examination of this witness the defendants extracted statements from the mouth of PW-1 to the effect that the ancestral properties of the plaintiffs and the defendants are no longer intact. While plaintiffs had sold some part of it, the defendants had also similarly alienated. However, this witness could not disclose as to how much land was sold by which of the parties.
21. PW-2 is Shahjahan Ali. He deposed that on 5.4.1973 he made the survey of the suit land for the purpose of partition between the plaintiffs side and the defendants side. According to him, defendants had not raised any objection when the survey and partition was made and both the parties were enjoying land as per the partition only. He deposed that names of Suraiya Begum was mutated in the record of rights pursuant to the order dated 30.4.1973 passed by the revenue officer. Similarly, name of Samsadara Begum was mutated by the order of SDC passed on 30.5.1973. The names of Jahanara Begum and Fazitulnessa was also mutated in the records of rights on the same date. He further deposed that no objection was filed in the office by the defendants against any of this mutation order. He stated that he retired as Kanungo in the office of the Settlement Office at Lachitnagar, Guwahati and as per records of rights examined RSA No. 59 of 2011 Page 27 of 43 by him, four plaintiffs were shown pattadar to the extent of 1B 3K under Dag No. 38 of K.P. Patta No.11 of village-Dakhingaon under Mouza Beltola and the defendants were also shown to be owner of the same area. According to him, neither of the parties made any construction on the land covered by this dag. Subsequently, kaccha patta was given to all pattadars on the basis of the aforesaid deed, he claimed. According to him, defendants did not submit any objection to the partition or issuance of the kaccha patta. This witness was also cross examined by the defendants side but except giving some suggestion no fatal contradiction could be elicited from his mouth. PW-2 Pabitra Kumar Das who proved the Exhibit-1 from the volume maintained in the office of the Sub- Registry stated in course of cross examination that the certified copy was issued from the original. He stated that deed dated 27.3.1982 was a rectification deed with respect to partition No. 4246 and the rectification deed was brought as deed No. 3381 which had been exhibited as Exhibit-2.
22. Exhibit-1 has been stated to have been amicably executed between the parties of which Exhibit-2 is rectification and the Exhibit-2 is stated to have been proved in original from the endorsement made on the document. Exhibit-2 was executed by Executants of Exhibit-1 for making corrections which shows that the land under enjoyment by the respective parties are as per amicable settlement. Exhibit-3 is an agreement between the plaintiffs side and the defendants side for the purpose of avoiding any future dispute between them with regard to properties at Odalbakra, Jyotikuchi and Dakhingaon which are jointly held by RSA No. 59 of 2011 Page 28 of 43 them. This deed was executed by both the sides whereby both the sides were empowered to enjoy, alienate and dispose their respective shares on the basis of the amicable partition. Exhibit-4 is the copy of Jamabandi of village Dakhingaon in respect of patta No.11 and it contains the names of both the plaintiffs and the defendants. The endorsements 'ka' 'kha', 'gha' of this document shows that names of Suraiya Begum, Zahanara Begum and Samsadara Begum were mutated in the records of rights by order dated 30.5.1973 passed by Revenue Officer on the basis of inheritance. The names of plaintiff No. 2 was also mutated in the records of right by the same order and thus plaintiffs wanted to prove that they had antecedent title to the land in question way back in the year 1973 and this is why their names were duly mutated in the records of rights.
