Patna High Court
Salahuddin & Ors vs Razi Ahmad & Ors on 7 May, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.176 of 1976 dt.07-05-2013
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.176 of 1976
(Against the judgment and decree dated 18.08.1975 passed by Sub
Judge, Darbhanga in Partition Suit No.181 of 1967).
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Jamila Khatoon & Ors
.... .... Plaintiffs-Appellants
Versus
Razi Ahmad & Ors
.... .... Defendants-Respondents
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Appearance :
For the Appellant/s : Mr. Bhupendra Narayan Sinha
For the Respondent/s : Mr. Raghiv Ahsan, Sr. Advocate
Mr. Saba Asfaque
Mr. A.B.S.Sinha
Mr. Shashi Anugrah Narain
Mr. Jogendra Mishra
Mr. Sachidanand Choudhary
Mr. Shahilendra Kumar
Mr. Anamul Haque
Mr. Khurshid Ahmad Siddiqui
Mr. Najeeb Ahmad
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 07-05-2013
Mungeshwar 1. The original sole plaintiff, Bibi Asma Khatoon
Sahoo, J.
who died during the pendency of this appeal and has been substituted,
had filed this First Appeal against the judgment and decree dated
18.08.1975passed by the learned Subordinate Judge, Darbhanga in Partition Suit No.181 of 1967 whereby the trial court decreed the plaintiff's suit for partition in part.
2. The plaintiffs-appellants had filed the suit claiming partition of 1/8th share in the suit property left by her father, Haji Shafiullah described in Schedule II to VI. According to the plaintiffs, Patna High Court FA No.176 of 1976 dt.07-05-2013 2 her father, Haji Shafiullah died in June, 1966 leaving behind four sons namely Wasi Ahmad, defendant no.1, Ali Ahmad, defendant no.2, Sayeed Ahmad, defendant no.3 and late Nazir Ahmad, widow Bibi Fatma and two daughters namely Asma Khatoon, the plaintiff and Bismillah Khatoon, the defendant no.4. Nazir Ahmad one of the sons of Haji Shafiullah predeceased him leaving behind his two sons and 3 daughters who are defendant nos.6 to 10. The widow, Bibi Fatma died during the pendency of the suit, therefore, her name was struck off. According to the plaintiffs, 3 registered gift deeds were executed by Haji Shafiullah on 29.09.1962 and two registered gift deeds on 04.05.1962 in favour of his four sons. The properties covered by these gift deeds have been mentioned in detail in Schedule IV of the plaint. The defendant nos.2, 3 and the predeceased son, Nazir Ahmad in collusion with the scribe and attesting witnesses got created these registered gift deeds as such, the gift deeds are forged, fabricated and not executed by Haji Shafiullah. Haji Shafiullah was old and almost lost his mental capacity who was being looked after by the defendants. Haji Shafiullah died at the age of 95 years. He was under
undue influence of defendant nos.2, 3 and Nazir Ahmad and there was fiduciary relationship between them. The further case of the plaintiffs is that if the court will find that the deeds are executed by Shafiullah then the said gift deeds were executed under the influence of Patna High Court FA No.176 of 1976 dt.07-05-2013 3 defendant nos.2, 3 and Nazir Ahmad while Haji Shafiullah has lost his balance of mind and was under the guardianship of aforesaid persons. Without knowing the contents of the deeds, he has signed and registered the same. The said sons had taken undue advantage of old age of Shafiullah.
3. The further case of the plaintiffs is that the property described in Schedule V of the plaint is the exclusive property of defendant no.1, Wasi Ahmad. The property described under Schedule VI of the plaint was acquired in the name of defendant nos.1 to 3 and Nazir Ahmad and the same belonged to those four sons.
The plaintiffs further pleaded that in case the court finds that these properties are acquired by Haji Shafiullah, the plaintiff shall be entitled to her share.
