Mosammat Salema Khatun Bibi vs Sk. Abdul Matleb & Anr
2021 Latest Caselaw 4324 Cal

19.08.2021

PG S.A. 411 of 2016 r

Mosammat Salema Khatun Bibi Vs.

Sk. Abdul Matleb & Anr.

Mr. Sibnarayan Chattopadhyay......for appellant

Mr. Chattopadhyay, learned advocate

appears on behalf of appellant, who was plaintiff and

unsuccessful in both Courts below. His client had

sought cancellation of hiba-bil-iwaz dated 31 st May,

1974 executed by defendant no. 1 in favour of his

wife, defendant no. 2. Consideration for the execution

was deferred payment of dower but appellant's case is

that the dowry was paid immediately. Hence, the

hiba-bil-iwaz was fraudulently executed to deprive

appellant from benefit of the subsequent sale deed

executed in his favour on 26 th June, 1974 and

registered on 28th June, 1974. To query from Court he

submits, the hiba-bil-iwaz was registered. He submits

further, by cancellation of hiba-bil-iwaz, his client will

then have good title under the sale deed.

We have perused judgments of the lower

Courts. There has been clear finding on facts that the

hiba-bil-iwaz was executed and registered.

Subsequent thereto, appellant without causing

search, purchased subject matter of the hiba-bil-iwaz

for consideration of Rs. 1999/-.

Section 31 in Specific Relief Act, 1963

provides for when cancellation may be ordered. Sub-

section (1) says-

"Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled."

Appellant, on execution of the hiba-bil-iwaz could not

have said that the instrument is void or voidable

against him. It is only after he got executed his sale

deed and thereafter on lapse of seven years he came

to Court to say that the hiba-bil-iwaz is void or

voidable and if left outstanding, will cause him injury.

Appellant may have, subsequent to the registration

and execution of the hiba-bil-iwaz, suffered practice

of fraud upon him by defendant no. 1 or both

defendants but that does not make the hiba-bil-iwaz

void or voidable. The trial Court found, defendant

no.1 had admitted to selling a different property to

plaintiff and the sale deed was drawn up by a deed

writer, who is plaintiff's relative. Plaintiff did not

depose though she participated in the negotiation,

nor did the attesting witnesses to the sale deed.

Further finding was defendant no.2 accepted the

hiba-bil-iwaz and took possession of the property.

Plaintiff had claimed recovery khas possession in the

plaint.

Appellant's case of prior execution of the

hiba-bil-iwaz to render invalid the subsequent sale

deed executed in her favour was disbelieved by both

the Courts below.

No question of law arises in the appeal.

S.A. 411 of 2016 is dismissed.

(Arindam Sinha, J.)

(Saugata Bhattacharyya, J.)