23. Mustt. Zinatunessa was examined as DW-1. In paragraph-8 of her examination -in-chief , she stated that in 1973, family dispute arose between the parties for which she had signed on a document and subsequently understood that it was a family partition. She claimed that her signature was taken by defendants on the document by playing fraud and the same was never read out before or shown to her. She stated that had she been informed that it was partition deed, she would not have signed on it. However, neither of the sides did comply with the terms of the deed and that the defendants have been exclusively possessing the entire suit land. In 1995 plaintiffs wanted to forcefully take possession but because of the obstruction given by defendant no. 3 and her husband , the same did not materialise. She had exhibited Jamabandi of K.P RSA No. 59 of 2011 Page 29 of 43 patta No.92 as Exhibit-Ka. Certified copy of the Exhibit-'kha' and certified copy of sale deed No. 92/45 was Exhibited as Exhibit-Gha. She has proved the certified copy of the Jamabandi as Exhibit-Gha. In course of her cross examination this witness stated that she was not aware as to what was written in the examination in chief as the same was drafted at the instance of her son-in-law. She could not say from where and how much land was purchased by her husband in the year 1945 but she admitted that name of Saira Khatoon was mutated in the said land with respect to the same land and that she used to possess the same earlier although at present she does not have any possession. She also stated that after the death of Khalilur Rahman, her husband and Saira Khatton became owner . She also stated that Khalilur Rahman had gifted his share to her husband orally. There is no proof of such gift and that she was present at that time but she could not say as to whether any other person was present when the oral gift was made. She also could not recollect the date or time of the oral gift. She claimed that she was married to the family of Ghulam Rabbi in the year 1942 and at that time she was 14/15 years of age . It also came out of her mouth that the defendants side sometimes used to look after the suit land. She admitted in course of cross-examination that there was dispute in regard to their family property and for pre-empting further complicacies of the dispute, there was a partition deed which was signed by Zarjina Begum, Farida Begum, Fazitulnessa, Suraiya Khatoon, Jahanara Begum and Samsadara Begum and it was registered in the office of the Sub-Registry. Although she stated that she was not aware of RSA No. 59 of 2011 Page 30 of 43 all these developments but on the following moment she said that property was divided between them by the partition deed . She denied having knowledge of the share of property . She admitted execution of rectification deed in her further cross examination and stated that she or her daughters did not file any suit for challenging the partition deed or the a rectification deed. She also admitted that no challenge was made against the mutation of Saira Khatoon in the records of rights.
24. The defendants examined one Asgar Ali as DW-2 who stated that he was working in the Health Department in the year 1984 and that he was allowed by the defendants to look after the suit land. He noted that in 1995 in the month of September, Safique Ahmed and another wanted to forcefully enter into the suit land but the defendants and their men prevented them from so doing whereupon the intruders went away. Since, 1997 the defendants have permitted Minor Irrigation Department to make use of the land and to keep tools. He claimed that he has been staying on the land since 1975 and that he did not see anybody else other than the defendant to enjoy the suit land. In course of cross examination, he stated that he is a driver of Govt. Vehicle and he stays in Jyotikuchi gaon.
25. Abu Bakar Siddique, DW-3 in this case deposed that he knew both the sides and he was present in the year 1945 in the month of Sharavana/Bhadra when Khalilur Rahman had made oral gift in favour of Ghulam Rabbi. Apart from him, , late Babulal, Late Abu Sarif and wife of Ghulam Rabbi were present there. RSA No. 59 of 2011 Page 31 of 43 On the same day, Ghulam Rabbi took over possession of the land and Khalilur Rahman took them to the suit land by car and Babulal, Abu Sarif, Ghulam Rabbi and himself had went to the suit land in the said car with Khalilur Rahman when Khalilur handed over possession of the suit land to Ghulam Rabbi. About one year after this gift, Khalilur Rahman died.