4. The defendant no.1 filed supporting written statement. However, the defendant nos.2 and 3 filed contesting written statement. Their main defence is that the plaintiff has got no cause of action and the suit is barred by law of limitation. Haji Shafiullah donated the properties to his sons. All the donees came in possession of the property donated to them. The defendant no.1, Wasi Ahmad did not take possession of the donated properties. Therefore, Haji Shafiullah had issued a notice to him but in spite of that, he did not take possession. Therefore, Haji Shafiullah continued in Patna High Court FA No.176 of 1976 dt.07-05-2013 4 possession till his death. After death of Haji Shafiullah, his wife and the widow of Nazir Ahmad got share by way of inheritance and they have already gifted their properties orally in favour of the sons of Nazir Ahmad and delivered possession to them. The Schedule V property was acquired by Haji Shafiullah in the name of defendant no.1 as such, it is available for partition. In fact, defendant no.1 got the present suit filed by the plaintiffs. Haji Shafiullah was physically fit and mentally sound till his death and he died at the age of 76 years. He was never under the influence of the defendants and Nazir Ahmad. The gift deeds are neither collusive nor the same were brought into existence by these defendants. In fact, Haji Shafiullah himself gifted his properties after reading and knowing the contents of the gift deeds. He admitted the execution of the deed before Registrar. The gift deeds were acted upon as such, the same are valid and legal. Although, he was old but he was healthy. No fraud was committed. The Schedule VI property was acquired by Haji Shafiullah in the names of his four sons. Therefore, the properties covered by the gift deeds be excluded from partition.
5. The widow of Nazir Ahmad i.e. defendant no.5 filed written statement supporting the case of the defendant nos.2 and
3.
6. On the basis of the aforesaid pleadings, the trial Patna High Court FA No.176 of 1976 dt.07-05-2013 5 court framed the following issues:
I. Is the suit maintainable in its present form?
II. Has the plaintiff cause of action for the present suit?
III. Whether the suit properties are available for partition in the
suit?
IV. What would be the share of the plaintiff in the property
available for partition?
V. Is the suit property are correctly valued and whether the court
fee paid is sufficient?
VI. Whether the alleged deeds of gift said to have been executed
by Haji Shafiullah are forged, fabricated and fraudulent document and were they brought into existence by practicing fraud, undue influence by defendants 2, 3 and Nazir Ahmad on Haji Shafiullah?
VII. To what relief or reliefs if any, is the plaintiff entitled?
7. The learned counsel, Mr. Bhupendra Narayan Sinha appearing on behalf of the appellants submitted that the learned court below has wrongly held that the property covered by Exhibit B/1 which is in the name of defendant no.1 is the self-acquired property of Haji Shafiullah. According to the learned counsel, the registered deed is dated 04.06.1944 and the plaintiffs specifically pleaded that it is the property of defendant no.1. The defendant no.1 also pleaded that it is his self-acquired property. According to the learned counsel, the Lower Court has mis-appreciated the evidences adduced by the parties and recorded a finding that the said property Patna High Court FA No.176 of 1976 dt.07-05-2013 6 acquired by registered sale deed dated 04.06.1944, Exhibit B/1 is the property acquired by Haji Shafiullah in the name of defendant no.1. So far the property acquired by the registered sale deed dated 07.02.1942 is concerned, it was the acquisition made by the four brothers and it was never the property of Haji Shafiullah. In such circumstances, Haji Shafiullah had no right to gift the properties covered by Exhibit B. Elaborating this point, the learned counsel submitted that in Mohammedan law, there is no presumption of jointness as is presumed in Hindu law. If the Mohammedan family members are living in commensality, it is not necessary that they form a joint family in the sense in which the term "joint family" is used with regard to Hindu family. Likewise, there is no presumption in Mohammedan law that if any acquisition is made in the name of any Mohammedan, it is made for the benefit of the joint family. However, the court below without following this principle wrongly held that the property covered by Exhibit B is the property acquired by Haji Shafiullah. The learned counsel further submitted that according to the defendant nos.2 and 3, all the properties covered by Exhibit B and B/1 are the self-acquired property of Haji Shafiullah but the court below has passed a conflicting judgment holding that the property through Exhibit B/1 is the self-acquired property of defendant no.1 whereas the property acquired by Exhibit B is the property acquired Patna High Court FA No.176 of 1976 dt.07-05-2013 7 by Haji Shafiullah. The learned counsel further submitted that there are overwhelming evidences adduced by the party to show that Haji Shafiullah was old enough and was unable to understand the affairs and the defendant nos.2 and 3 got the gift deeds executed by him by undue influence. The appellants also produced the documentary evidences to show that there was undue influence played by the defendant nos.2 and 3 but the court below on one ground or other, has disbelieved the evidences and materials and rejected the plea of the appellants to the effect that the 5 registered gift deeds are tainted with undue influence.
8. The learned counsel further submitted that the appellant has examined P.W.16, 17, 19, 26, 27, 28, 34 and 35 who have stated that at the time of execution of the gift deeds, Haji Shafiullah was physically and mentally not sound which has wrongly been disbelieved and the learned counsel placed the evidences of P.W.5 to 7, 14, 23, 26, 28, 34 and 35 on the ground of undue influence and submitted that on these grounds, the learned court below should have held that the gift deeds are liable to be set aside.