26. Plaintiffs cross examined this witness at length when he stated that at the time of oral gift, he had gone to the house of Khalilur Rahman and in front of all those persons, Khalilur Rahman said that he would make oral gift of the land in Jyotikuchi in favour of Ghulam Rabbi. At that time, he was 16/17 years of age. In reply to the next question, he stated that he could not recollect any of the events of that period. But he stated that after the oral gift was made they were taken to the suit land. He stated that Ghulam Rabbi was fond of hunting and whenever Gulam Rabbi used to go for hunting he used to accompany Ghulam Rabbi . He claimed that apart from the aforesaid four persons nobody else knew about the gift by Khalilur Rahman in favour of Ghulam Rabbi
27. One Harbans Pandey was examined as DW-5 by the defendants. According to him, the defendants are owners of 3 ½ Bighas of land in Jyotikuchi and for last 30 years, he had looked after the land on behalf of defendants. Thereafter, the defendants kept Asgar Ali as their care taker. Defendants made kaccha house and covered the boundary with fencing. About 7/8 years before the date of his deposition, some persons came to take possession of the land which was objected to by the defendants and ultimately those persons went RSA No. 59 of 2011 Page 32 of 43 away. In course of cross examination he stated that he stays in Jyotikuchi since 1995 after purchasing his own land. His land in Jyotikuchi is about 4 km away from Dakhingaon and he was not aware if anybody else was the owner of the suit land other than the defendants.
28. Exhibit -Kha is the photocopy of Jamabandi wherein it is shown in that Khalilur Rahman and Ghulam Rabbi became the owner of the land covered by Dag No. 217 on the basis of purchase. The mutation was allowed on 20.4.1946, Exhibit-kha is another Jamabandi of the same land which shows that Khalilur Rahman and Ghulam Rabbi are the recorded pattadars of patta No.92. Exhibit- Gha is the sale deed whereby Khalilur Rahman and Ghulam Rabbi purchased two plots of land. One plot of land measuring 4 B is covered by Dag No.454/455 of K.P.Patta No. 105 of Village Udalbakra and another plot of land measuring 3B 3 K covered by Dag No.29 of K.P. Patta No. 92 of Village Dakhingaon. Exhibit-Gha is the Jamabandi to show that names of the defendants were brought on record in place of Ghulam Rabbi . But at the same time, names of plaintiffs are also shown in record as pattadars. The mutation of the plaintiffs and the defendants in this Jamabandi exhibited by the defendants appear to have been made vide order dated 21.8.2006 of the Assistant Settlement Officer on the basis of inheritance. Exhibit-Gha(ii) also shows similar entry as to name of the plaintiffs and the defendants as pattadars of the land. Exhibit-Unga is a letter issued by Minor Irrigation Development Corporation requesting the defendants to allow them to make use of the suit land for keeping their drilling rig and other machinery and RSA No. 59 of 2011 Page 33 of 43 by Exhibit-Cha letter, request was allowed by defendants. The evidence of both the sides as disclosed above would show that some land was left behind by Nur Mohammad and those were inherited by his two sons and a daughter as per Mohemmadan law. Out of the two sons,namely, Khalilur Rahman and Ghulam Rabbi , Khalilur Rahman died without leaving any issue and so after his death his property was either inherited by his brother and sister or his share was acquired by his brother Ghulam Rabbi by way of oral gift as claimed by defendants. If the oral gift is proved in that event, the plaintiffs being the legal heirs of Saira Khatoon, the sister of Khalilur Rahman would not have any claim of right, title or interest with respect to the property covered by Exhibit-Gha which admittedly is the suit land but in case the story of oral gift as pleaded by defendants are not established, in that event after the death of Khalilur Rahman, his sister Saira Khatoon also acquired a part of his share in the land covered by Exhibit-Gha however, as per the provision of the Mohemmadan law. Under such circumstances, correctness or otherwise of the story of oral gift is relevant for the purpose of ascertaining title of the parties to the suit land. Admittedly, there is no document in regard to gift by Khalilur Rahman in favour of the Ghulam Rabbi. It was an oral gift which is permissible under Section 29 of the Transfer of Property Act. But a gift under Mohemmadan Law has to conform to three ingredients, namely, (i) declaration as to gift, (ii) handing over possession to the donee and (iii) acceptance of the gift by donee. Here in this case, except DW-3 , there is no other direct witness to the pleadings of oral gift. This DW-3 also RSA No. 59 of 2011 Page 34 of 43 states that he was 16/17 years of age at the time the gift was made. He was present when the gift was made but on the following moment, he stated that he could not recollect any other incident of the same period. This witness, unlike the defendants is not educated person. He appears to have assisted Ghulam Rabbi when he used to go for hunting. He further disclosed that except he, the wife of Ghulam Rabbi and two other deceased persons, nobody else were aware about the oral gift made by Khalilur Rahman in favour of Ghulam Rabbi. This raises a suspicion about the credibility of his statements. If Khalilur Rahman had made oral gift out of love and affection, in that event there was no necessity for keeping the same secret and the donee cannot have any reason to suppress such fact from others. The documents of the contemporary period or even during the subsequent period did not contain any reference as to existence of such oral gift. The names of Khalilur Rahman and Ghulam Rabbi, the doner and the donee were mutated in the records of rights vide Exhibt-Ka. Subsequently, vide Exhibit- Kha, name of Khalilur Rahman was deleted after his death way back in 1973. The names of plaintiffs as well as the defendants were entered into records of rights on the basis of inheritance. If Ghulam Rabbi had got the land by gift from Khalilur Rahman in that event, Exhibit-kha would have contained reference to that effect. But what is found in Exhibit-Kha is that name of Khalilur Rahman was merely deleted without saying that he had made oral gift in favour of Ghulam Rabbi. On the other hand, defendants have not denied existence of Exhibit-1 partition deed. Even in her cross examination, DW-1 stated that she had signed RSA No. 59 of 2011 Page 35 of 43 on it. They also signed rectification deed Exhibit-2. If the defendants had executed both Exhibit-1 and 2 deeds, it is not clear as to why they did not make any mention of the oral gift at that time . But after more than 30 years have elapsed since execution of Exhibit-1, they disclosed for the first time that there was an oral gift. This being the position, learned trial court rightly disbelieved DW-3 and held that there was no oral gift. The first appellate court without discussing those reasons basing on which learned trial court had disbelieved the story of oral gift, held that Khalilur Rahman made oral gift in favour of Ghulam Rabbi and in so doing, the learned first appellate court ignored the cross examination of DW-1 saying that it was an unequal duel between an astute lawyer and a rustic. If such logic to ignore cross examination is approved, then no cross examination shall be acceptable. Because, all cross examination are by astute lawyers whereas the witnesses may be illiterate or not so educated. The learned first appellate court failed to notice that one of the signatories to the document was a doctor by profession and all the executants were qualified. None of them were rustic or illiterate. Under such circumstances, the story of oral gift appears to be an afterthought and improvement by the defendants. Consequently, it is to be held that plaintiffs also became legal heirs to the land covered by Exhibit-Gha along with the defendants. There is no dispute that inheritance should be according to tenets of Mohemmedan Law. RSA No. 59 of 2011 Page 36 of 43 29 There is yet another important aspect of the matter which appears to have escaped the attention of the learned appellate courts below. It has come from the evidence that both the plaintiffs as well as defendants sold land to others from their respective possession and there is no indication as to how much land was sold by whom. There is no evidence on record to come to the finding that the plaintiffs had got more than one third of the properties left behind by their predecessor in interest. At least it has come out from the evidence that out of two plots of land covered by Exhibit-gha land measuring 4 B had already been sold by defendants against Plot No. 1 and only plot No.2 measuring 3B 3K was left. In that event it is not clear as to how defendants can claim that the plaintiffs had got more than one third of the original properties because of execution of Exhibit-1. Both the sides are aware that they had acquired title from two sources. They inherited land of Nur Mohammad and that they inherited the land purchased by Khalilur Rahman and Ghulam Rabbi. The plaintiffs and defendants thereafter made sale from their respective possession and perhaps because of such random alienations of properties, the dispute between them was aggravated . The fact that there was dispute in regard to claim of title is an admitted one. The plaintiffs have stated so in their pleadings and evidence and DW-1 has admitted the same in course of her cross- examination. In view of such dispute in regard to claim of title if the parties made a settlement with respect to the remaining part of the properties, there is no reason as to why such apportionment has to be in the