9. So far limitation is concerned, the learned counsel submitted that no issue was framed regarding limitation and in fact, the appellant had no knowledge about the execution of the gift deed of the year 1962 till the written statement was filed by Haji Shafiullah in Patna High Court FA No.176 of 1976 dt.07-05-2013 8 another suit being Title Suit No.43 of 1964. Haji Shafiullah filed the written statement on 27.08.1964 and the plaintiff was substituted on the death of Haji Shafiullah who died on 12.06.1966 as such, she has no knowledge of the gift deed so the suit is not barred by law of limitation. According to the learned counsel, valuable property has been gifted by Haji Shafiullah to the defendant nos.2 and 3 whereas small property of meager value has been gifted in favour of defendant no.1 and moreover, the property which is the self-acquired property of defendant no.1 has also been gifted by Haji Shafiullah in favour of defendant no.1. Therefore, this is another circumstances to show that the donor, Haji Shafiullah did not applied his mind because he was not mentally sound but the court below has not considered this aspect also.
10. A written argument has also been filed by the learned counsel elaborating his arguments and in the said written argument, he has given reference of various decisions also. The said decision shall be dealt with at the relevant places later on. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decree be set aside and the plaintiff's suit be decreed setting aside the 5 gift deeds.
11. On the other hand, the learned senior counsel, Mr. Raghiv Ahsan appearing on behalf of the contesting respondents Patna High Court FA No.176 of 1976 dt.07-05-2013 9 submitted that the defendant no.1 filed Title Suit No.43 of 1964 wherein Haji Shafiullah was defendant. If the case of the plaintiffs is believed that Haji Shafiullah was physically and mentally unfit at the time of execution of the gift deeds in the year 1962, then defendant no.1 should have been made party through his friend or any guardian should have been appointed on the ground that he was not capable of understanding the affairs but Haji Shafiullah filed a separate contesting written statement on 27.08.1964. He executed the vakalatnama by himself. It is not the case of any party that he had not executed the vakalatnama or he has not signed the written statement and filed the same or that somebody impersonated him in the said case and it is not the written statement of Haji Shafiullah or that the vakalatnama is not executed by him or he was incapable of executing the vakalatnama. Therefore, if he was mentally sound and physically fit to execute vakalatnama and filed written statement in the year 1964, how can it be said that he was not mentally sound and physically fit in the year 1962. In written statement filed on 27.08.1964, he admitted that he had executed the registered gift deeds in favour of his four sons. When he himself admitted the execution of the registered gift deeds, there is no question of deciding the fact that the gift deeds were tainted with undue influence.
12. So far the property covered by Exhibit B is Patna High Court FA No.176 of 1976 dt.07-05-2013 10 concerned, the court below has held that it is the property acquired by the father, Haji Shafiullah in the name of four brothers. It is the case of the plaintiffs that it is acquired by four brothers and not by the father. Therefore, even if it is held that the property is the property acquired by four brothers, the plaintiff has got nothing to do with the same and likewise, when it has been held by the court that it is the property of Haji Shafiullah which has already been gifted by him then also the plaintiff has got nothing to do with the said property unless it is held that the gift deeds are illegal gift deeds. The learned counsel further submitted that in fact, the present suit has been instituted by the plaintiff at the instance of the defendant no.1. The defendant no.1 is not coming forward to challenge any finding of the court below. The decree passed by the court below holding that the property covered by Exhibit B/1 is the property acquired by Haji Shafiullah is against the defendant no.1 but he has not filed any appeal or cross- objection. Therefore, the plaintiff has no locus standi to challenge that finding as it is not directed against the appellant. Likewise, the decree whereby it has been held that the property covered by Exhibit B is the property acquired by Haji Shafiullah is against the four brothers. Therefore, the plaintiff who is daughter has no locus standi to challenge that part of the decree because admittedly, this Exhibit B stands in the name of four brothers. None of the brothers have filed Patna High Court FA No.176 of 1976 dt.07-05-2013 11 cross-objection or appeal challenging that part of the decree. In other words, the trial court by the impugned decree held that this property covered by Exhibit B be excluded from partition. The plaintiff categorically stated in the plaint that it is the property acquired by four brothers. Now, this finding is contrary to the pleading of the plaintiffs and 4 brothers. However, the decree cannot be said to be a decree against the plaintiffs because the right of the plaintiffs is not affected by the decree.
13. So far the limitation is concerned, the learned counsel for the respondents submitted that the plaintiff's suit is hopelessly barred by law of limitation. This is a First Appeal. Therefore, in view of Section 107 of the C.P.C., the First Appellate Court has the same power as that of the trial court and can dismiss the suit in view of the Section 3 of Limitation Act. According to the learned counsel, irrespective of the fact as to whether the defendant has taken any defence about the limitation, a duty has been cast on court to dismiss the suit being barred by law of limitation. In the present case, admitted fact is that the registered gift deeds are of the year 1962 and by way of amendment, the plaintiff challenged the same in the year 1968. In view of the above facts, unless the plaintiff proved that she had no knowledge about the existence of these gift deeds, her suit is liable to be dismissed on this score alone. The Patna High Court FA No.176 of 1976 dt.07-05-2013 12 learned counsel further submitted that here the fact of execution of the deed is admitted. Therefore, only law is to be applied, as such, on the ground that question of limitation is mixed question of fact and law is not available to the appellant here in the facts and circumstances of the case. On these grounds, the learned counsel submitted that the First Appeal be dismissed with exemplary cost because the appellant has unnecessarily dragged the respondents upto this court without any rhyme and reason only at the instigation of the defendant no.1, Wasi Ahmad and in fact, this is frivolous case filed by the plaintiff.
14. In view of the above submissions of the parties, the point arises for consideration in this appeal is as to "whether the plaintiff has been able to prove her case as pleaded by her with regard to execution of 5 gift deeds or her suit is barred by law of limitation as such, cannot be allowed to agitate the case of undue influence and duress" and "whether the impugned judgment and decree is sustainable in the eye of law?"
15. So far the case of the plaintiff-appellant regarding Schedule V property is concerned, it is pleaded that it is the exclusive property of defendant no.1, Wasi Ahmad. It may be mentioned here that the plaintiff has not prayed for partition of this property. However, the court below recorded a finding that it is the property acquired by Haji Shafiullah. Therefore, this part of the decree is Patna High Court FA No.176 of 1976 dt.07-05-2013 13 against the defendant no.1. According to the defendant nos.2 and 3, this Schedule V property is the property acquired by Haji Shafiullah whereas according to plaintiff, it was the property of defendant no.1. As stated above, the court below has accepted the case of defendant nos.2 and 3 and held that it is the property acquired by Haji Shafiullah. Although, this decree is against defendant no.1,this defendant no.1 has neither filed independent appeal nor has filed any cross-objection in this appeal. Now, therefore, so far this Schedule V property is concerned, which is covered under Exhibit B/1, the appellant cannot be allowed to say that the finding is wrong or that the court below should have recorded a finding that it was the property acquired by defendant no.1. The other aspect of the matter is that even if it is held that it is the property of defendant no.1, the plaintiff will have no right to get a share in the same. So far Waheed Walahouse described in Schedule V of the plaint is concerned, the court below has already granted a decree for partition in favour of the plaintiff.
16. So far the property covered by Exhibit B described in Schedule VI of the plaint is concerned, admittedly, it stood in the name of four brothers i.e. four sons of Haji Shafiullah. The plaintiff categorically pleaded in the plaint that the said property is the property of four brothers whereas according to the defendant nos.2 Patna High Court FA No.176 of 1976 dt.07-05-2013 14 and 3, it was the property acquired by Haji Shafiullah. No doubt, the defendant no.1 supported the plaintiff's version. However, the court below recorded a finding that it is the self-acquired property of Haji Shafiullah in the name of his four sons. None of the brothers are challenging that part of the decree by which their rights have been affected which has been passed recording a finding that it is the property of Haji Shafiullah. It may be mentioned here that this property has already been gifted by Haji Shafiullah, therefore, unless it is held that the gift deeds are illegal or void, the plaintiff will not be entitled for a share in the property. Moreover, her specific case is that the property belonged to 4 brothers. Therefore, now, she cannot be allowed to say that the court below has wrongly recorded the finding that Haji Shafiullah acquired the property. In fact, the persons who are said to be aggrieved by this finding or decree are the brothers. This finding is not against the plaintiff. In other words, even if it is held that the property belonged to four brothers then the plaintiff is not entitled to a share and even if it is held that the property was acquired by Haji Shafiullah then also she will not get the property unless the gift deeds are set aside.