ratio of 2:1 to make it RSA No. 59 of 2011 Page 37 of 43 compatible with the tenets of Mohammedan law. The original inheritance has to be in the ratio of 2:1 between male and female heirs. But after there has been series of alienations, the partition in the ratio of 2:1 may or may not subsist. This will depend upon quantum of land alienated by each of them which has not been discussed by the parties. Under such circumstance, the only document that has been brought on record is prima facie agreement between the parties that thenceforward they would be enjoying the properties as per schedule 'ka' to schedule 'jha' of Exhibit-1. In the absence of any pleading as to forgery or fraud and or any substantial evidence to that effect , it cannot be presumed that the plaintiffs have perpetrated fraud on the defendants. As pointed out above, such findings of the first appellate court cannot be accepted. The defendants having raised this issue were duty bound to bring on record that even after transfer by both sides of the properties inherited by them, the plaintiffs are still occupying more than one third of the properties originally inherited by them before such alienation. The first component of the first substantial question of law, therefore, is decided in the negative and in favour of the appellant holding that there is nothing in Exhibit-1 and that there is no material on record to show that Exhibi-1 is in violation of Mohemmadan Law.
Whether Exhibit-1 deed is enforceable?
30. When the first component of first substantial question of law has been decided in the negative, perhaps the second component does not require any RSA No. 59 of 2011 Page 38 of 43 adjudication. If there is no violation of the tenets of Mohemmadan Law by execution of Exhibit-1, there is no question of the same being not enforceable . Whether the defendants are stopped from challenging the validity of the deed, 30 years after they had executed the same?
31. It takes us to the third component of first substantial question of law as to whether defendants are estopped from challenging the validity of the deed after 30 years of the validity of the same.
32. In the case of Sahu M adhu Das -vs- M ukand Ram reported in AIR 1995 SC 481, reliance has been placed on the case of K ale & ors -vs- Deputy Director reported in AIR 1976 SC 807 wherein the Hon'ble Supreme Court was of the view that compromise or family arrangement is based on the assumption that there is antecedent title of some sort and the agreement acknowledges or defines what the title is. It is only thereafter each party may relinquished their claim of the property to some extent as they had previously asserted and consequently apportionment and allotment is made. It is for these reasons, conveyance is required in this case for the sake of transfer of title. The courts lean in favour of family arrangement as it brings about harmony in a family and does justice to its various members and avoids future dispute which might ruin them all.
33. Mr. S Ali, learned counsel for the respondents on the other hand dwelt heavily on the proposition that family arrangement and partition are two different RSA No. 59 of 2011 Page 39 of 43 things. Here in this case it is only a case of partition as pleaded by the plaintiffs themselves in their plaint and that giving a colour of family arrangement to it was first developed at the second appellate stage. Relying on the judgment of Hiraji Tolaji Bhagw an -vs- Shakuntala reported in (1990 ) 1 SCC 440, the learned counsel would argue that family settlement is a settlement which gives share to the party as per their legal entitlement and it is not a settlement which is made or purported to have been made a circumspect of law. A partition of property can only be among the parties who have a pre-existing right to the property. This argument was made by the learned counsel for the respondent on the ground that in view of oral gift allegedly made by Khalilur Rahman in favour of Ghulam Rabbi, it is the defendants who had acquired title to the land covered by Exhibit- Gha and the plaintiffs did not have any share in it. The question of their getting a part from such land, therefore, was not permissible even by family settlement. But in view of the finding with regard to the second component in the first substantial question of law, the story of gift was not found acceptable in view of the fact that defendants could not prove the ingredients of Section 149 of Mulla's Mohemmedan Law apart from the fact that there was no indication of such oral gift in any of the proceedings in subsequent 30 years like mutation on successive dates. It has been held above that in the absence of oral gift, the plaintiffs had antecedent title to the suit property covered by Exhibit-Gha and so the case of Hiraji Tolaji Bhagw an -vs- Shakuntala ( supra ) does not appear to be of any help in the present case.