17. Much has been argued on behalf of the appellant regarding undue influence and duress by defendant nos.2 and 3 on Haji Shafiullah. P.W.5 at paragraph 3, P.W.7 at paragraph 1, P.W.14 Patna High Court FA No.176 of 1976 dt.07-05-2013 15 at paragraph 3 and 4, P.W.23 at paragraph 2, P.W.26 at paragraph 1 and 3, P.W.28 at paragraph 1, P.W.34 at paragraph 4 and P.W.35 at paragraph 3, 8 and 9, all have stated that two brothers, defendant nos.2 and 3 influenced Haji Shafiullah and got the 5 gift deeds executed by him. The said brothers took active part in getting the gift deeds executed and they were giving suggestions. The witnesses have stated that Haji Shafiullah was living with defendant nos.2 and 3 and late Nazir Ahmad and defendant no.1 was living separately since 1955. The learned counsel for the appellants on the strength of the evidence of the above witnesses submitted that in view of the evidences of the witnesses, it can very well be said that the defendant nos.2 and 3 exercised undue influence because Haji Shafiullah was living with them and since 1955, defendant no.1 living separately.
18. From perusal of the evidence of defendant no.1, who has been examined as D.W.26, he has stated that there was strained relationship between him and his father and he was even not allowed by the other brothers to meet the father.
19. So far the submission of the learned counsel for the appellants is concerned, in my opinion, only because Haji Shafiullah was residing with defendant nos.2, 3 and Nazir Ahmad, no inference can be drawn that said defendants influenced him. As has been stated that D.W.26, Wasi Ahmad himself has admitted the fact Patna High Court FA No.176 of 1976 dt.07-05-2013 16 that there was strained relationship between him and his father. Moreover, Haji Shafiullah has also gifted some property to defendant no.1. Further, only because defendant no.1 was not residing with his father, no inference can be drawn that Haji Shafiullah was influenced by the other brothers particularly when the defendant no.1 is not challenging the gift deeds.
20. The appellants have produced many letters Exhibit 3 series. In Exhibit 3, the letter dated 10.02.1959, Sayeed Ahmad wrote a letter to Ali Ahmad and Shafiullah suggesting that he would request his father Shafiullah to make gift of all his properties in favour of only Sayeed Ahmad, Ali Ahmad and Nazir Ahmad. In the letter dated 27.03.1962, Exhibit 3/B and 3/A are letters dated 05.04.1962 which are the letters between the defendants inter se. The learned counsel for the appellants placed the other letters i.e. Exhibit 3/E and 3/F and submitted that from these letters, it is evident that the brothers took active part. No doubt, from these letters it is clear that they were requesting his father to gift property. But because they were requesting their father to gift the property to them, can it be said that it is undue influence given by them. In my opinion, it cannot be said that any undue influence was exercised on Haji Shafiullah by requesting him. In other words, a request cannot be termed as undue influence.
Patna High Court FA No.176 of 1976 dt.07-05-2013 17
21. The learned counsel for the appellants submitted that the mental condition of Haji Shafiullah was not fit and sound. Therefore, he was misled by the said brothers. In support of this fact, the plaintiff has adduced evidences. From perusal of the evidence of P.W.16, 17, 19, 26, 27, 28, 34 and 35 who are on this point, it appears that they all have stated that Haji Shafiullah was not mentally sound and physically fit and he was very old.
22. So far these evidences are concerned, it may be mentioned here that the gift deeds have been produced by the defendants which are Exhibit H-1, H-1(1), H-1(2), H-1(3) and H-1(4). Exhibit H-1(2) to H-1(4) are dated 02.04.1962. Out of them, H-1(2) was executed by Haji Shafiullah in the name of defendant no.1, Wasi Ahmad. Exhibit H-1(3) was executed in favour of Ali Ahmad i.e. defendant no.2. H-1(4) is registered gift deed executed in favour of defendant no.3, Sayeed Ahmad. Two gift deeds i.e. H-1 and H-1(1) dated 04.05.1962 were executed by Haji Shafiullah in favour of Nazir Ahmad and Sayeed Ahmad respectively with regard to the property situated in U.P. According to the evidence of the above witnesses at the time of execution of these registered sale deeds, Haji Shafiullah was mentally unsound or he was incapable of understanding the affairs. So far these evidences are concerned, it may be mentioned here that defendant no.1 had filed Title Suit No.43 of 1964 on Patna High Court FA No.176 of 1976 dt.07-05-2013 18 16.04.1964 praying for dissolution of partnership firm and rendition of account against Haji Shafiullah. In that suit, it was not alleged by the defendant no.1 that his father is not capable of understanding the affairs. In other words, Haji Shafiullah was not sued through his next friend.
23. Haji Shafiullah himself filed written statement on 27.08.1964. If he was not capable of understanding the affairs, how he could have filed the written statement in the year 1964. Exhibit 1 is the written statement filed by Shafiullah in Title Suit No.43 of 1964. From perusal of the said written statement, it appears that at paragraph 16, Haji Shafiullah clearly stated that he had already gifted the properties by registered gift deeds dated 04.05.1962 and 02.04.1962. It is not the case of the defendant or the plaintiff that this statement made in paragraph 16 of Exhibit 1 is not the statement made by Haji Shafiullah. Admittedly, Haji Shafiullah died in the year 1966 and the plaintiff is claiming through Haji Shafiullah. Therefore, she will be bound by the statement made by Haji Shafiullah. Further, the gift deed was executed by Haji Shafiullah in the year 1962. On 12.06.1966, Haji Shafiullah died. During this period i.e. more than four years, Haji Shafiullah never challenged the gift deeds on the ground of either undue influence or duress rather he admitted himself to have executed the said gift deeds in favour of his four sons. This Patna High Court FA No.176 of 1976 dt.07-05-2013 19 admission made by Haji Shafiullah in his written statement is admissible as the statement has been made by the dead person now. Moreover, in the said Title Suit No.43 of 1964, the present plaintiff was substituted after death of Haji Shafiullah. Therefore, in view of Order 22 Rule 2, the legal representatives substituted may make any defence appropriate to his character as legal representatives i.e. the plaintiff cannot take stand different than the stand taken by her father, Haji Shafiullah because the plaintiff in this present suit is claiming her title through her father and not claiming right independently in the suit property.
24. Further, the contesting defendants have produced Exhibit Q/1 which is notice dated 04.04.1964 issued by Haji Shafiullah to defendant no.1 to take possession of the property gifted to him by Haji Shafiullah. It is not the case of the plaintiff that this notice was not issued by Haji Shafiullah rather it was written by the contesting defendant and they got signature of Haji Shafiullah. Now, therefore, when the father, Haji Shafiullah was competent enough to file his defence i.e. the written statement in Title Suit No.43 of 1964 and also competent enough to issue notice to the defendant no.1 Exhibit Q/1 in the year 1964 i.e. after two years of execution of gift deed, can the oral evidences produced by the plaintiffs who have stated that Haji Shafiullah was not mentally sound and was incapable Patna High Court FA No.176 of 1976 dt.07-05-2013 20 of understanding be relied upon? In my opinion, no prudent person can rely upon the bald statement only in face of these documentary evidences produced by the defendants.
25. When Haji Shafiullah himself admitted to have executed the gift deeds and did not even challenge the gift deeds during his lifetime and allowed the gift deeds to stand as legal and valid gift deeds, the plaintiff being the daughter who is claiming through Haji Shafiullah cannot possibly have any ground to assail the gift deeds on the question of undue influence, fraud or illegality. From the pleading of the plaintiff and the evidences adduced on her behalf, it appears that large numbers of witnesses have been examined in support of the pleading regarding undue influence and the status of mind of Haji Shafiullah and it is pleaded only that Haji Shafiullah was not capable of understanding because of old age. No pleading or evidence has been adduced about the statements made by Haji Shafiullah in the written statement of Title Suit No.43 of 1964 or the notice Exhibit Q/1 which were filed by Haji Shafiullah two years after execution of gift deed. When he was capable of understanding the matters in the year 1964 then there was heavy onus on the part of the plaintiff to have proved the allegation made in the pleading.
26. Now let us consider as to whether all these matters raised by the plaintiffs are required to be decided in this appeal. Here, Patna High Court FA No.176 of 1976 dt.07-05-2013 21 it may be mentioned that I have already dealt with all the evidences and arguments advanced by the learned counsel for the appellants on the question of undue influence, fraud or mental and physical status of Haji Shafiullah but then the question is whether the plaintiff can be allowed to challenge the gift deeds after expiry of three years from the date of execution of the gift deeds. The learned counsel for the appellants submitted that the suit is not barred by law of limitation.
27. In the case of Abdul Rahim & Ors. vs. Sk. Abdul Zabar & Ors., AIR 2010 Supreme Court 211, the Hon'ble Supreme Court has held as follows:
"A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit, therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place."