RSA No. 59 of 2011 Page 40 of 43
34. The defendants having admitted that there was a partition deed like Exhibit-1 and that there are signatures of the defendants there on, and they not having disputed the fact of execution of Exhibit-1 which is reinforced by Exhibit- 2 and execution of this documents also not having been denied by defendants even impliedly, defendants were not at liberty to challenge these two Exhibits. The defendants did not challange the validity of the deeds either by filing counter claim or by instituting separate suit. Exhibits- 1 and 2 are registered deeds and they have their own consequences. These Exhibits are executed by defendants when they were major and even after institution of the suit , they did not make any attempt to get the same adjudged illegal, fraudulent or inoperative. As held above, the learned first appellate court did not have any material before him before holding Exhibit-1 as fraudulent and so there is no reason as to why the defendants should be permitted to resile from same when the documents are in existence. At the cost of repetition it is to be mentioned here that parties having inherited the properties from their ancestors initially started jointly enjoying the same and then sold parts of it by successive deeds of conveyance . PW-3 came in the witness box and deposed as a retired Government employee to the effect that he being Kanungo of the Office of the Settlement officer had surveyed the suit land for the purpose of partition and thereupon the parties went on enjoying their respective shares. From the evidence of the defendants , it has further come to light that apart from enjoying they had also alienated land from their RSA No. 59 of 2011 Page 41 of 43 respective possessions. The quantum of land alienated by defendants or the plaintiffs have not been brought to the hotch potch to enable the court to make assessment that initially inheritance by the parties were not in conformity with the Mohemmedan Law. At the end of the day, fact remains that there are two registered deeds which are prima facie exhibited by the plaintiffs and the defendants and these documents show that they undertook not to intrude into shares of others as prescribed under schedule 'ka' to 'jha' of Exhibit-1. This undertaking has been further reinforced by Exhibit-2 and 3 the execution of which has neither been denied nor did the defendants challenged the same in any way. Under such circumstances 30 years after such undertaking, the defendants cannot be permitted to resile from the agreement. The mutation of the defendants in respect to the suit land is a proved fact in view of Exhibit-'Gha' adduced by defendants. All these mutations were made on the basis of inheritance. The names of the defendants were also mutated in the record of rights on the basis of inheritance and admittedly defendants did not challenge the mutation in any point of time not even after institution of the suit. These are only indications to show that parties did act upon the Exhibit-1 and Exhibit- 2. The terms and conditions mentioned in the Exhibits-1, 2 and 3 shows that the only objection raised by the defendants in their written statement that partition deed was not acted upon by the executants is not correct. The facts and documents as discussed above did not receive any consideration of learned first appellate court. The learned first appellate court does not appear to have RSA No. 59 of 2011 Page 42 of 43 considered the averments made in Exhibit-1 in the light of the evidence led by the parties. The learned first appellate court proceeded on the assumption that Exhibit-1 is under challange on the ground of fraud or forgery. On consideration of the entirety of the circumstances discussed above, the third component of the first substantial question of law is decided in favour of the appellant and in the affirmative.
35. The other judgments relied on by both the sides did not appear to be essential for the purpose of deciding any of the components as referred to above. They are accordingly not discussed. Once all the three components of the substantial question of law are discussed, the first substantial question of law is decided in favour of the appellant. The second substantial question of law is automatically answered inasmuch as it is mere an offshoot of first substantial question of law .
36. Accordingly, the appeal stands allowed. The impugned first appellate judgment is hereby set aside and the same of the learned trial court is hereby upheld. No order as to cost.
JUDGE Nivedita RSA No. 59 of 2011 Page 43 of 43