28. In the present case, according to the learned counsel for the appellants, the present suit was filed on 19.08.1967. On 26.04.1968, written statement was filed by defendant nos.2 and 3 disclosing the facts of execution of 5 deeds of gift by Haji Shafiullah and the plaintiff filed the amendment application on 30.05.1968 for amending the prayer whereby relief was sought for challenging the Patna High Court FA No.176 of 1976 dt.07-05-2013 22 said 5 gift deeds. In the amendment application, it was alleged that the plaintiff had no knowledge prior to the date of filing of the written statement and as soon as she came to know, she has filed the amendment application. The learned counsel for the appellants further submitted that in Title Suit No.43 of 1964 also, she was substituted on the death of Haji Shafiullah in the year 1966 and the amendment praying for challenging the gift deeds was sought for in the year 1968, the relief for setting the gift deeds is not barred by law of limitation. So far these submissions are concerned, it may be stated here that except the pleading in the plaint after amendment to the effect that plaintiff had no knowledge about the 5 gift deeds, there is no evidence adduced by the plaintiff in support of the said fact. It is settled principles of law that pleading is not the proof of the fact alleged. Therefore, the pleading cannot be relied upon if it is not supported by evidence. Therefore, here, there is no evidence that the plaintiff had no knowledge. Since the documents are registered documents and the plaintiff is claiming through her father, Haji Shafiullah and she is bound by the written statement filed by Haji Shafiullah in Title Suit No.43 of 1964, the limitation will start from the date of execution and registration of the gift deeds and not from the date of knowledge of the plaintiffs. Had the plaintiffs claimed independent title, the matter would have been otherwise. Patna High Court FA No.176 of 1976 dt.07-05-2013 23
29. This matter may be looked in other way i.e. for Haji Shafiullah who had executed the gift deeds, the limitation started on the date of its registration and it expired also after three years in view of Article 58 and 59 of the Limitation Act. The plaintiff is the heir of Haji Shafiullah. According to her, she came to know in the year 1968 when written statement was filed by defendant nos.2 and 3. If now the plaintiff will die then the heir of plaintiff will say that I had no knowledge about the gift deed and he will file another suit challenging the gift deed making allegation that he had no knowledge prior to institution of the suit about the gift deed. Whether this can be allowed? In my opinion, never. In other words, because the heirs are claiming through Haji Shafiullah, no independent limitation will start from the date of their knowledge.
30. In the case of Sita Sharan Prasad vs. Manorma Devi, 2012(2) BLJ 165, this court has held that once plaintiff has chosen to file suit for declaration that sale deed be adjudged as sham and inoperative document, three years of limitation as provided in Article 58 or 59 would become applicable. In the said decision, the registered sale deed was under consideration which was challenged. Here, the difference is, the registered gift deed has been challenged. However, the same Article will apply for the relief claimed by the plaintiffs.
Patna High Court FA No.176 of 1976 dt.07-05-2013 24
31. The learned counsel for the appellants submitted that in the trial court the question of limitation was never raised by the defendants-respondents. Therefore, no issue was framed. In such circumstances, the respondent cannot be allowed to raise the question of limitation before this First Appellate Court. In support of his contention, the learned counsel relied upon a decision of this court reported in 1996(1) PLJR 132( Haquik Mian vs. Rajendra Prasad and others) and AIR 1963 Supreme Court 1165(Banarasi Das and Anr. vs. Kanshi Ram and Ors.). From perusal of both these decisions relied upon by the learned counsel, I find that it has been held that in the second appellate stage, the question of limitation being mixed question of fact and law cannot be allowed to be raised without their being any foundational fact. Here, in the present case, we are not deciding Second Appeal. This is a First Appeal filed under Section 96 of the C.P.C. Section 107 of the C.P.C. provides that "subject to such conditions and limitations as may be prescribed, an appellate Court shall have power- (a) to determine a case finally (b) to remand a case
(c) to frame issues and refer them for trial (d) to take additional evidence or to require such evidence to be taken and sub section 2 of Section 107 provides that "subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of Patna High Court FA No.176 of 1976 dt.07-05-2013 25 original jurisdiction in respect of suits instituted therein."
32. Section 3(1) of the Limitation Act provides as follows:
"(1) Subject to the provisions contained in sections 4 to 24(inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
33. In view of this position, a duty has been cast on the court to dismiss the suit on the ground of limitation even if point of limitation has not been set up as a defence. From perusal of the written statement of the defendant nos.2 and 3, it appears that they have pleaded specifically that the suit is barred by law of limitation. Moreover, even if it is not pleaded then also it is for the court to see the question of limitation and in view of Section 107 of the C.P.C., the appellate court should act and perform the same powers and same duties as are conferred and imposed on the courts of original jurisdiction. Here, it will not be out of place to mention that there is factual foundation to the effect that the gift deeds were executed in the year 1962. The plaintiff herself has challenged these gift deeds. Now, therefore, in view of Article 58 and 59, the suit could have been filed within three years for setting aside the same on any ground. Therefore, foundational basis is there. Only the law of limitation is Patna High Court FA No.176 of 1976 dt.07-05-2013 26 required to be made applicable. In view of Article 58 and 59, it is for the plaintiff to prove that on particular date, the cause of action arose or that she came to know about these registered gift deeds but as stated above, there is no evidence and moreover, she is claiming through Haji Shafiullah, her independent knowledge is not material because she will be bound by the knowledge of Haji Shafiullah who has admitted execution of the sale deeds. Haji Shafiullah was the best person who could have challenged the gift deeds on the ground of void or voidability. Further, P.W. 34 who is son of plaintiff himself has admitted in his evidence at paragraph 8 that her mother was party in Title Suit No.43 of 1964 and he was doing pairvi on behalf of her mother. D.W.26 who is defendant no.1 has also admitted that in Title Suit No.43 of 1964, the gift deeds were filed.
34. Now, let us consider the decisions relied upon by the appellant. The appellant has relied upon 1997(2) PLJR 205(Rukaiya Begum & Ors. vs. Fazalur Rahman & Ors.). On the strength of this decision, the learned counsel submitted that there is no presumption of jointness and joint family business in Mohammedan and property acquired by one wife or Muslim person by registered sale deed cannot be presumed to be joint family property or it has been acquired benami in the name of the person in whose name the registered sale deed stand. This decision has been relied upon Patna High Court FA No.176 of 1976 dt.07-05-2013 27 regarding the property of Exhibit B/1 and B which are in the name of defendant no.1 and four brothers respectively. The plaintiff is not claiming any share in these properties. Her statement in the plaint is that the property covered under Exhibit B/1 is the property of defendant no.1 whereas the property covered under Exhibit B is the property of four brothers. However, the finding is contrary. Therefore, any finding recorded by the court below regarding this property and decree passed is against the brothers. It has been held that the property covered by Exhibit B is the acquired property of Haji Shafiullah. Therefore, four brothers could have been aggrieved by the said finding. How the plaintiff can challenge this finding and likewise, her statement is that the property under Exhibit B/1 is the property of defendant no.1 which has been held to be the self-acquired property of defendant no.1, in any case, so far this portion of the decree passed by the court below is not against the plaintiff. Therefore, in my opinion, the plaintiff cannot be said to be an aggrieved person. At her instance, in this appeal, it is not necessary to decide as to whether the property standing in the name of four brothers was acquired by Haji Shafiullah or it was the self-acquired property of four brothers. Two brothers are saying that it is the property acquired by the father. Defendant no.1 is saying that it is acquired by four brothers. Defendant no.1 did not challenge this part Patna High Court FA No.176 of 1976 dt.07-05-2013 28 of the decree. How the plaintiff can be allowed to challenge particularly when the said property has already been gifted by Haji Shafiullah. Even if it is held that it is the self-acquired property of four brothers, the plaintiff will have no share in the property. In my opinion, therefore, this question is only academic and has got no relevance for decision in this appeal.
35. The learned counsel on the point of limitation, further relied upon 1981 PLJR 325(Sri Rajpati Prasad vs. Most. Kaushalya Kuer & Ors.). From perusal of the decision, it appears that it has been held that in Second Appeal, the question of limitation cannot be allowed to be raised for the first time. I have already discussed much in the preceding paragraph on this question. In that light, it is simply held that this is also not applicable in the present case.
36. In view of my above discussion, I find that the plaintiff has failed to prove her case that any undue influence was exercised by the defendants on Haji Shafiullah or that Haji Shafiullah was physically not fit and mentally not sound at the time of execution of the 5 gift deeds. Moreover, the relief claimed by the plaintiff regarding these 5 gift deeds is barred by law of limitation. In my opinion, therefore, the learned court below has rightly dismissed the plaintiff's suit for declaration regarding the gift deeds.
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37. In the result, this First Appeal is dismissed with cost of Rs.10,000 to be paid by the appellants to the contesting respondents within two months failing which the contesting respondents are at liberty to realize the cost through the process of the court.
(Mungeshwar Sahoo, J) Saurabh/-